R. v. LAI LAM HING

IN THE HIGH COURT

Mag. App. No

488/93

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J U D G M E N T

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Penlington, J.A. :

1. This is an appeal which came before me on the 29th December 1993 against conviction in respect of a single charge of attempted theft. The appellant was given an absolute discharge following that conviction but pursues this appeal, no doubt due to the possible consequences of a conviction for dishonesty on his career with the Inland Revenue Dept. in which he is an assessor.

2. It was not in any way in dispute before the trial magistrate that the appellant had a clear record with an excellent family background. However before me an application was made by Mr. Gary Alderdice Q.C. leading counsel, who did not appear at the trial, to admit further evidence. This comprised a list showing the substantial donations which the appellant had made to various charities in Hong Kong since 1982. It was submitted that this was relevant to the question of the likelihood of the appellant behaving dishonesty, as was alleged in the charge. The application was not opposed by Miss Mahomed, Senior Crown Counsel, and I allowed the additional evidence to be admitted on the basis that its relevance was not appreciated by the appellant when instructing his legal advisors at trial and that it was relevant to the question of the appellant's intentions.

Background

3. On the 30th January 1993 at 2:15 p.m. the appellant was in a shop operated by the Professional Teachers Union at 128 Java Road, 4th Floor. He was accompanied by his 9 year- old daughter. He approached the check-out counter which was manned by Ms. Chiu Sai-pun. He had two children's books which he wanted to buy and Ms Chiu asked him for his membership card. He did not have one and asked for a form to sign. The appellant was carrying a leather bag and he was asked to open it. It was Ms. Chiu's evidence that he declined to do so and said it was not convenient. He handed over a $100 to pay for the two books but Ms. Chiu called over her supervisor, Ms. Chu Yin-lan, who came over and asked the appellant to open his bag. This he then did and from the bag took out two packets of dried longan, two erasers and two audio cassette tapes. These were worth a total of $76.

4. It was Ms. Chu's evidence that he asked to see the appellant's I.D. card but he was reluctant to produce it. Eventually however he did so. The appellant then said he wished to take his daughter home but would return. He was allowed to do so but when he did return Ms. Chu, on instructions in turn from her supervisor, had telephoned the Police. The appellant was told that and he then left. Ms. Chu later went to the North Point Police where she saw the appellant and later made a statement.

5. The appellant gave evidence, which was not accepted by the magistrate. He said he was an assessor with the Inland Revenue Department and had been there for 24 years. He had no convictions. He went to the shop on the day in question with his daughter for whom he bought two books. She wanted to buy other items but he scolded her as they were not necessary. However apparently he finally agreed to buy the longan, the erasers and the tapes. He agreed that the items were in his handbag when he reached the counter and he eventually took them out. He said however that he could not remember at what stage he put them there. He said he initially declined to open his bag because of the unfriendly attitude of Ms. Chiu. He also denied that he was at first reluctant to produce his I.D. card. Medical evidence was called for the appellant from Dr. Chan Chung-mau, a member of the Royal College of Psychiatry. He had prepared a report on the appellant's mental condition which was admitted and he was also examined and cross-examined. He said the appellant was depressed and was receiving medication in the form of mild transquillizers. This depression began when the appellant's father died as he worried that he had not looked after his father as well as perhaps he should have. His wife was interviewed and said the appellant's condition had become worse lately and he had become very forgetful. He had for instance lost his I.D. card several times. He had difficulty in sleeping and was often unstable. Dr. Chan was fully familiar with the circumstances of the incident on the 30th Jan. and was of the opinion that the appellant may well have forgotten putting the items on his bag.

6. The magistrate found that the two man prosecution witnesses were reliable but there were aspects of their evidence which did cause him some concern. Ms. Chiu in particular was not asked to make a statement until the 3rd April, three months after the incident. She said she was not sure if the bag was zipped up or not and she agreed that other aspects of her evidence did not tally with the statement she had made. She had for instance, not said anything in her statement about the appellant being reluctant to produce his I.D. card. She agreed that she had discussed her evidence with Ms Chu "a little bit". Ms. Chu on the other hand said she did not discuss the matter with Ms. Chiu at all.

Grounds of Appeal

7. It is the main ground of appeal that as the sole question was the appellants dishonest intentions and there were some aspects of the prosecutions case which were not entirely satisfactory, the magistrate should have been seen to fully consider the appellant's totally clear record and excellent character before coming to his conclusion. That record is now reinforced by the evidence submitted here as to his charitable donations.

8. At the close of the evidence and having heard submission by counsel, the magistrate, who clearly was most concerned about the case and the consequences to the appellant of a conviction, said this:

" I have given this matter my most anxious consideration. I have reviewed all of the evidence and considered the defendant's evidence

As a result of the same I have reached the conclusion that the Crown has discharged the heavy burden that falls on it."

9. It is now complained that the magistrate did not say he had also considered the appellant's clear record in coming to that conclusion in accordance with the principles set out in R v Berrada [1989] 91 Crim. App. R. 131. which have been approved in several recent decisions in Hong Kong, such as R v Lau Kai sing Mag. App. 746 of 1993, R v Chan Wu Nam Crim. App. 274 of 1992 and R v Lai Hon Man Crim. App. 421 of 1992. There can be no doubt from these authorities that a judge directing a jury should tell them that, if the defendant is a man of good character, that is a factor to be considered from two aspects. One is as to his credibility, both in relation to any pre-trial statement he has made and as to any evidence he has given. The second is as to the likelihood that he was such a person as would have committed the offence. Here both aspects should have been considered and that is not apparent from the record, either the remarks made at the trial or in the subsequent written decisions for verdict.

10. There is some apparent conflict however in Hong Kong decisions as to what is required from a professional judge or magistrate sitting alone, who is both judge and jury, to show that he has considered this aspect. These were helpfully reviewed by Ryan J in R v Lau Kai sing. He cited dicta of Mortimer J. in R v Chan Wu Nam who said that, as the defendant's credibility and honesty there were the vital matters to be decided on, an indication in the judgment that the defendant's good character had been considered was required. Ryan J. also considered R v Yu Pui Lai Crim. App. 347 of 1992 where Bewley J. said:

"we are satisfied that a professional judge sitting without a jury is not required to do so (namely to give himself a direction as to good character)."

Decision

11. In my view, as was made clear by Mortimer J. in Chan Wu Nam a judge or magistrate sitting alone does not have to be seen to give himself a Berrade direction in each case but should do so where the central issue is the defendants integrity and credibility and I do not consider that Yu Pui Lai is contrary to that view. (Chan Wu Nam was apparently not cited to the court there).

12. Here the appellant is of imprecable character and there is further evidence which was not before the magistrate that he is a person who would be very unlikely to commit the alleged offence. Having said that it is a matter of common knowledge that shop-lifting is sometimes committed not only by persons of bad character or by persons who have no money to pay for goods but by those who do not seem to have any possible motive. Here however there was evidence that the appellant had mental problems, was depressed and forgetful. He was with his young daughter who was being difficult. Some aspects of the prosecutions evidence was not entirely satisfactory. The magistrate clearly was fully aware of the appellant's good character and indeed asked prosecuting counsel after close of the evidence to take instruction to see if a way short of entering a conviction could be found. However this is a case where the evidence was that the magistrate should have been seen to have considered both aspects set out in Berrade and has not done so. For those reasons I allowed the appeal and quashed the conviction.