HKSAR v. PUN KIT FAI

HCMA1113/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1113 OF 1999

(ON APPEAL FROM NKCC 4123 OF 1999)

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J U D G M E N T

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1. The appellant was charged with one charge of theft which alleged that outside Room 409, Block 8, Shek Kip Mei Estate, Kowloon, he stole one pink hanger, one grey underwear and one black brassiere, the property of Chung Pui Yee. The trial took eight days and at the end of it, the trial magistrate, Mr J.T. Glass, convicted the appellant and fined him $1,000.

2. The Statement of Findings by the magistrate was extremely detailed and had obviously been very carefully considered before it was written up. The Statement of Findings runs to 20 pages.

3. During the trial, the prosecution called four witnesses. The first witness ("PW1") was a taxi driver who had seen the appellant outside his flat at Room 409, Block 8 through his taxi windscreen as he was parking his taxi at the entrance to the carpark of the Shek Kip Mei Estate. He watched the appellant for a short while and then alighted from his taxi, keeping his eye on the appellant. When he first saw the appellant, he had his back to him and he saw the appellant was doing something which looked to him as if the appellant was taking something. Shortly after this he telephoned his home and spoke to his wife. The appellant then turned around and the witness could then see the appellant's face but not to the extent of identification. This was the extent of PW1's evidence which the magistrate accepted because it tied in with the account given in the witness box by the appellant.

4. The other parts of PW1's evidence were rejected by the magistrate as being unreliable and some portions of his evidence were found by the magistrate to have been plainly untrue. The magistrate found that he was not impressed with PW1.

5. PW2 was Madam Chung Pui Yee, who was the owner of the property. She was the girlfriend of the elder brother of PW1. When the police arrived at the scene, they found the appellant to have a bruised eye and a bleeding nose. The appellant gave evidence that those injuries were as a result of an assault upon him by two of the three men who were present at the scene. One of those men was PW1. The magistrate found as a fact that PW1 had participated in an assault upon the appellant and was covering this fact up. PW2 was in a similar position in that the magistrate also rejected her evidence as unreliable and the magistrate found that he was sure that she was aware that the appellant had been beaten up by PW1 and his brother and she was trying to cover this fact up.

6. PW3 was a police officer who drew the sketch of the scene and took some photographs of the scene. His evidence was not challenged and he was found by the magistrate to have been a truthful and reliable witness.

7. PW4 was another police officer who arrived at the scene to make enquiries. His evidence was important in that he testified to an alleged verbal admission made by the appellant at the scene and he also produced a post record of what had allegedly happened at the scene. The magistrate found PW4 to be basically an honest witness but he found that he had difficulty in placing total reliance upon his evidence of what had happened at the scene, as clearly PW4 had some difficulty in his recollections and there were inconsistencies in his evidence which supported the magistrate's finding. The magistrate, therefore, held that he had a doubt on the accuracy of what PW4 told the court had been said by people, including the appellant, at the scene. With regard to PW4's written record made at the scene, the magistrate found that he could not be certain of the accuracy of the contents recorded.

8. The appellant, who was a lecturer at the City University of Hong Kong and who had never been convicted of any criminal offences, gave evidence at the trial. The magistrate found that he preferred the appellant's account of what had happened on the day in question at the scene to the accounts given by the other witnesses. However, he found that there were areas of the appellant's evidence which he rejected as being untrue.

9. The magistrate found that the appellant had gone up to the 4th floor of Block 8, Shek Kip Mei Estate on that evening. He had first walked along the 3rd floor corridor of the block and then had gone up the staircase to the 4th floor. He then went near to Room 409 where he found a pink coat hanger hanging outside on a wire with a lady's brassiere and a pair of lady's underpants thereon. He then hung around the entrance of Room 409 for at least one minute and probably longer. The appellant then, upon hearing the door, turned, taking the hanger and garments and still holding them in his front, he walked in quick paces towards the staircase at the other end of the corridor. He then descended to the 3rd floor by the staircase, listened and looked about, and then descended to the 2nd floor where he put the hanger in a bucket near the rubbish collection door. He then walked along the 2nd floor corridor and put the brassiere and underpants on top of the lid of a red bucket which was outside a flat on the 2nd floor.

10. The magistrate used 12 paragraphs in his Statement of Findings to then consider the appellant's state of mind as he walked from the MTR station into that particular block at Shek Kip Mei Estate and then up the staircase onto the 4th floor. He then rejected the appellant's evidence that he was at that time depressed about his own situation, that he had gone up to the 3rd floor for nostalgic reasons, that he was unaware of what he was doing. He then found that the appellant had made a conscious decision to go up to the 4th floor at a time when he knew he was on private property and it was at night. He then said that he disbelieved the appellant when he said that he just wanted to look at the brassiere and underpants and study the manner of their manufacture. He said he found it impossible to believe, even after making allowances for the appellant's character, that there was anything of such interest in the items on the hanger. He found that clearly the appellant had another motive for looking at the items and he was lying to the court about that. He found that the appellant was lying deliberately, rather than trying to avoid revealing the embarrassing truth, as he had adamantly maintained he was being completely frank and honest with the court in all his evidence. He concluded that he felt sure that the appellant intended to do much more at that point of time and he was being untruthful in his intentions. However, the magistrate found that he could only speculate as to what they were and he was not prepared to do that.

11. The magistrate also found the appellant's assertion in his evidence that he held the hanger because he did not want to touch the items to be an untruth as the magistrate felt sure that someone who wanted to indulge himself and do something he had never done before must want to handle the items.

12. I mention all that simply to make the point that the magistrate preferred the evidence of the appellant to that of the prosecution witnesses as regards what had happened at the scene of the incident. However, he then rejected the parts of the appellant's evidence which I have summarized above, as regards why the appellant had gone to that particular block and to that particular floor in the first place. The net result was the magistrate found that the appellant had gone to that particular spot because he was looking for ladies' underwear and because he wanted to indulge himself by doing something that he had never done before, he might have wanted to either touch, or look at, or handle in some more intimate way these ladies' undergarments that he might find. The magistrate felt sure that the appellant intended to do much more with the garments than merely wanting to study designs, and he found the appellant was being untruthful in his evidence of his intentions, but he was not prepared to speculate as to what the appellant's intentions were. Even if the magistrate had concluded that the appellant wanted to do more with the garments than he was prepared to admit in court, it did not necessarily follow that a conviction for theft must follow. If the appellant simply wanted to admire, or touch, or handle in some intimate way these garments, the prosecution still had to prove that he was acting dishonestly and that he intended to appropriate the garments, with the intention of permanently depriving the owner of them. In my view, this was the crucial issue to be resolved by the trial magistrate. Why the appellant had gone there to the scene in the first place was really a matter which was not completely in issue. The intention to steal could have developed after he removed the garments from the wire.

13. As regards the matters which were in issue, the magistrate found that what the appellant did after hearing the door open was in panic and the magistrate accepted the appellant was concerned, during this period of panic, with what he could do with the items to avoid apprehension. The appellant, after hearing the door open, left the scene in quick paces still holding onto the hanger with the garments attached thereto which he had placed in front of his body so as to prevent people who might come out from the flat from seeing that he was holding the hanger. The magistrate found the appellant was not being truthful when he said he was confused and he did not realise that he had the items with him when he left the scene. The magistrate also rejected the appellant's assertion that he was intending to return the items to Room 409 after he had left the scene.

14. In my view, what the appellant did after moving away from Room 409 was entirely consistent with his, at that time, panicking in fear of being discovered by the tenants of that flat. He went downstairs to the 3rd floor where he stopped for one or two seconds, and he looked to the left and to the right in order to see or hear whether there were people following him. He could not hear anything special and did not discover anyone behind him. He went down to the 2nd floor and, according to him, wanted to use another staircase to go back to the 4th floor to put the items back. He then discovered that the hanger was quite large and he thought that if he walked around carrying the hanger, it would be easier for people to see him doing that and discover his presence, so he put the hanger in a bucket near the refuse room of the 2nd floor, having removed the items of clothing from the hanger. He then moved along the corridor of the 2nd floor and as he was walking along, he heard somebody downstairs shout at him and ask him what he was doing. He became very nervous because at that time he was holding the brassiere and the underwear and he was very embarrassed, so when he saw a rubbish bucket on the 2nd floor, he put them on top of the lid. He then stopped where he was to wait for whoever it was who shouted at him to come so that he might explain to him what had happened. A very short while later, two males approached him and took him to the place near the refuse room where they were joined by PW1. The three males then questioned the appellant and in the course of that, two of them began to assault the appellant.

15. The magistrate then considered the alleged oral admission made at the scene by the appellant which was reduced into a written summary by PW4 in his notebook. The summary was then signed by the appellant at the scene. The magistrate had earlier found the evidence of PW4 as regards what happened at the scene to be unreliable, so he placed no weight on the record, nor did he place any weight on the appellant's signing on the notebook as the appellant had been subjected to a beating and the assailants were present at the scene at the time. The magistrate also accepted from the appellant's evidence that the appellant had initially protested his innocence at the scene.

16. However, the magistrate accepted a post record of the events at the scene which was signed by the appellant in the police station as the piece of evidence which proved the vital matter in issue, namely, was the appellant stealing the items. This post record was produced as Exhibit P10 in the trial below and was an entry made by PW4 in his police notebook after his return to the police station. What the post record said was as follows :

"2215	Postrecording the course of arrest. At 10.15 p.m. on 10.7.1999, inside the Interview Room inside the Report Room of Shek Kip Mei Police Station, I, Police Constable 46839 CHIU Tak-nang, said in Punti dialect to male POON Kit-fai, ... 'POON Kit-fai, now I post-record with you about how I arrested you for theft earlier on today and what you said after you were cautioned ... In the evening of 10.7.1999, I was instructed to go to the 2/Floor, Block 8, Shek Kip Mei Estate near the refuse room to handle an assault case. At 9.37 p.m. the same day, I got to the corridor near the refuse room of the aforesaid place. At that time I saw you male POON Kit-fai in a white 'T'-shirt, a pair of blue jeans and that your nose was bleeding and your left eye bag area swollen and blackened. I thus questioned you the cause of your injury. You then told me that earlier on today, around 9.20 p.m. tonight, when you were stealing a bra and a panties with a hanger outside Room 409, Block 8, Shek Kip Mei Estate, someone inside the room found you and chased after you. You thus made escape. While getting to the 2/Floor corridor near the refuse room of the above address, you were stopped by some persons unknown to you and a struggle started. During the struggle a person unknown to you and you did not recognise him hit and injured your nose and left eye bag. By that time I stopped making further enquiries of you. That is, at 9.45 p.m. on 10.7.1999, I announced to arrest you for the offence of theft and verbally cautioned you, 'You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence.' You then said to me, 'Ah SIR, give me a chance. I don't want to blow up the matter.'
2305	At 11.05 p.m. on 10.7.1999, male POON Kit-fai, ... started reading himself and I, Police Constable 46839, read it out to him in Punti dialect once the above postrecording entry about the course of arrest and the post-recorded cautioned statement. The male POON Kit-fai expressed that the statement postrecorded above is all true and that correction was not required. He wrote down the closing declaration as follows of his own accord and signed as a proof. (') I have read the above statement and I know that I can correct, alter or add anything I wish. All the content of the statement is true. I have made it of my own free will.(') (Sd.) Illegible. (Sd.) PC46839 (illegible). 23.15 HRS. 10.7.99."

17. The magistrate found that he disbelieved the appellant's evidence that he was at a loss at the time and that was why he put his signature to the notebook in the police station. He found that there had been sufficient time lapse for the appellant to get over the initial shock of being caught, and the situation was very different to that at the scene. The time lapse was in fact 25 minutes. The magistrate said the appellant was now sitting mainly alone with the police officer who was not doing anything to intimidate or pressurize him, it was just a simple question and answer interview. In fact, the appellant's evidence was that PW4 in the police station related the cause of the incident to the appellant and asked the appellant 'yes' or 'no'. All the time, PW4 was writing and he just asked the appellant 'yes' or 'no'. The appellant replied either 'yes' or 'no'. After PW4 finished writing, he gave it to the appellant to sign which the appellant did. He did not look at the entry very much, he just signed on it.

18. The appellant's evidence was that at that time his feeling was just like at a loss and although the bleeding of his nose had stopped, there was still blood coming out from the nose. His evidence was that at the scene where he was hit, he had said very little to PW4. His evidence on that was when PW4 arrived, he asked all the people there whether fighting had occurred and when he saw the appellant injured, he asked the appellant why he was injured. The appellant said that he had been hit by several unknown people at the scene. PW4 then asked him why he was hit and the appellant said that on the 4th floor, he had taken away a hanger with a brassiere and underpants on it. At that time, a police detective in plain clothes arrived at the location and the CID officer took the appellant to one side and PW4 then went to the other persons at the scene to make inquiries of them. The appellant said that in fact he was not involved in any struggle and he never told PW4 that there had been a chase because in fact there was no chase. He never told PW4 that he had escaped because in fact he had not escaped from anyone. He never told PW4 that he had stolen the items in question and all he said was he had taken them away.

19. The magistrate had earlier on preferred the evidence of the appellant to that of PW4 as regards what happened at the scene. It is, therefore, quite clear that Exhibit P10 could not have been an accurate record of what was said at the scene and what happened at the scene. The magistrate, having accepted the appellant's evidence of what had happened at the scene, should have found that at the scene the appellant did not say to PW4 that he had stolen the items in question but that he had simply taken them away. The record, where it purportedly mentioned the chase and the escape and the struggle, quite clearly was inaccurate. In my view, these matters must have been incorporated into PW4's post record because these must have been things which he had been told by the prosecution witnesses but not by the appellant. What the appellant purportedly said to PW4 at the scene, namely, "Ah Sir, give me a chance. I don't want to blow up the matter.", cannot, in the circumstances, be regarded as an admission that he had stolen the items in question.

20. Bearing in mind the state that the appellant must still have been in when they returned to the police station, and bearing in mind that the appellant must have wanted to finish at the police station as quickly as possible so that he could leave the police station, in my judgment, the magistrate was in error to have accepted this post entry as an accurate record of what was said at the scene and, therefore, as a reliable source of evidence to show or to prove the ingredients of dishonesty or appropriation or intention to permanently deprive the owner of the goods. When the magistrate found that he was satisfied beyond reasonable doubt that the appellant knew that the record referred to him as "stealing the items in question", that was again in error. Again the magistrate's finding that by signing the notebook entry, the appellant was agreeing to the allegation that he was stealing the items and that that was the truth of what had happened at the scene, is a finding not justified by the evidence. I agree with Mr Plowman SC's submission on these matters.

21. The magistrate said that because he was accepting the post record as an accurate record of what had happened, that ruled out the possibility that the appellant had been outside Room 409, doing something with the underwear such as smelling them which might have supported an inference that the appellant was not intending to dishonestly and permanently appropriate the underwear. He said that that also supported his belief that the appellant had no intention of returning the items to Room 409. In my judgment, the magistrate was in error to have so found.

22. The notebook entry allegedly contained an allegation made by PW4 at the scene that the appellant had stolen the items. The narration by PW4 of what had happened at the scene is clearly inaccurate. The alleged verbal made by the appellant at the scene, namely "Ah Sir, give me a chance. I don't want to blow up the matter", cannot be construed as an admission to a charge of theft.

23. Finally, the magistrate found that his findings led him to the irresistible inference that the appellant had deliberately gone up into the estate to seek out and take for his own use lady's underwear, and it was only on the 4th floor of the estate that he finally found what he was looking for. The magistrate found that he was in the process of taking them for his own use when he was disturbed by the sound of the door of Room 409. He then fled, taking the items with him, and discarded the hanger to get rid of it and later discarded the brassiere and underpants to avoid being found with them on his person. The magistrate found that the evidence also led him to the irresistible inference that he never had the intention of returning the items to Room 409.

24. I accept the appellant's submission and I find that all those findings were wholly inconsistent with the magistrate's earlier finding that when the appellant heard the sound of the door of Room 409 open, he panicked and that the appellant, at that stage, was concerned, during that period of panic, with what he could do with the items to avoid apprehension. That earlier finding by the magistrate is consistent with the appellant after having panicked, then going down to the 2nd floor and eventually disposing of the items as he had testified. If he intended to take the garments for his own use, why did he discard them on his way down from the 4th floor? I cannot see how the finding by the magistrate that the appellant had deliberately gone up to the estate to seek out and take for his own use lady's underwear can be justified by the evidence adduced at the trial.

25. The appeal must therefore be allowed and the conviction is quashed. The fine, if paid, will be returned to the appellant. This judgment is unusually long but its length is out of consideration to the magistrate's very careful and analytical Statement of Findings and to show why I have disagreed with him. I am grateful to both counsel for their assistance on this matter.