HKSAR v. CHAN SIU YUK

HCMA1212/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1212 OF 2005

(ON APPEAL FROM FLCC 2054 OF 2005)

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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, contrary to section 9 of the Theft Ordinance, Cap. 210.  She was fined $3,000 and ordered to pay compensation of $500.  She now appeals her conviction.

The prosecution case

2. PW1 was walking along a pavement and unknowingly dropped a $500 banknote from his shorts pocket.  PW2, an Indonesian domestic worker, witnessed this.  She also saw that when the $500 banknote fell onto the ground, the appellant immediately walked over, picked it up and walked away.  Soon afterwards, PW1 noticed the note missing.  Whilst he was tracing that missing note PW2 indicated to him that the appellant had picked it up.  PW1 immediately approached the appellant and she denied taking his money.  The police was called and arrived later.  Back at the police station, a woman police officer found a $500 note in the appellant's wallet.

The defence case

3. The appellant elected not to give evidence but called a witness who was present there with the appellant waiting for their children.  The defence witness said that she saw the appellant walk away from her and went forward to pick something up.  She could not see what that was.  When the appellant returned she was shown a piece of white paper in her hand.  She never saw the appellant holding any $500 banknote.

Grounds of appeal

4. I shall summarize the grounds as follows :

(1) Inconsistency between the oral reasons and Statement of Findings in that in the former the magistrate was satisfied that the $500 banknote in the appellant's wallet was the very same note that PW1 had dropped, but in the latter the magistrate said she could not be sure they were the same note.

(2) The magistrate, in finding that PW1 and PW2 were honest and reliable witnesses, had failed to demonstrate how she resolved the inconsistencies in their evidence.

(3) The magistrate erred in admitting into evidence previous   consistent statement of PW2 when there was never any allegation of recent fabrication.  She further erred by relying on such inadmissible evidence to bolster the credibility of PW2 and to find that she was an honest and credible witness.  

(4) The magistrate failed to place the spontaneous denial of the appellant in its proper context when evaluating the evidence, and erred in finding that was a lie and relied on that lie to convict the appellant without giving herself the requisite lies direction.

Counsel for the appellant submitted that as a result the conviction was unsafe and unsatisfactory.

Respondent's reply

5. Counsel for the respondent submitted that :

(1) There was no true inconsistency between the oral reasons and the Statement of Findings in relation to the $500 note whether retrieved from the appellant's wallet was the very same note as the one dropped by PW1.  It was further submitted that in any event, whether that was the very same note was neither here nor there.

(2) The alleged “inconsistencies” between PW1 and PW2's evidence were not material discrepancies which required to be resolved and in no way did they affect the credibility of the witnesses.

(3) There was no issue of previous consistent statement : the two previous statements were used as a whole to attack the credibility of PW2, in particular, that she failed to disclose information useful to the defence in her first statement.  This was not a case where the magistrate found PW2 credible because she had given a previous consistent statement.

(4) On the facts accepted by the magistrate, she was entitled to find that the appellant denied taking PW1's money before anything was ever said to her.  She never found the reaction of a denial was a lie, and did not rely on lies of the appellant to convict her.  Rather, she found her denial and the circumstances of such indicative of the fact that she knew what the allegation was before anything was said and she had picked up the money.  Lies direction was thus unnecessary in the circumstances of this case.

My judgment

6. I shall now deal with the 1^st ground.  When the appellant was searched at the police station, it was found that there was a $500 note in her wallet.

7. The magistrate said this in her oral reasons :

“      There was, of course, opportunities for the defendant to put something in her bag as the defence witness was not able to see her all the time.” (Appeal Bundle 42D, oral reasons)

8. Counsel for the appellant submitted that that was an implied finding by the magistrate that the note retrieved was the note that PW1 dropped.  Counsel submitted that this was inconsistent with the magistrate's Statement of Findings in which she said :

“… I cannot be sure that the $500 note found on the defendant was the one and the same note as PW1 had dropped. …” (Appeal Bundle17)

9. Counsel's submission demonstrates the danger of just plugging out one sentence and reading too much into it.  What was said should not be viewed in isolation but should be put in its proper context in order to understand what it meant.  When the magistrate said what was quoted above in her oral reasons she was actually analyzing DW1's evidence : i.e. whether DW1's focus was on the appellant all the time; whether it was possible that the appellant could have put away the note without her noticing.  What was said was never meant to be a finding of fact.  In fact when one reads the exchange between the court and the prosecutor during the stage of final submission, it is clear that the magistrate had doubt as to whether the note retrieved was the very same note that PW1 dropped, whilst making it plain that whether such was the very same note was not relevant or material to the case (Appeal Bundle 24U to 25C).

10. There was no inconsistency in approach by the magistrate between her oral reasons and the Statement of Findings which gave rise to sufficient concern.

11. Ground 1 fails.

12. Ground 2 can be disposed of shortly.  This case did not turn on whether the appellant walked or ran into the shopping mall; whether PW2 shouted or said to PW1 that a lady had taken his $500 note; or whether PW2 was sitting or standing when the appellant walked past her into the shopping mall.  The issue is the credibility of PW2 and the reliability of her observation.

13. O'Connor J said this in R. v. Lam Kam Ming and Anor, CACC607/1979 :

“… The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated.  Significant inconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved.  There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case.  The Magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty.”

14. A magistrate is not required to deal with or resolve each and every inconsistency.  The magistrate would have discharged her duties on demonstrating that she had evaluated the evidence and decided on matters that would enable her to say whether or not the charge against the appellant was proved.  The so-called discrepancies raised by counsel for the appellant were only matters of semantics and not of material significance or would cast any doubt on the credibility of the prosecution witnesses that required to be resolved by the magistrate.

15. I now turn to Ground 3.  It was PW2's evidence at the trial that she saw the appellant pick up the $500 banknote first and then a white paper.  PW2 was cross-examined as to her failure to inform the police in her witness statement about the appellant picking up a piece of white paper.

16. At this juncture, the prosecutor informed the court that in a subsequent statement to the police PW2 did mention about seeing the appellant pick up that white piece of paper.

17. Counsel for the appellant submitted that the second statement, being a previous consistent statement, should not be admitted in the first place.  He relied on the case of R. v. Wong Bing Fai and Another, CACC12/1983where the Court of Appeal said:

“… it is generally inadmissible to re-establish a witness' credibility by proof of a previous consistent statement except when the witness is charged with having fabricated the story.

If a witness has made two previous statements one of which is consistent with his evidence and one of which is inconsistent, then cross-examination as to the inconsistent statement will let in evidence of the consistent statement if and only if the consistent statement antedates the inconsistent statement.  This second principle of course is only applicable if the court finds that there has been an allegation of recent fabrication.”

18. It was therefore submitted by counsel for the appellant that the basis for admission as set out in Wong Bing Fai's case was not made out.  Counsel said this in his written argument, I quote :

“… It might well have been fair to the court prosecutor, indeed to the learned Magistrate herself that the second witness statement should have been raised in evidence.  But in law it certainly seems that the second witness statement was not admissible regarding the white paper issue and that certainly the Magistrate never considered or was aware of the two legal issues involved which have been laid down in R v Wong Bing-fai.”

19. The present situation was similar to the case of Beattie (1989) 89 Cr.App.R. 302.  In that case a complainant of sexual abuse gave two statements to the police, contents of the first one was at variance with her evidence-in chief, but her second statement ‘corrected the inconsistency which emerged from the first'.  The basis for allowing the appeal, being that the second statement should not be shown to the jury, has nothing to do with the present appeal.

20. The Court of Appeal in Beattie commented on the propriety of defence counsel to inform the court of the existence of the second statement :

“… Mr Davies [defence counsel], very properly if we may say so, endeavoured to show, …, that she had been inconsistent in her account of the events.  She denied inconsistency and accordingly the statement was put to her in order to demonstrate that she had indeed told a story in the witness box which differed markedly from the statement she had made to the police on July 16.

What happened then was this.  Mr Davies, again very properly, making it clear that he had no desire to score a false point against the witness, indicated that he conceded that so far as the second statement is concerned, that made on July 19, it corrected any inconsistency which might have emerged (as it did in fact emerge), from the first.  So to that extent the witness, temporarily at any rate, was rehabilitated.” [Emphasis added]

21. Unfortunately, defence counsel did not do so in this case although he was obviously aware of the existence of this second statement.  I make no conjecture of whether he wished to “score a false point against the witness”.  It was entirely fair and proper for the prosecutor in such circumstances to draw that to the magistrate's attention.

22. In Beattie it was said that there was no general further fourth exception apart from the three well known named exceptions for the admission of previous consistent statements.  The Court of Appeal in R. v. Ali [2004] 1 Cr.App.R. 39 recognized a further residual discretion for a judge to permit re-examination to show consistency when there was something either in the nature of the inconsistent statement, or in the use made of it by the cross-examiner, to enable such evidence to be given :

“That said, however, we would emphasise that in Beattie the Court referred to the absence of a general further exception. No doubt the matter was put in that way because we do not consider that in that case the Court intended to detract from the existence of a residual discretion in the judge to permit re-examination to show consistency when there is ‘something either in the nature of the inconsistent statement, or in the use made of it by the cross examiner, to enable such evidence to be given' ...

It is this residual discretion, necessary in the interests of justice, which permits, and indeed requires, close examination of the position in relation to a suggestion of recent fabrication, as well as the need in all cases to ensure that, as a result of a question put in cross-examination, the jury is not positively misled as to the existence of some fact or the terms of an earlier statement.  If, as a result of cross examination, that is the situation which faces the judge, then to the extent that it is necessary, he will be justified in his discretion in permitting questions in re-examination in order to correct the position.” (at p.511) [Emphasis added]

23. The present case is exactly the sort of situation anticipated and envisaged in Ali's case and indeed in the commentary of R. v. Weekes [1988] Crim. L.R. 245 as quoted in Ali's case :

“On occasion, a strict application of the general rule excluding previous consistent statements may generate the appearance of unfairness in that the court is left with an unbalanced view of the overall consistency of the witness.”

24. By following the strictures of the rule of inadmissible previous consistent statements to withhold the second statement from the magistrate, the magistrate would be left with a wholly unbalanced picture of PW2's previous statements and an unbalanced view of her overall consistency.  This is highly undesirable.  Therefore, in cases where a witness has made two statements one inconsistent and one consistent with her evidence in court and the defence only cross-examined her on the inconsistent statement thus failing to put the full picture before the court, hoping to score a false point against the witness, the criminal law is not powerless.  Prosecutors should be vigilant and alert to be able to jump to his or her feet to deal with such a situation.

25. In the present case, the defence case was that PW2 might have mistaken the white paper for a $500 banknote.  In fact what was said in her second statement about the piece of white paper might lend support to the defence case in the following way : that she might genuinely have been mistaken, or she deliberately failed to mention this useful information in the first statement which went to her credibility.  The prosecutor did not leave it until re-examination but fairly chose to inform the court of the existence of this statement during cross-examination of PW2, thus giving defence counsel full opportunity to cross-examine her as to the circumstances under which this statement came about, that is, who initiated the giving of the second statement and whether she provided the information therein or such were suggested by police officers, with a view to elicit from her evidence which could provide ammunition for the defence (Appeal Bundle 68-70).  The magistrate, having the benefit of the full picture, was alive to the allegation of mistake and concealment of beneficial material.  She properly came to findings as such :

“I found PW2 did not deliberately conceal from the police in her first witness statement that she saw the defendant pick up a white piece of paper.  Obviously her original statement was to inform the police that she had seen the defendant pick up the $500 banknote that PW1 had dropped.  She explained that at the time when she gave her statement she was very nervous as she had not been to a police station before.  When the police requested her to go back to give another statement and specifically asked her about the white paper the defendant had picked up she frankly told them that she has seen the defendant pick up a piece of white paper as well as the money.”

26. It is obvious that full use was made of this second statement at the trial with a view to elicit material to advance the defence case but failed.  Now counsel for the appellant said that no heed should be taken of this second statement at all in the first place.  This stance taken by counsel is a classic ‘heads I win and tails you lose' situation which should be discouraged.  Counsel simply cannot “have his cake and eat it”.

27. There is no merit in this ground and this ground fails.

28. I now deal with the last ground.  Mr Boyton for the appellant submitted that the magistrate's finding that the appellant denied taking the money prior to anything was said by PW1 was against the evidence.  It was submitted that according to the evidence of PW1, PW2 was shouting to him, indicating the appellant had taken his money when he approached the appellant.  It was alleged that such should be readily audible to the appellant (paragraph 45 in the written submission).  It was further submitted that had the magistrate found that the appellant heard the accusation and spontaneously reacted with a denial, full weight should be attached to the denial.

29. Counsel for the respondent rightly pointed out that according to the evidence of PW1 and PW2, shortly after the appellant picked up the banknote, she walked into the shopping arcade together with PW1.  Then PW2 saw PW1 tracing something and then there was a conversation between them.  It was afterwards that they went both into the shopping arcade.

30. According to R. v. Chong Kin Cheong, CACC196/1995, the Court of Appeal said :

“As was his right, the applicant chose not to give evidence.  This does not advance the case against him but compelling inferences may remain unanswered and it is not the judge's task when considering the facts put before him to imagine possible defences of which there is no evidence.  By the same token it is not his task – nor that of a jury – to speculate upon the absence of possible evidence.  His duty was to try the case just on the evidence before him.”

31. There was no evidence that the appellant was able to hear the conversation between PW1 and PW2.  The magistrate did not have to imagine possible defence in favour of the appellant when there was no evidence to that effect.  She did not have to consider whether it was possible that the appellant was aware of the accusation before she made the denial.  The magistrate evaluated the evidence and was entitled to find that the outright denial came from the appellant even before PW1 made known to her any allegation of theft of his money.  In any event, this utterance of denial was an exculpatory statement admissible only to show the appellant's initial reaction.

32. Counsel for the appellant complained that the magistrate, by saying that “plainly, the defendant said this because she had picked up the money”, tantamount to a finding that the denial was a lie and used such to find her guilty.  In my view, counsel is misconceived and had read this sentence again out of context.  This sentence should be read in the light of the preceding sentence, and indeed the whole of paragraph 28.  The magistrate found that by the contents of the appellant's denial even before any allegation of theft of money by PW1, it was clear that she knew what PW1 was after, and that she had taken the money.  The magistrate placed no weight on this denial, but never went so far as to find the denial a lie, and certainly did not equate lies with guilt.  A lies direction was not necessary in the circumstances.

33. This ground fails as well.

34. The appeal against conviction is dismissed and I affirm the conviction.