THE QUEEN v. CHEUNG YUK-LAN

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Headnote

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Burden of proof --- Not a question of choosing one of two versions.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 889 of 1986

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of shoplifting in a supermarket.

2. The prosecution case depended on the evidence of the Deputy Manager, who was patrolling the supermarket in plain clothes. She saw the appellant take a tube of baby cream from a shelf. Instead of putting it in her trolley she walked on, with the cream still in her hand. She later tore off the price label and put the article in her handbag.

3. The Deputy Manager followed the appellant while she shopped normally. At the cashier's desk she paid for all the articles except the baby cream. When she was challenged, she claimed she had bought it in another supermarket several days earlier.

4. While they were waiting for the police, the appellant took the tube of baby cream from a table in the manager's office, removed the cap and applied some to her face.

5. The appellant gave evidence and denied putting the baby cream in her handbag. She admitted handling a similar tube to examine the price. The tube in her bag had been purchased several days earlier.

6. The magistrate examined the tube of baby cream and concluded that it was brand new. He asked himself why the defendant should be interested in buying a second tube.

7. He was impressed by the Deputy Manager's evidence and concluded that it was a true and accurate account of what happened.

8. Unfortunately he concluded his statement of findings thus:

"In a case of this nature when the court has to choose one version from the other, it is not right to assess the versions independent of the other and then say if the Defendant's version might be true then there's a lurking doubt on the prosecution's case.

 

Having assessed the 2 versions together, I conclude that I should reject that. of the Defendant. On PW1's version the case of theft has been proved beyond all doubts. I so convict the Defendant."

9. This court has stressed more than once that this is just what magistrates should not do. It is the wrong test. For example, in Chan Wing-yuen v. R.⁽¹⁾, McMullin, J. said at 191:

"Although an appellate court must be slow to find the possibility of error in the application of a fundamental principle, this particular principle suffers from the difficulty that in applying it where the issue is purely or principally one of credibility of witnesses the most experienced magistrate or judge may sometimes be insensibly drawn through the necessary task of evaluating the quality of the testimony of each witness (which inevitably involves some degree of comparison between them), to a balancing of two stories. There may then be some danger of a failure to keep in mind that the prosecution case must stand upon its own feet and is not to be accepted merely because the other is rejected."

10. For this reason alone the appeal must be allowed and the conviction quashed.

11. The court is always reluctant to order a retrial in cases such as this. It means prolonging the trauma for the appellant, whose reputation is at stake. There is also the question of expense.

12. Nevertheless the prosecution evidence in this case was so strong that I consider the interests of justice require a retrial and I so order.

(1)    1977 H.K.L.R. 186