THE QUEEN v. CHEUNG SIU-WOON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1022 OF 1989

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BETWEEN

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J U D G M E N T

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1. The appellant was convicted of the offence of attempted theft of an electric fan contrary to section 9 of the Theft Ordinance, Cap. 210, and section 81(1) of the Interpretation and General Clauses Ordinance, Cap. 1.

2. It was not disputed that at the material time the appellant went to an electrical appliances shop and was attended by a salesman, PW1. Also working in the shop at the time was the proprietor, PW3.

3. It was also not disputed that after testing a television set, the appellant said that it was not satisfactory. At this time, according to the salesman, many other customers came in and he started serving them. Later when he looked around he found that the appellant was not inside the shop. He went out of the shop to look for him and saw him running away with an electric fan some 20 feet away. He chased and caught the appellant. During the struggle the appellant's shirt got torn, the salesman was left holding the part with the pocket. The salesman did not check the contents of the pocket but according to the constable who arrived in answer to the report, he was handed over the fan, a piece of torn clothing and some name cards which PW1 said had been dropped by the person whom he had tried to catch. As a consequence of the name cards, the appellant was arrested by PW2, who also found the other part of the torn shirt in the appellant's room

4. PW3, who was tendered for cross-examination, said that he had heard a quarrel between his salesman and the appellant lasting some five minutes, but did not know what it was about.

5. The appellant maintained that after he had rejected the television, PW1 swore at him for wasting his time and blocked his way out of the shop. Then the salesman started tearing at his shirt. He demanded an apology and compensation whereupon the salesman said that if he wanted compensation the appellant deserved more damage and proceeded to tear his shirt. The appellant said that he was confused and angry at such behaviour and left the shop suddenly, bought a T-shirt and after lunch at a cafe, returned home.

6. Under cross-examination the appellant was questioned about the name cards which he admitted he had in his shirt pocket. He denied knowing they had dropped out of his pocket and said that he realised that this had happened when he saw them at the police station.

7. The learned magistrate gave brief reasons for his verdict at the end of the hearing.  It may be useful to reproduce his note:

"Credibility - defendant and PW1. Defendant said he did not notice the name cards etc. fell until he saw them at the police station - this appears impossible since defendant said -

(1) Shirt was torn at shop.

(2) Defendant went to buy new shirt.

(3) When police came the torn shirt was already on table.

In the circumstances it was likely that defendant was lying.

PW1's evidence was simple. This was corroborated on a few points by PW2. PW3 also stated it was she who suggested that the police be called

Accept PW1's evidence as truthful generally - notwithstanding minor discrepancies,"

8. The same pattern is repeated in his Statement of Findings where, after setting out both versions in a series of short paragraphs, he proceeded to consider the appellant's version on exactly the same pattern. He concluded his consideration of the defence case by saying:

"in the circumstances I have grave doubts that the defendant was being truthful. I thus find that the defendant was making up a story merely trying to avoid the charge that he took and stole the said fan from the shop without the consent of the shop owner or management."

9. He then proceeded on to say that, taking into consideration the evidence of PW1 and PW2 as well as PW3, he was "fully satisfied that the prosecution had proved the guilt of the defendant beyond any doubt."

10. It was submitted for the appellant that the magistrate's approach to the evaluation of the evidence by comparing or balancing the appellant's case against that of the prosecution was an error in law in that he applied a wrong evidential burden.

11. It is manifest that the learned trial magistrate accepted the prosecution case only after he had rejected the appellant's evidence. It is trite to say that the fact that a magistrate disbelieves the evidence for the defence does not necessarily mean that he has to believe the evidence for the prosecution. The position in this case is not dissimilar to that in Lok Chi-wai v. R. (1973) H.K.L.R. 577 where Huggins, J. (as he then was) said at p.579 :

"In the present case it is true that the learned magistrate referred first to the evidence of the appellant and his mother and said that he was not impressed by it. He then referred to the two prosecution witnesses and said that from their demeanour he accepted their evidence as truthful and correct with certain minor exceptions but he did not, as did the magistrate in Leu Leung.v. R. say that he believed the prosecution because he disbelieved the defence. It also appeared to be suggested that the learned magistrate was not entitled to decide the case by reference to the demeanour of the prosecution witnesses. I think it is a fundamental part of the judicial function to resolve any conflict in the material evidence it being always remembered that in a criminal case the conflict is not between the stories told by the witnesses for the prosecution and those told by the witnesses for the defence but between the truth and possible falsehood of the story told by the witnesses for the prosecution. There are usually two matters which enable a judge to resolve the conflict.  One is the inherent likelihood or improbability of the story told by the witnesses for the prosecution and the other is his assessment of the credibility of those witnesses from their demeanour. In the present case the learned magistrate decided that the prosecution witnesses were telling the truth from their demeanour."

12. Here of course there is no indication that the learned magistrate had relied on the demeanour of the prosecution witnesses.

13. So the only other matter was whether the learned magistrate had directed his mind to the danger of a "failure to keep in mind that the prosecution case must stand upon its own feet and is not accepted merely because the other is rejected", per McMullin, J. (as he then was) in Chan Wing-yuen v. R., (1977) H.K.L.R. 186, 191. In his brief reasons for the verdict he said that the salesman was "corroborated on a few points" by the constable. There is no such reference to corroboration in his Statement of Findings. If the finding of the other part of the torn shirt in the appellant's room at the time of his arrest was taken by the learned magistrate as corroboration, then with respect he was wrong as this fact did not implicate the appellant in the act of taking away the fan as alleged. Likewise, the name cards were at the highest of a neutral value. Besides, the fact that the evidence of the constable about what he was told concerning the finding of those cards was in direct conflict with the evidence of the salesman. The other piece of evidence which cast some doubt on the veracity of the salesman was the testimony of the proprietor about the dispute which occurred inside the shop and which went to support the appellant's version. Had the learned magistrate considered these matters and tried to resolve the conflict in the prosecution case, he might have formed a different view of it.

14. I feel in the upshot that the trial magistrate's erroneous application of the standard of proof cannot be cured by his reference at the very end of his Statement of Finding that he was satisfied the prosecution had proved the guilt of the appellant beyond any doubt.

The appeal is allowed and the conviction quashed.