R. v. KWONG SHUN SANG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 473 OF 1995

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J U D G M E N T

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1. The Appellant was convicted of theft after a trial. He was fined. He now appealed against conviction.

2. Two officers on plain clothes patrol saw the Appellant at a distance in the early hours of 31.7.94. Their evidence was they thought the Appellant was acting suspiciously. They intercepted him. His identity was checked and he was searched for dangerous drugs. Nothing suspicious was found on him. They then saw the Appellant was carrying a mobile phone and they asked him the ownership of the phone. He said he was a taxi driver and he found it at the back seat of his taxi one night and was using it. One of the officers PW1, declared arrest and cautioned the Appellant. According to PW1, the Appellant said in reply that he picked it up in the taxi. Back at the police station, the same officer cautioned the Appellant again and the Appellant said "Ah Sir, I did not know I committed the offence. I picked it up, give me a chance." Surprisingly, no record was made of these alleged verbal admissions, neither in the officer's note book nor anywhere else. The prosecution case solely relied on these alleged verbal admissions.

3. The Appellant's evidence was that he was stopped by the officers. Because they were in plainclothes, he asked for their warrants. An argument arose as a result and the officers asked if he stole the phone. He replied that he bought it from a friend. Later he was told to admit theft of the phone and if he admitted, he would be fined. The Appellant said he did not make any admission.

4. The witness of the Appellant told the learned magistrate that he sold the phone to the Appellant for $1,800. He could not remember when and where the sale took place except it was in Kwun Tong.

5. The learned magistrate found the two officers were extremely good witnesses and despite their minor discrepancies, he found them reliable. He found the Appellant did not put to the officers his case that he was told to admit and the Appellant was evasive. He did not find either the Appellant or his witness a credible witness and he found they had lied to him. Referring to R v. Lucas, he stated he was aware that lies may not be evidence of guilt. His conclusion was the Appellant found the phone on the back of his taxi and kept it for his own use. As to whether he acted dishonestly, he applied the test in R v. Gosh (1982) QB 1053.

6. Mr. Kwong for the Appellant submitted that the conviction was unsafe and unsatisfactory because there was no record of the admissions alleged to have been made by the Appellant. He submitted that there was no evidence as to the ownership of the portable phone nor proof that effort had been made to locate the owner. In addition Appellant and his witness did give evidence regarding the ownership of the portable phone.

7. Mr. Chapman for the Crown said that this was a curious case. The police officers were looking for drugs but failed to find them on the Appellant. Then they said they came upon this offence of theft. It was also curious that there was no record of either admissions. Mr. Chapman indicated that the Crown did not take a strong view of this case.

8. This was indeed a curious case in that neither of the two police officers made any record anywhere of the vital verbal admissions alleged to have been made by the Appellant at the scene both before and after his arrest. It was even more strange that after the Appellant was taken back to the police station where he was cautioned again, the further and repeated verbal admission alleged to have been made by him was not recorded anywhere. In the normal course of police practice there would have been a record of interview of this. No explanation was there as to this absence of record. No effort was made by the police to find the owner of the portable phone who could have been traced easily through the relevant phone company. The Appellant had denied making any admission whatsoever.

9. Although the learned magistrate accepted the evidence of the two police officers and rejected the evidence of the Appellant and his witness, branding them as liars, the learned magistrate had not considered adequately, especially when the Appellant's case was he made no admission at all, the significance of the absence of a written record of interview contrary to what had always been the case where there was bound to be a record of the interview when an arrested suspect was interviewed at a police station under caution.

10. The learned magistrate in rejecting the evidence of the Appellant and his witness, also relied on his observation of their demeanour in giving evidence. In Lek v. Mathews (1926) 25 Lloyd's List LR 525, Atkin LJ stressed that demeanour was not to be overemphasised as a means of assessing the credibility of witnesses. He said "I fully appreciate that the trial judge has advantages in seeing the witnesses. For myself, after a considerable personal experience of seeing witnesses, I think that those advantages are often exaggerated. I would attach much more importance to the intrinsic value of the evidence, its relation to other facts clearly proved or admitted, than to the demeanour of the witness." In Yuill v. Yuill [1945] All ER 183 Lord Greene M.R. found that in certain cases it was open to an appellate court to reconsider the judgment of the trial judge which was based in whole or in part upon his opinion of the demeanour of witnesses. He said (at p. 188) "It has never been laid down in the House Lords that an appellate court has no power to take this course. Puisne judges would be the last persons to lay claim to infallibility, even in assessing the demeanour of a witness. The most experienced judge may albeit rarely, be deceived by a clever liar or led to form an unfavourable opinion of an honest witness and may express his view that his demeanour was excellent or bad, as the case may be ... I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanour has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanour must necessarily lose its value."

11. On the learned magistrate's finding that the Appellant had not put his case, the record shows that the question "You persuade him or hear your colleague persuade him to admit stolen." was put to PW1 in cross examination by counsel for the Appellant at the trial. The substance of his defence had thus been put although not in more specific terms. The example cited by the learned magistrate of the Appellant's evasive manner was the Appellant, in answering the question put to him about meals "Dinner or late snack?", replied "many friends knew about this." However, after the question was repeated, the Appellant did provided the answer "late meal". In that context the Appellant could not have been regarded as evasive. It would appear that the learned magistrate was not entirely accurate in dealing with the Appellant's evidence and his conclusion on the demeanour of the Appellant was based on evidence which was not entirely correct.

12. In the circumstances, the conviction was unsafe and unsatisfactory. The appeal is allowed and the conviction quashed and the sentence set aside.