HKSAR v. SHRIVASTAVA CHHAYA KUMARI

HCMA1194/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1194 OF 2002

(ON APPEAL FROM WSCC 1126 OF 2002)

---------------------

---------------------

------------------------

J U D G M E N T

------------------------

1. The appellant in this case faced eight charges of theft and, after a trial of some seven days, she was convicted and sentenced to a total of 12 months' imprisonment. She now appeals against her conviction.

2. Each count alleged the theft of a chose in action, being quantities of shares of different listed companies owed by the Hong Kong Securities Clearing Company Limited ("HKSCC") to T.W. Sabnani Securities Limited.

3. Mr Sabnani was the only trading director of the company and he died in February 2001. The appellant had been employed as his domestic helper for a number of years. The company had, apart from its clients' account, bought and sold shares on its own account. Some of those shares were deposited with HKSCC when bought and in those cases no share certificates were issued. Share certificates could later be issued on the broker's instructions.

4. Following Mr Sabnani's death, the company appointed a new trading director in April 2001. By August 2001, he had discovered some shares were missing from the company's own account. Enquires revealed that the shares detailed in the eight charges had been transferred into the joint names of the appellant and Mr Sandhu Sukhwinder Singh and, subsequently, sold. The proceeds of sale were deposited into their joint account with Liu Chong Hing Bank. The police were called.

5. Counsel for the appellant raises four grounds of appeal. The first contends that the learned magistrate failed to direct herself properly in the evaluation of the evidence of certain witnesses. The second maintains that the prosecution evidence revealed "fundamentally fatal discrepancies and inconsistencies" which the magistrate failed to evaluate and that she thereby "erred in holding the said witnesses to be honest, truthful and credible". The third ground of appeal alleges that the learned magistrate questioned the said prosecution witness and "erroneously disallowed further cross-examination on matters arising from it". The fourth ground relates to defence suggestions in the trial that prosecution witnesses had breached employment law and did not make proper disclosure to the Inland Revenue. The magistrate was wrong, says counsel, to dismiss such allegations as irrelevant.

6. The third and fourth grounds can be dealt with shortly and I will take them first.

7. The third ground arises from questions asked of the 2nd prosecution witness by the magistrate at the end of re-examination. Defence counsel had completed her cross-examination of the witness and the prosecution had finished re-examination. The magistrate simply wished to clarify an answer given in cross-examination as she should do when the evidence is not clear to her. Her questions concerned one area only and nothing new was added. She declined to allow defence counsel to embark on a further bout of cross-examination. By this time the transcript had hit page 458. The magistrate was quite right to impose a measure of control on the proceedings. This ground fails.

8. The fourth ground of appeal dwells on speculation by the defence. This was dealt with by the magistrate firmly in the trial. She said the issues were irrelevant and she was right. This ground fails.

9. The first two grounds have taken up most of counsel's time and they cover much of the same ground. Counsel prepared and submitted before the appeal a document entitled "Appellant's Skeleton Submission". Far from being a succinct document identifying and summarizing the points at issue, the skeleton runs to 193 paragraphs and is the result of a painstaking trawl through the evidence.

10. Before moving on to the consequences of counsel's researches, I must comment on one aspect of this appeal which has caused me some concern.

11. It is clear that at the trial counsel took a different view of the witnesses than did the magistrate. This often happens. The magistrate hearing the evidence for the first time is dispassionate and sits above the arena. Counsel on the other hand may well have worked hard on the defence and have formed his or her own view of the evidence. The danger, always to be guarded against, is that counsel may, in such circumstances, lose a measure of his or her objectivity. That this has happened here is unfortunately all too readily apparent. I will give a few examples, if I may, from the defence skeleton :

"12. ... The learned judge 'nit-picked' appellant's evidence and rejected it for frivolous reasons.

...

125. ... The magistrate did not even think about it.

...

158. The learned magistrate ignored all this evidence as if she had never heard it.

...

176. ... she used frivolous and flimsy reasons ..."

Such comments are, it seems to me, as much disrespectful as they are misplaced and do counsel's own cause no favours.

12. To return to the merits of this appeal, what counsel's revisiting of the evidence has done is to produce a number of areas which counsel said are discrepancies in the evidence and she then proceeds to attack the magistrate for not dealing with them.

13. The magistrate does not have to deal with every discrepancy thrown up by the evidence. In R. v. Lau Ching, HCMA No. 995 of 1993, Keith J referred to this when he said at page 3 :

" Mr. Fu for the Appellant contends that there were a number of features in the evidence which the magistrate simply failed to consider, ... That submission is based on the fact that the magistrate did not refer to those features of the evidence in his Statement Findings. However, a magistrate is not obliged to refer to the whole of the evidence in his Statement of Findings, and the fact that the magistrate did not refer to a part of the evidence does not mean that the magistrate did not consider it."

Further, on the same page the judge said :

" Finally, Mr. Fu contended that the magistrate failed to resolve conflicts of evidence between PW1 and PW3 as to what the Appellant was wearing and whether she said that she had any money on her. However, a magistrate is not required to resolve every single conflict in the evidence so long as he identifies the salient points in the evidence which he accepts. As O'Connor J. said in Chong Kam Sau (MA 859/85), it is only the significant inconsistencies and conflicts which have to be dealt with by the magistrate in his Statement of Findings in such manner as to indicate how those matters are resolved."

14. Much of what counsel relates in her written submissions and has referred me to today are not matters which one frankly would expect a magistrate to deal with in a Statement of Findings, either because they are not of sufficient significance or relevance or because they are matters which one knows a professional magistrate will have considered without his or her saying so.

15. Significant inconsistencies, however, should be highlighted and an indication given, however briefly, how they were dealt with. This much is clear from the authorities.

16. From the wealth of details amassed by defence counsel, one area emerges which does cause me some concern. There are differences between the evidence of PW2, who was the principal witness in the trial, on the one hand and PW3 and PW4, also important witnesses, on the other hand. Some of these differences are undoubtedly important, for example, those concerning PW2's own role in running the company and also those concerning the appellant's role in the company.

17. The problem I have today in hearing this appeal is that the learned magistrate does not, so far as I can tell, identify these inconsistencies or demonstrate how she has dealt with them and they do appear to me to be areas which should have been dealt with.

18. I have great sympathy for the magistrate in the case. The trial lasted some seven days and it is immediate apparent from the transcript that defence counsel and PW2 suffered a clash of personalities. The magistrate did her best to control that situation but she was also inundated with detail, much of it unnecessary. She has indeed produced a lengthy Statement of Findings but this vital area appears to have slipped past undetected. The conviction must be set aside.