R. v. CHAN Kwok-wai

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 276 OF 1994

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J U D G M E N T

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1. On 21st January 1994, the Appellant was convicted by Mr. G. Tallentire of one charge of attempted theft. On 18th February 1994, the Appellant was sentenced to 6 months' imprisonment. He appeals against conviction but has abandoned his appeal against sentence.

2. At about 11 p.m. on 26th November 1993, two police officers were patrolling together at the junction of Jordan Road and Parkes Road where they noticed the Defendant. They observed him for a few minutes, and they noticed that he paid attention to old men aged between 50 and 60 who carried waist bags. He was observed carefully. The police saw a 60 year old who was trying to cross the road. The Defendant approached the man and one of the police officers saw the Defendant holding something in his right hand. When he was on the left hand side of that man, the Defendant lifted his right hand and cut the waist bag of the man with a razor blade using his right hand. The man ran across the road and was lost. The police went up to the Defendant and saw that he had a razor in his hand. When asked why he was carrying the razor he said he used it at work because he worked in a restaurant. The police officer then said, "I asked him why he cut the man's waist bag with the razor blade". He then remained silent. I then declared arrest on him for going equipped for stealing and I cautioned him, he said, "Ah Sir, give me a chance. I just use it at work". At 11.30 a.m. he was taken back to the police station and between 11.55 and 12.15 a.m., the police officer recorded a conversation with the Appellant, in the course of which, the Appellant answered ten questions. The statement was put in without challenge.

3. The Appellant gave evidence and said that he was a casual worker who on the day of his arrest had been working at a Cafe. He had the razor with him because he needed it for his work - sometimes he was a kitchen worker and sometimes he was a cleaner. The Appellant was cross-examined very briefly. The Appellant was a man of previous good character.

4. It is clear from the reasons for verdict that the magistrate accepted the evidence of the police officers and rejected the evidence of the Appellant and thus convicted the Appellant. However, there are the following unusual features of this case. The arrest took place on 26th November 1993. On 10th December 1993, the Defendant was charged with going equipped to steal. On 20th January 1994, an alternative charge of attempted theft was laid against the Appellant and that was the offence for which he was convicted.

5. As I have mentioned, a statement was taken and put in evidence without challenge. It is the nature of the statement which has caused me some concern. After having introduced himself, the police officer said, "I arrest you ... for possession of instrument fit for unlawful purpose, namely, a blade." Various questions were then put to the Appellant but at no stage during this questioning did the police officers put to the Appellant that they, as they subsequently told the magistrate, saw him cut or attempt to cut the waist strap of the waist bags from the man aged about 60 who was not found. I find this omission somewhat surprising. If the police officers did in fact see the Appellant use the razor in the way they have described, it is surprising, to say the least, that they never put that allegation to the Appellant shortly after the event when he was being questioned by them at the Police Station.

6. The original charge of going equipped for stealing simply said that the Appellant "not being at your place of abode, did have with you articles for use in the course of or in connection with theft, namely, a razor blade".

7. The alternative charge upon which the Appellant was convicted stated that the Appellant was charged that on the day and place in question, he "did attempt to steal from another person".

8. The amended brief facts which were produced as the Crown's opening simply stated that the police officers had the Appellant under observation and as the pedestrian light turned green, the Defendant followed the pedestrians to cross the road. The Defendant moved forward and followed one of the pedestrians. The police officers then moved forward and intercepted the Defendant. When they stopped the Defendant, they found a razor blade in the right hand of the Defendant. The Defendant was arrested and was taken to Yaumatei Police Station. The Defendant admitted that he had the blade with the intention of committing theft.

9. These amended brief facts, therefore, make no reference to the evidence which the police officers gave to the effect that they saw the Appellant use a razor to cut or attempt to cut the waist bag of the man in question.

10. Mr. Delaney who appeared on this appeal for the Appellant, but not below, pointed out that the allegation which this Appellant had to meet at trial was never put to him effectively until the first police officer went into the witness box. He submits this is an unsatisfactory state of affairs. He points out that the learned magistrate never adverted to the statement, and therefore, never focused on it at all nor attempted to determine why the statement was silent as to these matters or whether that made any difference to his views as to the reliability of the police officers. He further points out that on p.20 in para. 3 in the statement of findings, there are some basic errors of fact, but I am prepared to accept that these are no more than typographical errors. Mr. Delaney also referred me to the following passage on p.21 of the reasons for verdict where the learned magistrate said:

"The Defendant gave evidence and in assessing that evidence I bore in mind that he was a person of previous good character. Nevertheless I concluded from his demeanour and the version of events that he gave that he was not truthful. Accordingly I disregarded his evidence when it contradicted that of PW1. I found as a matter of fact that the Defendant did apply the razor blade to the waist bag of the unknown victim and that this in fact and law amounted to an attempt to steal in the terms of the alternative charge."

11. Mr. Delaney says that this is only a direction in relation to credibility and does not import a reference to the second limb in R. v. Vye [1993] 1 WLR 471, which relates to propensity. Mr. Delaney accepts that if this was the only ground of complaint, he would not be able to support the appeal, but, when coupled with the first ground, there are sufficient grounds, he submits, for me to find this conviction unsafe and unsatisfactory.

12. So far as the point relating to the Vye direction is concerned, I reject the submission. The way in which a professional judge, sitting without a jury, directs himself on points of law is, as has been said by the Court of Appeal on many occasions, quite different to the way in which a judge is required to direct a jury. The learned magistrate obviously had in mind the question of good character, and I did not think it is necessary for him to have to incant all the words in Vye in order to satisfy an appellate tribunal. Had he, however, failed to mention the Appellant's good character, then that would have been an error which would have justified allowing the appeal on its own.

13. At the end of the day, there is only one point in this appeal, and that is whether the conviction is unsafe and unsatisfactory, because the learned magistrate never applied his mind to the obvious discrepancy between the questions and answers at the time, and the evidence which the police officers gave sometime later.

14. In my judgment, it is unfortunate that the learned magistrate did not deal with this issue at all. There might have been an explanation which would have satisfied him and this court. Nevertheless, the question was not even considered. The statement was before the magistrate and he made no attempt to square it up with the evidence given by the police officers, nor did he attempt to take it into account when deciding on their credibility. It is fair to say that Defence Counsel made little or no use of this statement, but nevertheless, it was the magistrate's duty to weigh up the evidence which was placed before him which in this case included the recorded questions and answers.

15. At the end of the day, on this ground alone, I have a lurking doubt as to whether this conviction is safe. There was evidence provided to the court after conviction that the Appellant was of inadequate personality, and I think it a great pity that in such a case where the Appellant was a man of previous good character, the allegation which he had to meet at his trial had not specifically been put to him in any material way prior to the police officers going into the witness box. In all the circumstances, therefore, I propose to allow this appeal, set aside the conviction and sentence.