HKSAR v. CHAU KING YIN

HCMA 518/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 518 OF 2010

(ON APPEAL FROM TWCC 872/2010)

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J U D G M E N T

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1.  The appellant was convicted by Mr. John Glass, after trial, of a single charge of theft, the allegation being that he had stolen $100 from a cash box of his then employer. He was represented by counsel. He was sentenced to pay a fine of $5000. He appeals the conviction.

2.  The prosecution case was that when closing up a shop operated by his employer he had taken $100 from the box without authority and that, the following day, he had admitted having done so to fellow employees. Three prosecution witnesses were called who testified to various events including the fact of the appellant's dismissal from employment: the second and third witnesses testified in some detail about a note left in the cashbox and about the appellant’s admissions to them on the morning following the theft.

3.  The appellant gave evidence in his own defence. It was his case that he had not taken, let alone stolen, any money; that the prosecution witnesses were being dishonest; and, moreover, that a note concerning his appropriation of the money was a fabrication designed to falsely accuse him.

4.  The magistrate correctly recognised that the fundamental issue was one of the credibility of the witnesses. In the event, he found the prosecution witnesses to be credible and reliable but rejected the testimony of the appellant.

5.  In his statement of findings he indicated that he had "looked for material inconsistencies in the prosecution evidence" and then set about detailing, at length, what he felt had found. He expressed himself as being unable to resolve two of those inconsistencies upon which the appellant alights as the basis for submitting that the magistrate erred in dealing with them or in failing to give them sufficient consideration, thereby rendering the conviction unsafe and unsatisfactory. This forms the first two grounds of appeal.

6.  The first inconsistency relates to the evidence concerning the note which was found in the cashbox the morning after the theft. PW1 gave evidence that he "thought" that an entry on that note, which bore the legend "Jacky took $100",  Jacky being the name of the appellant, had been written by the appellant himself. However, it was the evidence of both of PW2 and PW3, to whom the appellant had made admissions, that this was not so and that the endorsement had been written by the third witness.

7.  The magistrate said, somewhat gnomically:

Whilst I could not resolve the differences in the evidence, except to the extent that I believed that time had blurred memories of the paper note and who had made it and under what circumstances, I found in conclusion that this inconsistency did not cause me to disbelieve the rest of the prosecution evidence as honest and reliable.

8.  With respect, it seems to me that the "inconsistency" was readily reconcilable. In essence the magistrate said that someone's memory was at fault due to the lapse of time, in other words that the witnesses were not being mendacious. It is plain that PW1’s evidence was incorrect. The important point, however, is that the magistrate was aware of the "inconsistency" but felt himself still able to make the positive finding that it did not affect credibility overall.

9.  The second "inconsistency" related to events surrounding the counting of money in the money box on the morning following the theft. The evidence of PW2 and PW3 differed as to detail. The magistrate expressed himself in very similar terms once more, also saying that "I believed again that time had blurred memories". Once again, the magistrate was able to find that the differences in the details did not affect overall credibility.

10.  Whilst there are differences in the detail, as Ms. Eva Chan, who appeared for the respondent, correctly pointed out, the witnesses were consistent in the really material and important evidence that, subsequent to the counting of the money, the appellant had made clear and unequivocal admissions to each of them that he had taken the money.

11.  It is important to bear in mind that the magistrate was, and demonstrated himself to be, fully alive to the fact that these allegations were interwoven with the appellant's employment termination and that, notwithstanding the evidence of PW1 that the reason for that termination was poor performance on the part of the appellant, PW1 had written a very positive character reference for him. PW1 explained that this was because he did not wish to cause the appellant any long-term difficulties. The magistrate accepted that but, very carefully, regarded this as an indicator that PW1 was prepared to stray from the path of truthfulness.

12.  The third and fourth grounds of appeal consisted of the suggestion that because the magistrate had not resolved the issue of who it was who had made the endorsement on the note, it must be that it was possible that the appellant himself had made it. The argument then proceeded that if it been made by the appellant that would be inconsistent with a dishonest intent to steal but would evidence a belief on the part of the appellant that there would be no objection to him appropriating the money. Similarly, that by admitting to PW2 and PW3 that he had taken the money, this should have raised a doubt as to whether he had a dishonest intent.

13.  The difficulty with this proposition is that that was not the appellant’s evidence. His evidence was simply that he had not taken the money. To suggest, therefore, that the appellant might have appropriated the money but without any dishonest intent is directly contradictory of the appellant's own testimony. The somewhat novel proposition was made that, even so, it was a matter that the magistrate should have considered. With respect, that is simply not so. It is well settled that whilst a court should deal with a defence which obviously emerges from the evidence even if not relied upon by an accused person, it is equally well settled that it is not the duty of the court to speculate or to formulate defences for which there is no evidential basis whatsoever - or, in the present case, which actually run counter to the accused’s own testimony.

14.  There was then a criticism, in the fifth ground of appeal, that the magistrate had failed to give reasons for rejecting the possibility that the appellant had believed there would be no objection to him taking the money. The magistrate needed to have gone no further than he did, the observation being gratuitous in the context of the Statement of Findings.

15.  The sixth ground of appeal complained that the magistrate had rejected the appellant’s evidence on a wrong basis. No more need be said other than that this ground is based upon a misapprehension perhaps created by the Magistrate’s phraseology.

16.  The final ground suggests that the magistrate incorrectly stated the law when he said that if he disbelieved a witness on a material issue he should then exercise caution and be slow to accept the rest of that witness's evidence on any other material issue. It is submitted on behalf of the appellant that once the magistrate had disbelieved a witness on a material issue he was obliged to reject his evidence on all other material issues. It suffices to say that there is no substance in this submission and that the magistrate was correct in his approach.

17.  There are, certainly, passages in the Statement of Findings which might have been expressed with greater clarity but in my judgment the magistrate has clearly demonstrated himself to be aware of the real nature of the issues which he needed to decide in order to arrive at his decision. He was aware that the appellant is a comparatively young man, well-educated and with no criminal convictions. He properly took these factors into account as he was required. He recognised that the underlying consideration which he had to resolve was upon whose evidence he was able to rely.

18.  This appeal is a re-hearing on the material before the magistrate. An appellate court does not have the advantage of having seen and heard the witnesses testify and is at a disadvantage when the question of credibility is a crucial issue, such as in this matter. Appellate courts are, and should continue to be, very slow to interfere with findings of credibility. Nothing persuades me that the magistrate erred in his assessment of the relative strengths and weaknesses of the witnesses, in his acceptance of the evidence of the prosecution witnesses and his rejection of the appellant's testimony. In particular, the acceptance of the testimony of PW2 and PW3 as to the admissions made by the appellant after the discovery of the theft are compelling.

19.  Based on his assessment of credibility the magistrate was justified in making the findings that he did. I would arrive at the same conclusion and convict the appellant. Consequently, the appeal against conviction is dismissed.