HKSAR v. LI LAP SUN

HCMA621/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.621 OF 2001

(ON APPEAL FROM ESCC 105 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction only. The appellant was convicted of theft by a magistrate at Kwun Tong Magistracy on 29 May 2001 after trial.

2. The facts of the case, so far as they are relevant to this appeal and as found by the magistrate, are that the appellant took PW1's (the victim's) bag which contained, inter alia, a mobile phone and a change purse from where the victim had left it outside a photo booth while she had her photo taken.

3. Subsequently, he took it to a location near a goods lift on the same floor of the building and removed the phone and change purse. He then abandoned the bag and the balance of its contents there and apparently went to the area of a nearby video game centre.

4. A short time later, he was arrested by police apparently acting on information provided by PW2, a girl unconnected with PW1, who had seen him carrying the somewhat distinctive bag past her earlier on. The bag itself was found by PW3, a police officer, nearby the goods lift.

5. In convicting the appellant, the magistrate had rejected his version of events to the effect that he, the appellant, had taken the victim's bag as a trick or as a punishment he wished to inflict upon her for having left it in a place outside the photo booth she was using so that it caused an obstruction. He said he intended to hand it to the security staff of the building so that she would be eventually able to recover it, but only after, apparently, she had undergone some anxiety after finding it missing. He did this to teach her a lesson.

6. But after taking the bag, the appellant felt the need to urinate. Accordingly, he went with the bag into a male lavatory which was located in the vicinity of the video game centre. There, he accidentally splashed the bag with urine. He decided to leave it there to dry, but took from it the victim's mobile phone and coin purse, he said, to prevent them further getting wet.

7. Subsequently, he was intercepted by the police. He had the mobile phone and coin purse on him. When questioned about them, he remained silent. He later, at the police station, made a statement under caution. That statement was to the effect that he "had not deliberately taken the items".

8. The evidence of PW2 is relevant. She said she saw the appellant walking past her with the bag on an initial occasion and later return still carrying the bag. This evidence was relevant, because if the appellant had in fact done so, he would, upon his return, have been travelling more or less away from the goods lift area where the bag was found. Accordingly, in this regard, PW2's evidence was consistent with and tended to support the evidence of the appellant.

9. There are five grounds of appeal. The first ground of appeal is to the effect that the learned magistrate had wrongly approached evidence as to entries in the notebook of the police witness PW3 which Mr Coghlan for the appellant suggests must have originally come from the information provided by PW2. In his notebook, PW3 had recorded, and then crossed out, an entry to the effect that the appellant had carried the bag at some time away from the goods lift area where it had been found. Mr Coghlan suggests this entry, although crossed out in the notebook of PW3, is relevant in two ways : firstly, he said it is consistent with PW2's evidence at trial to the same effect and shows she was not "muddleheaded" as the magistrate had found her to be. That would mean that her evidence may have been given greater weight had the magistrate approached PW3's notebook entry in this way. In failing to do this, Mr Coghlan argues, the learned magistrate was wrong.

10. I do not think that is correct. The learned magistrate exhaustively considered the evidence of PW2 before finding she was "muddleheaded". He said :

"Having said in examination-in-chief that she next saw the defendant after the corridor in the amusement games centre and having confirmed that in cross-examination she then agreed in cross-examination that he came out of the corridor and into the arcade, but initially denied that he was still carrying the pink bag. Then when her statement was put to her, in which she did not mention carrying the bag, and which she seemed to have some difficulties in reading, she then accepted the suggestion that he was still carrying the bag at that point."

11. In my view, the learned magistrate was perfectly entitled to conclude that PW2 was, although honest, a muddleheaded and therefore unreliable witness at trial. The fact that it may have been that she had also been consistently muddleheaded at the time she was providing any information to PW3 does not improve her reliability as a witness. That was obviously what the magistrate found. He said in reference to the deletions in PW3's notebook :

"... I am sure that this whole point arose from PW2's muddleheadedness. I found her to have been an honest but a confused and confusing witness, so much so that at the end of her evidence I had to go over the main points of what she had said to ensure that I understood correctly what she was saying."

Implicit in what the magistrate is saying is that he accepted that the deletions in PW3's notebook were also caused by the confusing and difficult nature of PW2 as a witness.

12. This finding by the magistrate obviously includes within it his acceptance that the crossed out entry in PW3's notebook had no adverse effect on PW3's credibility, which is the second point Mr Coghlan raises in respect of this area of evidence.

13. In short, the learned magistrate properly addressed the issue of both PW2's and PW3's credibility and the effect on their credibility of the deletions in PW3's notebook. If he did not directly deal with these matters in the terms argued before me, it was quite simply because they were not raised before him in the same form. Before the learned magistrate, the attack on PW2 and PW3's credibility and the relevance of the deletions in the notebook of PW3 were argued on the basis of allegations of collusion between PW2 and PW3. Those allegations were also properly deal with and dismissed by the learned magistrate in his Findings of Fact.

14. The second ground advanced on behalf of the appellant is that the learned magistrate took the wrong matters into account in dealing with the issue of where the bag was found. The specific complaint is that in finding that PW3 located the bag in the vicinity of the goods lift the learned magistrate gave the following reasons :

"... I am sure that he found a bag in the corridor by the cargo lift. That accords with the general tenor of the evidence, with the common sense and inherent probabilities of the situation and with PW1's evidence about the state of the bag. ..."

15. Mr Coghlan suggests the magistrate, in using general and sweeping references to the evidence was, perhaps, deciding a question of fact without restricting himself to the actual evidence before him, and perhaps going outside that evidence. But all the magistrate was really saying there was that he had arrived at his conclusion after taking into account the evidence as a whole and from a common sense point of view. He was perfectly entitled and indeed obliged to do so. Further, he subsequently went on to give specific reasons for his findings in the paragraphs that followed the statement that is complained of. Accordingly, there is no merit in this ground of appeal.

16. I will now deal with the fourth ground of appeal. In that regard, the appellant argued that the learned magistrate failed to take into account two important facts : firstly, that the appellant had not sought to flee from the scene of the offence and was still in the general vicinity when the police arrived and that, secondly, when the victim's mobile phone was found on him, it still had the original SIM card in it.

17. I do not think there is any merit in this ground of appeal. Neither of these matters were urged upon the magistrate as so warranting his consideration by counsel before him at trial. Both matters form only part of the facts of the case as a whole. The magistrate was not obliged to and indeed could not have dealt with every evidential issue which arose in his Reasons for Verdict or Statement of Findings. Indeed, it may be said that both matters carry within them ready explanations as to why they were perhaps regarded by both counsel for the appellant and the magistrate as not being of great weight. In short, there is no merit in this ground.

18. The fifth ground of appeal was incorporated with leave into the appellant's grounds of appeal at the hearing. It was that the magistrate in his findings and verdict had used on occasion excessive and intemperate language. It was urged upon me that in referring to the appellant as a "liar" and to parts of his case as being "absurd", the magistrate had gone too far and had demonstrated he had not given proper consideration to the appellant's case. I disagree. The magistrate on occasion used firm language in his Findings of Fact. He was entitled to. The words he used did no more than accurately state those findings. Those findings were based on a careful and logical analysis of the evidence and arguments advanced before him and expressed in clear terms what he found the realities of the case to be. That is as it should be.

19. I now turn to the third ground of appeal. Mr Coghlan candidly and accurately prefaced his submissions in respect of this ground with the observation that it had little merit in common sense, but that it was wholly supported by the law. The basis of this ground of the appeal is that the learned magistrate went further than permitted in his comments on the appellant's silence on being first questioned by the police. At that time, the appellant had said nothing in response to those questions although later at the police station, he had made the somewhat cryptic statements recorded in the record of his interview.

20. Considering the appellant's silence when first questioned, the learned magistrate said this :

"The defendant had not been cautioned at that stage but he still had the right to remain silent. However, in the circumstances of this case his innocent possession of PW1's property screamed out for an explanation. After all, he says he was going out because he had seen the police and was walking out to see if they were involved with the missing bag. A spontaneous explanation, even if it was, 'Sorry, this is just a joke,' would be expected and the phone and the coin bag would have been in his hands, not out of sight in a pocket, or tucked into his trousers."

21. It is that passage of the magistrate's Statement of Findings which is particularly complained of. It may well be thought that the learned magistrate's comments in this regard are, quite simply, a reflection of solid common sense.

22. In the present law of Hong Kong, however, adverse comment on a defendant's exercise of his right to silence is constrained. As Stuart-Moore VP said in HKSAR v. Del Carmen [2000] 3 HKC 431 :

"Whilst common sense might dictate that the failure on the part of a defendant to reveal a defence at an opportune moment prior to trial is something to be weighed in the scales when determining how much weight to attach to a defence first raised at trial, it seems that common law precedent is generally opposed to permitting the judge making any comment which invites the jury to use this feature of the evidence in this way."

23. In the recent case of HKSAR v. Cheng Chun Ming, CACC356/2000, Wong JA gave judgment in an appeal which complained of a trial judge stating in his Reasons for Verdict in regard to a defendant on trial for handling a stolen motor vehicle, and who had remained silent after caution, the following :

"... Yet, it never occurred to the defendant to tell the police that this was the man from whom he had innocently purchased the vehicle, nor occur to him to insist that Hui, who was with him there in the police station on these occasions, should confirm that fact to the police."

Wong JA said in his judgment in regard to that complained-of passage :

"The authorities are clear. In commenting, not only extensively, but also adversely, on the Applicant's silence when he was interviewed or confronted by the police, the judge had clearly overstepped the prohibited boundary and thereby committed an error of law. ..."

24. He then went on to say that given the preponderance of evidence in that case, the proviso pursuant to section 83(1) of the Criminal Procedure Ordinance would be applied.

25. When his lordship was referring to the authorities on this point being clear, he was referring to a line of authorities accepted in Hong Kong for many years, and perhaps best represented in its statement of principle in R. v. Lau Sau Wah, CA1174/1982, where McMullin V-P said :

"Where the Judge is drawing the jurys' attention to the failure of the accused to (a) say anything at all by way of innocent explanation or (b) to disclose an obvious and vital part of his defence when apprehended (then) whichever is the case, and whether it be before or after caution, anything said by the Judge which amounts to an invitation to disbelieve the accused's defence goes too far."

26. In my judgment, the learned magistrate's comments in the present case, on the present law, did go too far. He clearly took the appellant's silence into account against the appellant in finding that the appellant's version of events "held no water". That finding was certainly a material finding in this case. Accordingly, the appeal must succeed on this ground.

27. In arriving at that conclusion, I must say that the present common law in Hong Kong seems unsatisfactory in this regard. In England in the last few years, the common law has been changed. Such comments, as the learned magistrate made in the present case, are permitted. The new law in England would seem to accord with common sense. It may be that serious consideration should be given, in regard to this particular area of law in Hong Kong, as to the desirability of bringing into being similar legislation to that which now exists in England.

28. So far as the present case is concerned, I have no power to apply any proviso. I have heard argument by counsel as to the merits of a retrial. In my view, in the circumstances of this case, it is in the communities interest that a retrial is ordered.

29. Accordingly, the appellant's conviction is quashed, his sentence is set aside and I order that the matter be retried before another magistrate.