THE QUEEN v. CHAN HANG-LEE

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 146 OF 1989

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BETWEEN

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J U D G M E N T

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1. This appeal was listed before Duffy, J. in March this year. Mr A. Bruce for the Crown asked for the appeal to be adjourned to enable the appellant to be legally represented. The appeal was adjourned. On the appeal the appellant was still unrepresented.

2. The appellant was convicted of stealing a magazine from a Seven-Eleven store. He was caught by two employees. He then offered to pay for the magazine. The appellant testified that he went to the store intending to buy cigarettes. He picked up a magazine and tucked it under his arm. He went to the cashier counter and took out his wallet intending to pay. A man bumped into him. He then found the pen which had been clipped to his shirt was missing. The man ran out of the store - the appellant gave chase.

3. The learned magistrate commenced his Statement of Findings by stating that the appellant did not tell the store's two employees or the police that he suspected a man had stolen his pen. He said :

" I do not accept that the appellant did not have the opportunity of telling those at the scene about the man whom he suspected of having stolen his pen. I would have thought and expected that the immediate reaction of a person wrongly accused of stealing would have protested his innocence. This he did not do."

4. In The Queen and NG Yuk-ming (1988) HKLR 134 the Court of Appeal held that the trial judge had erred in law in considering tha applicant's failure to mention an alibi at the first available instance.

"    We are of the view that being both judge of fact and judge of law, the trial judge's comments here were wrong in law and his disbelief was based first on an error in law and then on an error in fact and law, he having drawn an adverse inference which he was not entitled to draw and further being factually in error on the issue of inconsistencies. In the light of that, this conviction cannot stand. This misdirection was a vital one. "

5. In The Queen and CHO Chak-bor & others, (1983) HKLR 174, the Court of Appeal held that a comment by the judge on the failure of the accused to give the police the explanation which he gave at the trial went beyond what he was entitled to say. It held there could be no doubt that the directions invited the jury to form an adverse opinion of the three defendants. The court could not say that the misdirection could not have had a substantial effect upon the verdict.

6. Counsel for the Crown did not oppose the appeal.

7. The learned magistrate adopted a wrong approach in reaching his decision. The appeal is allowed, the conviction quashed and the sentence set aside.