THE QUEEN v. CHAN PUI-FUN

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Headnote

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Magistrate's duty to evaluate evidence and give reasons for findings of fact. Appeal Court may uphold conviction if guilty of reasonable inference on facts.

IN THE SUPREME COURT OF HONG KONG

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JUDGMENT

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1. The appellant was convicted of theft in Western Magistrates' Court. It was a shoplifting case. She was fined $500, but appeals only against her conviction.

2. The appellant is a respectable, wealthy, middle-aged, married woman. At lunchtime on 1st August this year, she went to Watson's The Chemist in Melbourne Plaza. It is an open-plan type of shop with multiple entrances leading from the corridor of the plaza. The cashiers' desks are dotted about, instead of being only at the exits. This means that one can wander in, select an item, pay for it at one cashier's desk, carry on shopping, paying for items bought at other cashiers' desks and finally leave by a different exit.

3. There was a major conflict of fact between the evidence of the principal crown witness, a store detective, and that of the appellant. The former, a 29 year old ex-prisons officer, said she saw the appellant looking at sun-glasses and glancing from side to side. She was 4 - 5 feet away and decided to keep the customer under observation.

4. The appellant was holding a paper bag in her left hand. She was wearing a pair of ordinary spectacles, which she pushed up on her forehead while she tried on several pairs of sun-glasses. Eventually she selected a pair of Polaroid sun-glasses and held them in her left hand, to which she also transferred her own spectacles.

5. The appellant moved to a book rack nearby, where she turned the pages of some magazines. After a while she placed the sun-glasses in the paper bag. There was a bottle of Henna hair-dye on the book rack, which should not have been there. The appellant took it to a cashier and paid for it, but not the sun-glasses. She went towards one of the exits, but paused to look at the shampoo and hair-dye stall, which was next to the corridor. She then stepped out of the shop and was stopped by the store detective.

6. It is not clear, from this witness' evidence, how far the appellant went into the corridor. In chief she said she walked past a show-window displaying perfumes. In cross-examination she said she was 8 - 9 feet over the boundary, but later conceded she was standing on the boundary, half in and half out of the shop.

7. The store detective said to the appellant, Madam, there is something you haven't paid for" and, in reply to the appellant's query, told her she had not paid for the Polaroid sun-glasses in her paper bag. She asked her to come to the office, whereupon the appellant said, "Sorry Miss, the pair of glasses slipped into, my bag." The police were called and the appellant said she had never left the shop. There was $4,700 in her purse

8. The appellant's story was very different. She says the first thing she did in the shop was to buy a battle of Henna shampoo from a salesgirl, who directed her to a cashier's desk, where she paid. She then tried on some sun-glasses and eventually selected the pair of Polaroids in question. She put her own spectacles back on, in order to read the price tag, while she held the Polaroid sun-glasses in her left hand. The paper bag was over her forearm.

9. The appellant then moved to the book rack, where she held the books she was reading in two hands. When she had finished reading, she took off her spectacles and held them in her left hand with the sun- glasses. She went back to the salesgirl who had sold her the Henna shampoo, because she wanted to buy "some hair treatment oil, or conditioner, eye shadow or the like". She picked up a tube of what appeared to be tooth-paste and asked the girl if it was hair treatment (sic). The girl said it was the same as she had bought before, but a smaller size (which does not make sense) and directed her to the shampoo stall by the corridor, where she had bought the Henna shampoo.

10. It was at this point that she was stopped by the store detective. She agreed she had not paid for the sun-glasses and said she would do so when she had finished shopping. The girl told her she should follow her to pay and the appellant reluctantly acquiesced. But when they passed the cashier and the appellant said she should pay here, the store detective said she had been intending to steal. The appellant was furious at such slander and demanded to see the manager.

11. She was taken into the office, where the store detective snatched both pairs of glasses and placed them in the paper bag. She wanted to know what else the appellant had stolen and accused her of having only a few dollars in her bag. She then called the police.

12. In a short judgment at the end of the case, the magistrate correctly stated that the question was whether the defendant took the sun-glasses with the intention of depriving Watson's of their ownership. He said he did not believe the defendant's evidence, where it differed from that of the store detective, and found it cast no doubts on the Crown case. He found the charge proved accordingly.

13. The Statement of Findings contains a recital of the evidence, followed by one paragraph headed Findings of Fact''. This reads "I had to determine if the version of the appellant went so far as to the raise a doubt on the evidence of the store detective. After consideration of the versions given by P.W. 1 and appellant I formed the very positive view that the appellant had contrived her version in an attempt to lie her way out of the matter. The lies started with the claim that she placed the sun-glasses in her carry bag. The defendant's version was certainly possible but in considering all the evidence I came to the conclusion that such possibility fell well short of reaching a situation where it cast any doubts on the Crown Case. I accordingly found the charge proved and convicted the appellant.

14. Mr. Ching, who appeared for the appellant, complains that these findings are inadequate to sustain the conviction. He points out that disbelief of the appellant does not prove guilt. He submits that the magistrate has failed to evaluate the prosecution evidence and make findings of fact supported by reasons. Even if the magistrate believed the store detective, it was only open to him to draw the inference that the appellant intended to steal if such an inference was irresistible. In the circumstances, there must be a lurking doubt sufficient to make the conviction unsafe.

15. Mr. Ching directs my attention to some decisions of the Full Court and Court of Appeal. In PAU Wing - shing v.R. 1969 HKLR 47⁽¹⁾ it was held that it is not the correct approach to a decision in a criminal case to approach the question of the guilt or innocence of the accused on the basis of deciding which of two stories the Court should believe. In his judgment the magistrate had said ..... It is therefore for me to say whose story I believe, the evidence of Mak as corroborated by Lam or that of defendant. The appeal was allowed.

16. Clearly a situation may be envisaged in which neither story is true. In these circumstances the accused should be acquitted. Before it convicts, the Court must be persuaded that the prosecution case is true.

17. In the present case, the magistrate found he had no doubts about the Crown evidence. The fact that he phrased his finding as a failure, on the part of the defendant, to cast doubts on the Crown case does not, to my mind, alter the essential nature of his approach. That he was satisfied the Crown case was true is, in effect, what he is saying. He is not saying he believes the prosecution evidence because he disbelieves the defendant. See LOK Chi-wai v.R. 1977 HKIR 577.⁽²⁾

18. The second case was LAM Tin-chung v.R. 1970 HKLR 105,⁽³⁾ in which the appeal was also allowed, on the ground that the District Judge had failed to evaluate the evidence. Mills-Cwens J. said at p. 106 - 7, "Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes. That, however, is not the type of case we have in mind."

19. The present case, likewise, is one where, in my judgment, the magistrate should have gone further and stated his reasons for his primary findings of fact and for drawing an inference of guilt therefrom. He does not say why he believes the store detective and disbelieves the appellant. Nor does he state his reasons for concluding that, assuming the sun-glasses were found in the paper bag, she did not intend to pay for them eventually. He is therefore in breach of the duty enunciated by the Courts in IAH Tin-chung v.R.

20. In MA Dai-shuen v.R. Crime. App. No. 949 of 1978,⁽⁴⁾ 5 defendants were tried for conspiracy and the trial record ran to almost 200 pages. The Court of Appeal held that the findings were unhelpful and gave no indication whatever of the nature of the case for the prosecution or of the defence. They were little more than that the learned judge believed the prosecution witnesses, disbelieved the appellants and thought the only inference he could draw from all the evidence before him was that the appellants were guilty. That is a formula which could be applied to almost any criminal case where a defendant is convicted, and does not here constitute a sufficient 'short statement of the reasons for the verdict' within the meaning of Section 80 of the District Court Ordinance. Nevertheless, after a review of the evidence, the appeal court was convinced that the prosecution case was overwhelming and the appeals were dismissed.

21. The matter was also considered by the Court of Appeal in LAM Am-min and another v. R. Cr. App. No. 607 of 1979.⁽⁵⁾ O'Connor J., giving the judgment of the Court, confirmed that a District Judge has a duty to evaluate the evidence and to indicate how significant inconsistencies and conflicts were resolved. He noted that in Albert Wu v. R. 1961 HKIR 469⁽⁶⁾ the Court dismissed the appeal on the ground that, if the magistrate had approached his task in a proper manner, a conviction would without doubt have followed. He then accepted counsel's submission that the Court should be slow to apply the proviso where it would involve making an evaluation of the evidence without having had the advantage of seeing or hearing the witnesses. The judgment concludes, however, with these words, We are each of the firm opinion that on a proper consideration and evaluation of the evidence a judge, properly applying himself to his task, could not have failed to convict. The learned trial judge came to the correct decision, though he did not sufficiently, or with sufficient accuracy, formulate reasons. There was no chance fairly open to the appellant of being acquitted on the evidence and the errors of the learned judge have not deprived the appellants of any such chance. Accordingly we dismissed the appeals."

22. Turning back to the present case, the only inconsistency in the evidence of the store detective concerned the applicant's exact position when she was stopped. The magistrate properly resolved this in favour of the defendant by finding, in his judgment, that she was partly out of the shop. Otherwise, in spite of lengthy and rigorous cross-examination by leading counsel, she was totally consistent in her evidence.

23. The appellant, on the other hand, was asked only some half dozen innocuous questions in cross-examination. But her examination-in-chief revealed an improbable story. She knew where the hair product stand was, because shampoo was the first thing she bought. There was, therefore, no need to ask the salesgirl where to find "hair treatment oil or conditioner. Nor did the appellant explain why she walked around the store carrying the sun-glasses in her hand, instead of paying for them, as she paid for the shampoo. Furthermore, if she had wanted hair conditioner, why did she not buy it at the same time as the shampoo. Finally, there was the odd evidence about the tube of tooth-paste. She should not have expected to find tooth-paste and hair conditioner in the same place and should not, in any case, have confused them. In my judgment the magistrate was perfectly entitled to find that the store detective's evidence was true and that the appellant's was not.

24. It seems to me that, having come to this conclusion, there was only one reasonable inference to be drawn, namely that the appellant did not intend to pay for the sun-glasses. The appellant would not have put the sun-glasses in her bag if she had intended to pay for them. Her excuse - that they had slipped into the bag - was weak and improbable in the circumstances.

25. Even if I am wrong in this, the reaction of an honest woman would have been, Oh, I forgot all about them', not, "I intend to pay for them when I have finished my shopping", which the appellant maintains she said. This was arrant nonsense, because she had been stopped as she was leaving the shop. She had finished looking at the shampoo etc. and was stepping out into the corridor.

26. I conclude, therefore, that, if the magistrate had properly applied himself to his task, he could not have failed to convict. For these reasons the appeal is dismissed.

(1)    1969 HKLR 47

(2)    1977 HKLR 577

(3)    1970 HKLR 105

(4)    Crim. App. No 949 of 1978

(5)    Cr. App. No. 607 of 1979

(6)    1961 HKLR 469