HKSAR v. WOO YUK FUN

HCMA410/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.410 OF 1999

(On Appeal from TWCC202 OF 1999)

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J U D G M E N T

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1. The Appellant was convicted of the offence of theft of cash of $10,331.70 belonging to her then employer, the Tung Kit Company Limited. She was sentenced to six months' imprisonment by the Magistrate Mr Lambert Lee, but today she has abandoned her appeal against sentence.

2. In relation to her appeal against conviction, Mrs Remedios on her behalf, has advanced a number of grounds to basically support her main contention that the Magistrate should not have accepted the evidence of the two prosecution witnesses and should not have disbelieved the Appellant because the bases upon which he accepted and rejected the respective testimonies were erroneous.

3. One of the matters that it was said he was in error about was the fact that in relation to two cheques : No.260628 and No.260629, PW1 did not specifically identify them as cheques written by her. She had said in her evidence that she had issued three cheques and she identified one of the three cheques, but did not identify these two cheques that I have just mentioned. Mrs Remedios submits that the Magistrate should not have looked at the handwriting on the cheques stubs of these two cheques and the other cheques to conclude that inasmuch as the other cheques, which were in one style of writing were written by the Appellant, these two cheques which are in a different style of handwriting must have been written by PW1.

4. If the Magistrate had purported to be a handwriting expert, when clearly he is not, and had purported to say, going into the niceties of the style of writing, who the author of a particular writing must have been, then clearly he would be wrong to do that. But all he did was to compare the general writing on one lot of cheques with the general writing on another lot of cheques, and he was simply looking at the general appearance of the writing and the characteristics of certain words or certain figures. In my view, the Magistrate was entitled to do that.

5. A tribunal of facts does not have the function to try and uncover the truth, but at the same time a tribunal of facts must not sit there as if he were blind and therefore dumb.

6. The other basis that Mrs Remedios says flawed the Magistrate's assessment of the evidence was that he had said that PW1 and PW2 corroborated each other. That clearly was wrong because quite clearly the two witnesses could not have corroborated each other because they addressed entirely different issues.

7. The crux of the whole case was when the Appellant cashed a particular cheque whether she had been instructed by PW2 to do that, or whether she had done it of her own volition. PW2 denied that he had ever authorised her to cash that cheque. The Magistrate accepted PW1 and PW2's evidence and rejected that of the Appellant. As I have pointed out to Counsel when she was addressing me, clearly when a tribunal of facts accepts the testimony of a particular witness, it is for reasons which must be more than the reasons stated by him in either his Reasons for Verdict or Statement of Findings.

8. It is the general feel that we all have about the testimony of witnesses, it takes into account the plausibility or implausibility of that witness' testimony and takes into account that witness' demeanor when he or she is giving evidence. It is after these general matters are taken into account that one descends into details to see whether the details have the effect of enhancing or destroying that witness' credibility.

9. I do not have the benefit of hearing or seeing PW1 and PW2 give their evidence, nor do I have the benefit of seeing and hearing the Appellant when she gave evidence. I am not in a position to say that the Magistrate was wrong when he accepted the two prosecution witnesses' evidence and rejected that of the Appellant. As has been said many times over the years, an appellate court would be very slow to reverse a finding of fact by a trial tribunal. An appellate tribunal should only interfere when clearly there was insufficient evidence to support the conviction, or if there should be a lurking doubt in the appeal court's mind as regards the correctness of the conviction.

10. Mrs Remedios has done all that she possibly can for this Appellant, but in the end I fear that the appeal must be dismissed.