THE QUEEN v. LUI FUN LAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1177 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 19th July 1990, the appellant was convicted of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, Laws of Hong Kong. The particulars of offence alleged that she committed the offence on the 21st March 1990 inside Wellcome Supermarket at 17A, Bulkeley Street, ground floor, Kowloon, and that she stole one bottle of lasting care hand balsam, valued at $7.90, the property of the supermarket.

2. The trial took place on the 12th July and the magistrate reserved his judgment until the 19th.

3. The grounds of appeal were :

4. The crux of the defence case at the trial was that it was the appellant's child who was naughty and who had placed the item in question in the appellant's handbag. In rejecting that defence, the learned magistrate said in his reserved judgment :-

"I do not accept the child was naughty, he was suffering from a high temperature. Children in such condition are subdued and inactive. Further if the child had been so naughty I reject the Defendant would give exhibit P2 to calm him down. P2 to a child of two and a half would be of no interest whatsoever, it would be disregarded straight away. A sweet, chocolate, drink, ice cream or toy would have prevented him being so naughty not a tube of handcare balsam.

 

Accepting the Defendant may have been under some stress due to illness of her husband and the child and in a hurry to go home, I do not accept that if the child had put P2 in her handbag the Defendant would not have known about it. As the Defendant said in cross-examination P2 would have needed force to get it in, what was already a very crowded bag. The child was only two and a half, control of hands at that age is not good but very much clumsy."

 

5. Mr Bernard Chung for the appellant complains that that passage contained three assumptions which the magistrate was not entitled to make in the absence of evidence. There was no evidence as to how a child would act, let alone this particular child. It was a crucial part of the defence case, he says.

6. In his Statement of Findings made on the 13th August 1990, the learned magistrate realised that he had gone too far. He said :-

"Upon reading those reasons I concede that I was wrong to draw the conclusions I did as to the conduct of children set out in paragraphs 3 and 4 of page 28 of the notes of proceedings. Without those conclusions, I still reject the Defendant's evidence. PW1 was cross-examined at some length about the role played by the child, she was not discredited in any way during that cross-examination. I accept PW1's evidence that the child was not naughty, the child was not given P2, and the child did not put P2 into Pl. Further, I considered the Defendant's evidence very carefully and her demeanour whilst giving that evidence. I found the Defendant to be an untruthful witness. I have no hesitation in rejecting the Defendant's evidence."

 

7. With the greatest respect to the learned magistrate, this appears to be to be an attempt to have a second bite at the cherry. The use of the present tense in this passage appears to indicate that the magistrate is reviewing his own decision. However, the period for review had long passed. Although the magistrate had, when giving his reserved judgment, indicated that he believed the prosecution witness upon whom the prosecution case depended, the evidence of any witness must be weighed in relation to the evidence as a whole. The magistrate was weighing in the balance against the appellant matters which should not have been put into the scales.

8. I therefore hold that the conviction was unsafe and unsatisfactory.

9. The Crown does not seek a retrial and in view of the minor nature of the charge, I make no such order.