R. v. AU KWONG TAT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1527 of 1996

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J U D G M E N T

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1. The appellant was convicted of one charge of theft. The facts were somewhat unusual. On 9th October 1996, the appellant attended Tang Shiu Kin Hospital Accident and Emergency Department to see a doctor. He saw the doctor who examined him, gave him an injection for what appeared to be ailing the appellant and was requested by the appellant to provide a sick leave certificate. The doctor was apparently unwilling to do so and an argument took place between the appellant and the doctor. Tempers, it would seem, became a little heated. In the course of the argument, the appellant, as is acknowledged by him, took a book of sick leave certificates which were in the vicinity and put it on the desk, in front of the doctor and asked him to write a leave certificate. The doctor refused to do so. The appellant then tore a leaf from the book of sick leave notes (which quite obviously was one where the leaves of the book were designed to be removed to be used as certificates) and in the chief, the doctor said :

"... threw the sick book at my direction and ran.

I shouted at Defendant.

Nurse chased.

Defendant then threw the sick note on the ground which he tore out and ran.

Defendant was caught by a nurse."

He identified the sick leave note that had been torn from the book and the book itself.

2. He was cross-examined. In cross-examination he was referred to the statement which he gave to the police and asked this question :

"Q. Your statement page 4th line from bottom said he threw the note on your desk.

A. Yes.

- I disagree I lied.

- I disagree you gave me back the note.

- I believe he threw the note on my desk and it dropped on the floor."

It is apparent from the cross-examination that the doctor was accepting that the note was thrown by the appellant onto his desk which was inconsistent with it having been thrown to the ground after the appellant had run away.

3. The learned magistrate in considering the evidence found the prosecution witness to be a credible witness and found by implication that the appellant took a blank sick leave note and ran away but was caught by a male nurse. He did not seek to deal with the concession by PW1 that the note had in fact been thrown onto his desk which would indicate that the appellant had either not started to run, or if he had, had run virtually no distance.

4. The learned magistrate further did not consider whether or not there had been a dishonest intent in the taking. It is apparent from the exhibit which is not signed by a doctor, nor is it chopped, that it has no value as a sick leave certificate. There is no suggestion in any of the evidence of an intention on the part of the appellant to forge either a doctor signature or a hospital chop to the sick leave certificate.

5. On the face of the evidence, it is equally consistent that a dispute took place between the appellant and the doctor. The appellant took from a sick leave certificate book a form of a sick leave certificate which he attempted to have the doctor sign, that when the doctor would not, he threw it on the desk where it fell to the floor and he then left. This was not considered by the trial magistrate nor did he appear to direct his mind to the issue of dishonesty .

6. In all the circumstances, I must find there is a lurking doubt in this conviction and the appeal against conviction is allowed and the sentence is set aside.