HKSAR v. LAI CHEK KIN ADRIAN

HCMA807/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.807 OF 2002

(ON APPEAL FROM ESCC 43 OF 2002)

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J U D G M E N T

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1. The appellant was charged with the offence of theft and the particulars are that he stole one video compact disc and two compact discs at the store HMV in Wanchai. He was tried by Mr J.T. Glass at Eastern Magistracy on 15 and 16 July 2002.

2. On the second day of the trial the defence closing submission concluded at about 4:30 p.m. The learned Magistrate then adjourned to chambers and at 6:07 p.m. delivered his verdict and gave oral reasons which after transcription run into six pages of foolscap. The court rose at 6:24 p.m.

3. The magistrate convicted the appellant of the charge and fined him $2,000. He now appeals against the conviction.

4. During the trial the prosecution called three witnesses : PW1, the store security guard, PW2, a police officer and PW3, another police officer. The defendant himself gave evidence and called three witnesses : a psychiatrist, his uncle and his father. This was despite admitted facts having been made by the parties, the first of which effectively admitted that the appellant had committed the actus reus.

5. The three prosecution witnesses were called to try and prove that after the appellant was stopped by PW1 he said to PW1 in Punti, "Sorry I was in a moment of greed." PW2, the police officer, was called to give evidence of a similar verbal admission made to him but in the event the magistrate did not accept that evidence from PW2. PW3, the second police officer, was called simply to give the evidence that in the police station report room he had asked the appellant in Cantonese whether he wanted the matter to be reported to the Australian Consulate, the appellant being of Australian citizenship, and the appellant replied that it was not necessary. The magistrate accepted the evidence of PW1 and PW3.

6. The appellant's case was that on the day in question he was walking on the street in Causeway Bay when he was suddenly grabbed by two persons and pushed into an alley where two other persons were waiting. He was robbed of his money in the alley and the robbers then threatened him that if he did not go into the music shop HMV to steal as many compact discs as possible he would be chopped to death. The appellant's case was therefore that he only took the items in question because of the duress.

7. After he had taken the items and walked out of the store he was stopped by two security guards and taken back to the security room. He could not understand the Cantonese spoken by the security guards nor that of the policeman who arrived at the scene. He was very frightened and confused at the time and feared an attack upon him by the robbers. He did not mention to the security guards nor to the police officer that he had taken the items under duress by the robbers. He only mentioned this for the first time when his uncle came to the police station. After the appellant was bailed out his uncle took him back to his grandmother's home where the appellant had a meal. After the meal at about 11:00 p.m. the appellant went to the Wanchai police station to make a report to the police about the alleged robbery where he was the victim.

8. The learned Magistrate, when he delivered his verdict, found that he was not impressed with the appellant's evidence and found that he did not believe the appellant was telling the truth. The magistrate therefore rejected his evidence and found that he had deliberately made up the robbery story and he executed this deception upon his family once he was released on bail. The magistrate also found that the reporting of the matter later and the newspaper advertisements seeking witnesses to the robbery were all part of the appellant's ploy.

Grounds of appeal

9. Mr Chau, counsel for the appellant, who did not appear at the trial, put forward the following three grounds :

 

(a)	Ground 1 :
	The learned magistrate erred in rejecting the appellant's evidence on the basis of unproven evidence and/or by ignoring the undisputed evidence of the background of the applicant and/or by taking into account matters which no reasonable tribunal of facts should have done when :
(1)	the magistrate erred in disbelieving the applicant that he still had his mobile phone with him after the robbery because the phone had not been taken away by the robbers;
(2)	the magistrate erred in disbelieving the applicant because he said in evidence that he only took three discs because he did not want to raise the alarm;
(3)	the magistrate erred in concluding that the applicant knew that if he only took a few discs from the store he would be in serious breach of the instructions given by the robber;
(4)	the magistrate erred in disbelieving the applicant was of a clear mind because when he entered the store he noticed that there was only one entrance and one exit to the store and he realised this put him at risk;
(5)	the magistrate erred in concluding that the applicant did spend time selecting the VCD and CDs;
(6)	the magistrate erred in concluding that the applicant could communicate well enough in Cantonese to be able to make the admission to the security guard;
(7)	the magistrate erred in concluding that the applicant was not frightened when, in the security office, he had the presence of mind to take out $40 from his shoe to show the security officers;
(8)	the magistrate erred in projecting the experience of an adult onto the applicant when he concluded that the applicant should have felt fully protected either in the security office or in the police station to disclose what had happened to him;
(9)	the magistrate erred in failing to consider the fact that the $470, the balance of the money that the applicant's grandmother had given him that morning, had not been found on the applicant because that evidence supported the applicant's evidence of having been robbed;
(10)	the magistrate erred in not believing the applicant's evidence despite the fact that the $470 was not found; and
(11)	the magistrate only paid lip service to the concept that any inference which could be drawn must be the irresistible inference.

10. In disposing of this ground of appeal, I cannot help but observe that the defence advanced by the appellant at the trial was a very novel and unusual defence. However, this was his defence and he was entitled to pursue it at the trial. His defence was not helped by the fact that even after he entered the store and when the robbers were no longer with him, because his evidence was that one of the robbers remained outside the store when he went in, he did not take any steps to alert any of the staff of the store of his ordeal. Not only that, but when he was stopped and taken back to the security office, in the privacy of the security office he did not tell the security guards nor the police officer who arrived at the scene. Even back in the safety of the police station he did not tell anyone about his ordeal and he only told his uncle for the first time after he was bailed out by the police. It was hardly surprising then, in those circumstances, that the magistrate rejected this defence.

11. As early as 1961 in the case of The Queen v. R.E. Low [1961] HKLR 13, the appeal court said that an appellate court would not interfere with a finding which depended on the credibility of a witness except in the most exceptional circumstances. More recently in 1994 Keith J in The Queen v. Hui Kee Fung, HCMA196/1994 said :

"... appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. ..."

Keith J continues :

"... An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exist. ..."

12. The magistrate in the present case spent two days listening to the evidence of six witnesses when the issue in this case was quite a simple one. When he delivered his verdict the evidence was still very fresh in his mind and he had spent about an hour and a half going through the evidence before coming to a decision. When he gave his decision he gave detailed oral reasons for his verdict which were again repeated in his Statement of Findings which run to 11 pages of foolscap typing.

13. Not only do I happen to agree with the magistrate's conclusion, I think it would be perverse in the circumstances for me to reverse the finding of fact that he made that the alleged robbery was simply a figment of the appellant's imagination.

14. The second ground advanced by counsel was that the magistrate erred in concluding that the stress symptoms the applicant suffered came from his fear of the consequences of his arrest and not from the Post-traumatic Stress Disorder as diagnosed by the psychiatrist. In effect, this was a complaint that the magistrate should not have found that the psychiatrist had been deceived by the appellant and that the psychiatrist had made the finding that he did because it was based on a wrong premise.

15. The magistrate, in his oral reasons, found from the evidence of the psychiatrist and his report, that his assessment of the defendant was based to a very large extent upon him accepting that what he had been told by the defendant was the truth. In my view, once the magistrate rejected the evidence of the appellant, it follows, as night follows day, that he must reject the finding of the psychiatrist that the stress that he found in the appellant was caused by the ordeal he suffered in the hands of the robbers.

16. The last ground of appeal was that the magistrate erred in excluding the possibility that, given the background of the appellant as disclosed and undisputed by the prosecution, the appellant might have acted without knowing what he was doing without offering any reason or without carefully considering the testimony of the psychiatrist. Ms Pang appearing for the respondent submits that this ground was related to the psychiatrist's comment that a person might do the stealing in a subconscious act. She submits, and I agree, that the defence relied on by the appellant at the trial was one of duress and therefore the comment by the psychiatrist about subconscious stealing did not really assist the appellant for it was not his defence.

17. In my view the conviction is neither unsafe nor unsatisfactory, and the appeal is dismissed.