THE QUEEN v. NG WAI YUEN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1140 of 1985

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BETWEEN

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JUDGMENT

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1. Originally the appellants were jointly charged with attempted theft and each faced an alternative charge of loitering. The attempted theft charge specified that on the 6th January 1985 at Kowloon, the appellants did attempt to steal property from an unknown person. The appellants pleaded not guilty to the charges. The learned Magistrate found that there was no case to answer on the alternative charges and dismissed them. The appeal before me is against a conviction on the attempted theft charge recorded after trial on the 6th September 1985.

2. At the trial PW1, a police officer, gave evidence that the unknown person was, in fact, a Japanese tourist who had made a statement to the police but who had left Hong Kong on the same day as the alleged offence.

3. The first day's hearing took place on the 22nd April when the matter was then adjourned to the 5th July, on which date the charge was amended by adding the name of the Japanese tourist, "Koremasa Nakao". As the Japanese tourist was not called and as there was in the outcome, no evidence to establish that he was, in fact, named Koremasa Nakao". this passage was further amended, at a later stage in the trial, by striking out the name and inserting therefor the words "a Japanese tourist".

4. The charge arose out of an alleged attempted pickpocketing at the junction of Nathan Road and Middle Road, Kowloon. There were four police officers involved in the incident. Each appellant was arrested by one officer. The third officer stopped the Japanese tourist and his female companion who were unaware that anything had occurred. The fourth officer did not appear to have played any active part in the matter.

5. Only the arresting officers (PW1 & PW2) gave evidence in which they said that they observed the appellants acting suspiciously while on duty near the Ambassador Hotel in Nathan Road. They detailed acts by the appellants assisted by a third person driving a taxi, which it was suggested were preparations for an attempted theft by pickpocketing. One of the most telling observations said to have been made was of a series of acts which culminated in the 2nd appellant placing his hand into the Japanese tourist's back trouser pocket and withdrawing it empty handed after that person had been halted while proceeding across Middle Road by the deliberate action of the taxi driver. Whether or not such an observation was made was a crucial part of the Crown's case.

6. The 2nd defendant who gave evidence said that after he was stopped by the police officer, a black wallet was taken from him and that this was shown by PW2, the police officer who had stopped him, to the Japanese tourist and his female companion and that each indicated that it did not belong to them. This evidence was also of significance as it was suggested by the defence that it must cast doubt upon the evidence of the police officers because it would be unlikely, that they would show the wallet to the Japanese tourist if they had observed that nothing had been taken from him.

7. It was argued, in the first ground of appeal, that the trial was unsatisfactory because the name of the Japanese tourist had not been made known to the defendants or their legal advisers. at an early stage. It was submitted that this was a sufficient ground in itself to warrant this Court finding that the conviction was unsafe and unsatisfactory. I was not satisfied that there was any merit in this ground.

8. I turn now to the second ground of appeal. During the trial the statement by the Japanese tourist was given by the prosecution to Mr Huggins who appeared for the defence. In his statement the Japanese tourist had said that he was shown a wallet by the policeman who intercepted him. It should be noted that on noone's version of the  events was PW2 the person who intercepted the Japanese. Both of the policemen who gave evidence agreed, in cross-examination, that, if the wallet had been shown by anyone to the Japanese at the scene, they should have seen it. Evidence in the statement was, of course, not evidence in the trial. However, during the cross-examination of the 2nd appellant, Mr Huggins asked the Crown Prosecutor the following question: "Are the Crown challenging the evidence that Exhibit D2 (the wallet) was taken and shown to the Japanese?". Mr Tang, the Prosecutor, replied "No. I agree it was". Mr Huggins submitted that this admission by the Crown Prosecutor was an important fact to be weighed by the Court when it came to determine what had happened at the scene and that it was of great significance when weighing the credibility of the two prosecution witnesses. Given the content in which the admission was made it would have been open to Mr Huggins to argue that the admission was not only that the wallet had been shown but that it had been shown by PW2. He very fairly did not suggest that the admission went that far. He proceeded, upon the basis, rightly in my view, that the admission must be regarded as having been based on the statement made by the Japanese. The learned Magistrate in his statement of findings said:

"Counsel for the defence incorporated in his address matters which he alleged were to be found in a statement by the Japanese. Neither the remark by the prosecutor, nor the address by counsel for the defence could be regarded as evidence."

The "remark" by the prosecutor to which the Magistrate referred was the admission made by the prosecutor Crown Counsel, Mr Boucavt, suggested that the remark could not properly be regarded as "a formal admission" under section 65C of the Criminal Procedure Ordinance. I am unable, in this context, to see any distinction between "an admission" and "a formal admission". I am satisfied that the "remark" was an admission, and that it was binding upon the Crown and that it was conclusive evidence of the fact admitted. That being so, it was a fact which the Magistrate was required to take into account when coming to his conclusion. When weighing the evidence in this regard the Magistrate said that he was "left with the evidence of PW1 and PW2 and the 2nd appellant" and that "on that evidence I was satisfied that the 2nd appellant's wallet was not shown to the Japanese by PW2". He clearly refused to consider the fact admitted. He should have considered not only the evidence of PW1 and PW2 and the 2nd appellant on this matter but also the admission by the Crown that the wallet "was taken and shown to the Japanese". This evidence which the Magistrate felt he was not called upon to consider was clearly relevant to the credibility of PW1 end PW2. I wish to make it clear, when saying this, that I am giving no indication as to the weight, if any, that should have been given to this evidence. I am saying only that it was relevant and should have been considered. This was a material irregularity and I am satisfied that the appeal is entitled to succeed upon this ground.

9. I turn now to the third ground of appeal. The Magistrate, when assessing the evidence of the police officers as to their observations of the act of attempted theft, said, when referring to a photograph which was in evidence which showed the relevant section of Nathan Road, "I pass the corner of the Ambassador Hotel on almost every working day and would be able to see very clearly what PW1 and PW2 say they could see if in fact it happened while I was passing. Photograph 18, Exhibit P DA does not show the other side of the road as the human eye sees it because the perspective is distorted by the camera lenses. The barrier in the middle of the road does not obstruct the view because it is below the line of sight between the eye level of a man standing on the east side of Nathan Road and the level of the trouser pocket of a man on the west side."

10. The Magistrate also used his knowledge of the scene to refute a suggestion by defence counsel that the Ambassador Hotel was not a good vantage point. I do not consider that this second observation is of any real significance.

11. The first observation stands on a different footing. It was as to a matter of considerable, if not vital, significance in the trial. If the police officers were unable to observe what they said they had seen, then clearly all of their evidence were suspect. If, on the other hand, no doubt could be cast upon their ability easily to make their observations then, unless there were other matters which would suggest that they were not truthful, their evidence was worthy of belief. I do not, in this matter, need to canvass the extent to which it is proper to use personal knowledge of local conditions which has not been revealed to the parties at the trial when making a final assessment of the facts. I am satisfied, given the circumstances of the case that the Magistrate went clearly beyond what was proper and should not have used his personal observations to contradict the photographic evidence on the way in which he did. There were at least three courses that would have been open to him. Either he could have told Counsel at the trial that he had personal knowledge of the scene and allowed them to address him upon the propriety of using it, or he could have put his personal observations from his mind or he could have directed that there should be a visit to the scene with all parties present.

12. Whatever may have been the propriety of such a use of personal knowledge I was concerned that the observation itself might, when one saw the scene, be so unarguably a common sense correct one that there was no substance, as a matter of fact, in this ground of appeal. I, therefore, reopened the trial and visited the scene with counsel and the appellants.

13. I was satisfied from this visit that the matter could only have been properly dealt with by a visit in the course of the trial after specific evidence as to positions of the persons involved at the material time.

14. The conviction is bad also on this third ground. I am satisfied, despite submissions from Mr Huggins, that this is an appropriate case in which to order re-trial and order that the matter be retried by another Magistrate at the earliest available date.