HKSAR v. FONG CHUN KWOK

HCMA163/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.163 OF 2000

(ON APPEAL FROM NKCC NO.6247 OF 1999)

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J U D G M E N T

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1. After his trial before a magistrate sitting at the North Kowloon Magistracy, the appellant Fong Chun Kwok was convicted of one charge of theft, contrary to section 9 of the Theft Ordinance. He was sentenced to nine months' imprisonment, suspended for two years. He now appeals against his conviction.

2. At the trial, the prosecution called three witnesses. The prosecution's case was that at about 9:45 p.m. on 29 September 1999, at the ground floor of a shopping centre in Mongkok, the appellant was seen by PW1 to have unzipped the rucksack of a female who appeared at the trial as PW2 and took a cellular telephone therefrom. At that time, PW1 was descending from the 1st floor on an escalator. He went forward and intercepted the appellant who was said to have been holding the cellular phone in question. PW1 then alerted the victim, who made a report to the police. The police officer who arrived at the scene gave evidence as PW3 and when questioned about the alleged theft, the appellant indicated that he had nothing to say.

3. The appellant elected to give evidence and no defence witness was called. His account was that when he tried to enter the building, he found himself blocked by a group of people playing around at the entrance. Both PW1 and PW2 were part of this group. The appellant told the group to give way but they ended up exchanging offensive remarks towards each other. The appellant ignored the group and entered the building. Very shortly afterwards, the appellant was suddenly grabbed by PW1 from behind and he alleged that the appellant had stolen a mobile phone from PW2. The police was summoned to the scene.

4. The appellant's case at the trial was that he never committed the offence and he was being framed up by members of the group because of the earlier dispute.

5. The learned magistrate was not impressed by the account of the appellant. He rejected his version of events and he accepted the evidence of PW1 and PW2. He then found the charge proved against the appellant and convicted him.

6. In his evaluation of the evidence, the learned magistrate spotted some five inconsistencies in the prosecution evidence and considered them in detail. The first inconsistency was the evidence regarding the age of PW1. There was evidence coming from PW1 that he was 22 and, later, he told the court that he was in fact 24 years old. The learned magistrate concluded that this aspect of PW1's evidence was immaterial and it did not affect the witness' honesty and reliability.

7. The second area of inconsistency was in respect of the hand which the appellant was alleged to unzip PW2's bag. PW1 said the appellant used his left hand whereas PW3, the police officer who arrived at the scene after the incident, said PW1 told him that he saw the appellant using his right hand. The learned magistrate accepted the evidence of PW1 and the inconsistency to PW3's faulty recollection.

8. The third discrepancy was considered by the magistrate as an important discrepancy. It was the part of the evidence where there was a demonstration before the court of how the appellant was observed to be unzipping PW2's bag. In the course of the demonstration, the zipper appeared to have caught momentarily a couple of times during the unzipping. The learned magistrate resolved this discrepancy by finding that at the time of the alleged theft, there must have been other personal items of PW2 inside the bag. The weight of the items would have made unzipping the bag much easier. The learned magistrate found that this discrepancy did not affect the credibility of the main prosecution witnesses.

9. The fourth area of discrepancy was the distance between the appellant and PW2 when she was being interviewed by the police officer. PW2's version was that the appellant was standing about 25 feet from her. The police evidence, however, was that the appellant was standing close to PW1 and PW2. The learned magistrate found this apparent inconsistency did not affect the credibility and reliability of the prosecution witnesses.

10. The last area of inconsistency, the learned magistrate found, was the nature of the incident which was being reported to the police. The learned magistrate considered that the nature of the report and the identity of the person who made the report was a matter of weight, and he had given it careful consideration in arriving at his verdict.

11. Mr Cheng Huan, SC, for the appellant contended that the Statement of Findings is fundamentally flawed in that the learned magistrate indicated that he preferred the evidence of the prosecution witnesses to that of the appellant on no less than five occasions. The effect of such liberal use of loose terminology would leave one with the impression that the learned magistrate had applied a wrong standard of proof. The conviction, therefore, is unsafe and unsatisfactory. In support of his argument, Mr Cheng relied on the case of Chan Wing-yuen v. The Queen [1977] HKLR 186.

12. The first indication of preference by the learned magistrate on the evidence appears under paragraph (b) at page 4 of the Statement of Findings, it reads as follows :

"... I found after careful consideration that this was a matter to which I should give weight when assessing the whole of the evidence, but I found after so doing that I still preferred the evidence of the prosecution witnesses to the Defendant's evidence and I still found I could accept PW1's evidence as truthful and reliable." (my emphasis)

Over the page towards the end of paragraph (c), there is this passage :

"... I found after giving careful consideration to this matter that whilst I should give weight to it when assessing the honesty and reliability of PW1 and PW2's evidence, I still found in the end that I preferred the prosecution evidence to that of the Defendant's and it did not create any doubts in my mind upon the credibility and reliability of the prosecution evidence." (my emphasis)

A similar reference also appeared at page 6 :

"However I found after considering all the evidence that whilst it carried weight in my assessment of the evidence I still found that I preferred the evidence of the prosecution witnesses to the Defendant's and I still found that I was satisfied beyond reasonable doubt that PW1 and PW2 were honest and reliable witnesses and that I could accept their evidence." (my emphasis)

The three passages above appeared in the body of the Statement of Findings where the learned magistrate had evaluated and attempted to resolve the inconsistencies of the prosecution witnesses. If it was merely confined to his view in preferring the evidence of one prosecution witness to another prosecution witness, this approach would have been unobjectionable. A magistrate is entitled to take a global view of the prosecution evidence and, in so doing, he is at liberty to accept the evidence of one witness over that of another witness if there were discrepancies between their respective account of the events. However, the following passages appearing in paragraphs 15 and 17 of the Statement of Findings are causes for concern. He said :

"... I rejected the Defendant's account of the grabbing as I found upon considering all the evidence and after the appropriate warnings that I preferred the prosecution evidence on this part of the evidence." (my emphasis)

At this stage of the Statement of Findings, the learned magistrate was evaluating the evidence of the appellant and was stating his reasons for rejecting the appellant's account of the event. Further down at paragraph 17, he said :

"I rejected the Defendant's assertion that he had travelled with PW2 in the police van after the incident to the police station as I found, as I have said, that I preferred PW2's evidence to that of the Defendant." (my emphasis)

13. Apart from the using of the term 'preferred' on five occasions, the learned magistrate also resorted to using such terms as "high possibility", "high probability" and "inherently probable". He performed a very detailed and thorough analysis of the evidence and apparent inconsistencies in the evidence of the case. It was unfortunate that he had chosen to resort to using equivocal terms. The result it created on the mind of any reader must be that he was trying to balance the defence and prosecution accounts of the events against each other and since he preferred the evidence of the key prosecution witnesses, the appellant's account must be rejected. This is hardly a style which one would expect from an experienced professional magistrate.

14. In Chan Wing-yuen (supra) at page 191, McMullin J (as he then was) said :

"... Although an appellate court must be slow to find the possibility of error in the application of a fundamental principle, this particular principle suffers from the difficulty that in applying it where the issue is purely or principally one of credibility of witnesses the most experienced magistrate or judge may sometimes be insensibly drawn through the necessary task of evaluating the quality of the testimony of each witness (which inevitably involves some degree of comparison between them), to a balancing of two stories. There may then be some danger of a failure to keep in mind that the prosecution case must stand upon its own feet and is not to be accepted merely because the other is rejected."

15. Mr Lee for the respondent argued that although the use of such terms by the learned magistrate was unfortunate, when looking at the Statement of Findings as a whole, the magistrate nevertheless had approached and evaluated the evidence correctly. He did not misapply the burden of proof. I do not think it is open to Mr Cheng to argue that the learned magistrate had mis-stated the burden and standard of proof. What causes concern is Mr Cheng's point that reading the Statement of Findings as a whole, the learned magistrate appeared to have adopted the approach that because he preferred the evidence of the key prosecution witnesses he must therefore reject the evidence of the appellant. He made no clear finding that he had found and accepted the prosecution evidence could stand on its own. This being the case, I am forced to conclude that it leaves a distinct impression on my mind that the learned magistrate could have misapplied the wrong standard of proof.

16. For the reasons given, I would allow the appellant's appeal. The conviction is quashed and the sentence is set aside.