THE QUEEN v. NG YAU CHUEN

MA No. 670 of 1993

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H E A D N O T E

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AN INFERENCE OF GUILT CAN ONLY BE DRAWN FROM A PRIMARY FACT THAT HAS BEEN PROVED BEYOND A REASONABLE DOUBT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.670 OF 1993

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J U D G M E N T

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1. The appellant faced one charge of theft of two pearl necklaces and one pearl pendant. He was tried before Mr H.L. Brazier and was convicted of the theft to the necklaces. He now appeals against that conviction.

2. The facts were that on the 15th December 1992, Madam Wong, a business woman and her husband returned home to the premises at Waterside Plaza. They found the door unlocked but chained from the inside. They gained entrance and found that the premises had been burgled. For fear that the burglars might still be present, they remained in the living room and called the police. Uniform Branch Officers arrived and searched the premises but found nobody there.

3. Two CID officers arrived, Inspector Lee and the appellant. Inspector Lee went to the rooftop with the Uniform Branch officer and the caretaker whilst the appellant and Madam Wong went into Room No.2 which was the master bedroom. It was her evidence that she found jewellery and boxes scattered on the bed. She said that she noticed that her pearl necklaces were amongst the jewellery scattered on the bed. One ground of appeal is that there was inconsistency in her evidence about this point, but I do not consider any inconsistencies which are of importance. The fingerprint officer eventually arrived at the scene and he was in the bedroom. When he left Madam Wong went with him leaving the appellant alone in Room No.2. She then went back into Room 2 and saw the appellant pick up a diamond bracelet and he asked her if it was part of her possessions. She took that item back into the living room and the appellant remained in the bedroom. She went back into Room 2 and saw the appellant sitting on the bed, he picked up a Rolex watch certificate, gave it to her and told her to take it outside to put it away and she did so. When she returned to Room No.2, she saw the appellant walking towards the toilet. He entered the toilet and closed the door, she again went back to the living room to ask Inspector Lee if she could clear up in Room 2 and he told her she could, so she returned initially alone and noticed at that time two sets of pearl necklaces were missing. She went back to the living room to tell her husband and he then returned with her to Room 2 to search. While they were searching, the appellant had come out of the toilet. He then returned to the toilet. Madam Wong became suspicious of the appellant and told Inspector Lee. During this period, the appellant had again come out of and returned to the toilet. Inspector Lee knocked on the door of the toilet, called to the appellant to come out. They heard a flushing noise and the appellant then emerged from the toilet. Inspector Lee entered the toilet and found the pearl necklaces in the bottom of the toilet bowl.

4. After another investigating team had arrived, the appellant and the fingerprint officer were told to sit on the sofa in the living room. After about 5 minutes, Madam Wong saw the appellant stand up, put his hand in the pocket of his trousers, approached the window and she saw him throw something out of the window. She informed Inspector Lee. A search was carried out and a broken earring was found on the podium.

5. The appellant elected not to give evidence at the trial. The magistrate was satisfied that Madam Wong and Inspector Lee were witnesses as to the truth and that finding is not challenged.

6. The magistrate directed himself as to the law on inferences and went on to find that the overwhelming inference to be drawn was that the appellant had taken the necklaces and that he intended to permanently deprive Madam Wong of them. The inference that he drew was, he said, reinforced from the fact that the appellant had failed to give evidence. He was satisfied that the appellant had thrown something out of the window, but could not be satisfied beyond a reasonable doubt that it was the earring as the burglars had used that route to make their escape from the premises. Accordingly, he amended the change by deleting reference to the pendant and convicted the appellant.

7. One of the grounds of appeal is that the magistrate relied upon a fact which had not been proved beyond a reasonable doubt to draw the inference of guilt against the accused. The magistrate, in his Statement of Findings, said in relation to the case against the appellant :

“It was advanced by the Appellant and conceded by the Prosecution that the evidence against the appellant was circumstantial and based on inference.

I accepted that. I went on to find that the factors and facts from which inference could be drawn were the following: (Except where indicated, I found these ‘facts’ to have been proved beyond reasonable doubt).”

8. He went on to make reference to the necklaces being seen in Room 2, of the visits by the appellant to the toilet and return to Room 2, and on his finding that any man with minimal powers of observation should, and a professional police officer must, have seen the two necklaces lying in the toilet bowl into which he was urinating. He then went on to refer to Finding G :

“It is probable - but not beyond reasonable doubt, - that apart from PW1's husband no one used the toilet after the uniformed police officers arrived and that as to Room 2, only the fingerprint officer (in the early stages) and the Appellant (when he was not in the toilet) had been in there during the period the necklaces went missing.”

9. It is trite law that a primary fact has to be proved beyond a reasonable doubt before an inference of guilt can be drawn from it. The magistrate specifically stated that one of the factors and facts from which the inference of guilt could be drawn was set out in Finding G, factors and facts that had not been proved beyond a reasonable doubt. These were factors and facts probably central to the prosecution case. What he found in reality was that it had not been proved beyond a reasonable doubt that after the uniformed branch officers had arrived, the toilet had been used only by Madam Wong’s husband and the appellant, and secondly, that it had not been proved beyond a reasonable doubt that only the fingerprint officer and the appellant were in Room 2 during the period the necklaces went missing.

10. The magistrate was wrong to use Finding G as one upon which he could rely in drawing the inference of guilt. It cannot be said that without this finding a conviction would nevertheless have inevitably followed. The magistrate has made a fundamental error. The appeal must be allowed and the conviction set aside.

11. Having heard counsel on the Crown's application for a retrial it has to be said that the magistrate made several findings of fact upon which he based the inference that he drew. He misdirected himself as to one of those factors. Whether he would have come to the same conclusion if he had not so misdirected himself, I do not know: It is a serious matter and I am of the view it ought to go back for a retrial. I order that there will be a retrial before another magistrate.