R. v. TSE KA MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 479 OF 1994

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J U D G M E N T

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1. This is one of those classic cases where the Magistrate had to make up his mind whether to believe PW1 or the Defendant. Unfortunately for the Defendant, he accepted the evidence of PW1. The Defendant did not give evidence and Mr. Haldane has made certain criticisms of the Magistrate's findings and in my judgment, there is nothing in any of these criticisms. This was a man who was seen to take some goods and was seen to put them into his socks. This was a suspicious activity in any circumstances. There is nothing in any of the grounds of appeal that Mr. Haldane has put forward.

2. The only one that I think I must deal with at all is the question of the lack of any Vye direction. I am told that the Defendant is a man of good character in the sense that he has not been convicted of any previous offences although there is some record that he was bound over on the offering of no evidence in relation to another matter. This fact was not placed before the Magistrate and the Defendant did not give evidence. It seems to me impossible to criticise the Magistrate or the conduct of the hearing when the defence did not attempt to put before the Magistrate the fact that the Defendant was a man of previous good character and it does not seem to me that one can criticise these procedures nor does it create it my mind any lurking doubt because this matter was not dealt with in the way suggested. As I have already said, it was a matter of whether the Magistrate accepted one version or another and I do not think that I have to get involved in the issue as to whether or not if good character had been placed before the Magistrate, there was any obligation at all to mention that fact, i.e., whether the Magistrate should give himself a Vve or a Berrada direction. It seems to me that this was a matter the defence should have placed before the Magistrate either by getting the prosecution to agree to this fact or by adjourning the matter or standing the matter down for a little while until the prosecutor was in a position to confirm the situation one way or the other.

3. I have had placed before me a letter dated 9th May from the prosecutor explaining the enquiries that she had made about the previous record of the Defendant and she confirms that this did not come to her until after the defence had closed their case. By the time the Magistrate came to sentence the Defendant, he had been told about the Defendant's lack of any previous convictions. I really cannot see how this can be a ground of appeal on the facts of this case and in circumstances, this appeal is dismissed.