HKSAR v. LUNG CHI CHUEN

HCMA 1183/2003

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H E A D N O T E

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1. Where there is a failure on the part of the prosecution to call a material witness, it is open to a trial judge or magistrate to invite the prosecution to call such a witness. But the prosecution is not obliged to accept such an invitation (see Abe1 Muhammed el Dabbah v Attorney General (Palestine) [1944] AC156 and R v Mok Wei-tak [1986] HKLR 1054). And it is somewhat invidious for a trial judge or magistrate to be in a position of issuing invitations that can be declined rather than making orders or directions that must be complied with.

2. A trial judge or a magistrate can himself call the witness. But it is not wholly satisfactory for a trial judge or magistrate to get involved in that way.

3. In relation to both of these alternative courses, namely invitation or calling, there is the additional problem that the materiality of the evidence in question may not become fully apparent to a trial judge or magistrate until a later stage, such as that of final speeches, even though it was or should have been fully apparent to prosecuting counsel earlier.

4. Where the prosecution declines a trial judge's invitation to call a witness, it is open to the trial judge to comment strongly on that in his summing-up: see Apostilides v R (1984) 53ALR 445, 455. But the prosecution's failure to call a witness does not of itself give rise to an inference that the witness's evidence would have been unfavourable to the prosecution: see R v Wheeler [1967] 1 WLR 1531 and R v So Ying-chi [1968] HKLR 429. So it is unclear what strong comment or any comment a trial judge can helpfully make to the jury, or what direction a magistrate can meaningfully give himself, where such an invitation is declined by the prosecution.

5. The position on appeal, as the High Court of Australia said in Richardson v R (1974) 131 CLR 116, is that (taking it from the headnote):

"A failure on the part of a Crown prosecutor to call in the Crown case an eye-witness of the incidents giving rise to the offence charged does not in itself constitute a ground for setting aside a conviction and ordering a new trial. The decision not to call a particular witness can only have such a result if it constitutes misconduct which, when viewed against the conduct of the trial as a whole, gives rise to a miscarriage of justice."

That is the position where the conviction is safe and satisfactory even without the evidence of the material witness whom the prosecution failed to call. But it can happen that the conviction is not safe and satisfactory without such evidence even though it might have been safe and satisfactory with such evidence. Just as it is true that one must not speculate that the witness would have given evidence which supported the defence case, one must also not speculate that the witness would have contradicted the defence case. And of course there is the criminal burden and standard of proof which the defence can pray in aid.

6. Even where the prosecution cannot be faulted for not covering in anticipation what an accused might say in the witness-box, there is still the matter of a failure to attempt to call evidence in rebuttal.

HCMA 1183/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1183 OF 2003

(ON APPEAL FROM ESCC 2181 OF 2003)

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J U D G M E N T

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7. The Appellant, a male nurse in his early 40s and of previous good character, appeals against his conviction before Allan J. Wyeth Esq. in the Magistrate's Court at Eastern on a charge of having stolen a magazine worth $15.00 at a 7-11 store in Wanchai on 2 July 2003.

8. In his Statement of Findings, the Magistrate helpfully begins by summarising the prosecution and defence cases. As to the prosecution case, he says:

"The prosecution case, put shortly, was that the appellant had entered the subject store, selected a magazine which he held in his left hand and then selected a drink. He approached the cashier and presented only the drink for payment, holding the magazine down by his side as he did so. When stopped outside the store the appellant asked for a chance and asked the matter not be reported to the police. The incident was captured on CCTV, exhibits P1 and P2."

As to the defence case, he says:

"The defence case, put shortly, was that the appellant had only proferred the drink and not the magazine to the cashier but had told the cashier he also had the magazine. He paid by Octopus Card and assumed he had paid for both items. The prosecution had not proven he had not paid for the magazine."

9. The prosecution's evidence that the Appellant had asked for a chance and that the matter not to be reported to the police came from PW1, the manager of the store. PW1 had stopped the Appellant on the pavement outside the store, and he said that the Appellant had said those things to him. In the witness-box the Appellant said that he had told the cashier about the magazine, that he assumed that she had charged him for the magazine as well as the drink when he presented his Octopus Card, and that he had not asked PW1 for a chance but had instead protested his innocence to him.

10. This conflict between the evidence of PW1 and that of the Appellant was resolved by the Magistrate in favour of PW1 whom he believed against the Appellant whom he disbelieved. The basis on which the Magistrate convicted is summarised in the penultimate paragraph of his Statement of Findings where he says this:

"I was satisfied from the evidence of PW1 that the appellant had acted within the store, at the cashier counter and outside the store when apprehended, as described by PW1 in evidence. The appellant had deliberately held the magazine out of the cashier's view as he handed her the can of drink and paid by octopus card. It was his dishonest intention to pay only for the can of drink and that is all he did pay for. He dishonestly intended not to pay for the magazine and in fact did not pay for it and knew he had not. He then left the store with the magazine intending to retain it without paying. Outside the store he acted and responded as described by PW1. In particular he "asked for a chance" and made no mention of the "paid by octopus card" account he later presented in court. The appellant remained mute as PW2 dealt with him."

11. PW2 is the police constable summoned to the scene. Five perfected grounds of appeal against conviction have been filed on the Appellant's behalf. They read as follows:

"1. The Court erred in finding, in the absence of the evidence of the cashier, that the Appellant had not paid for the magazine.

2. Alternatively, the Court erred in finding that the Appellant had deliberately concealed the magazine from the cashier's view, and that the taking of the magazine without paying was done dishonestly.

3. The Court erred in finding that the Appellant's story was inherently improbable.

4. The Court erred in accepting PW1's story uncritically given its inherent improbabilities and contradictions.

5. The Court erred in any event by failing to analyse the evidence of the Appellant and PW1 and convicting the Appellant on the probabilities rather than properly applying the criminal onus to the facts."

12. Where there is a failure on the part of the prosecution to call a material witness, it is open to a trial judge or magistrate to invite the prosecution to call such a witness. But the prosecution is not obliged to accept such an invitation (see Abe1 Muhammed el Dabbah v Attorney General (Palestine) [1944] AC156 and R v Mok Wei-tak [1986] HKLR 1054). And it is somewhat invidious for a trial judge or magistrate to be in a position of issuing invitations that can be declined rather than making orders or directions that must be complied with. A trial judge or a magistrate can himself call the witness. But it is not wholly satisfactory for a trial judge or magistrate to get involved in that way. In relation to both of these alternative courses, namely invitation or calling, there is the additional problem that the materiality of the evidence in question may not become fully apparent to a trial judge or magistrate until a later stage, such as that of final speeches, even though it was or should have been fully apparent to prosecuting counsel earlier.

13. Where the prosecution declines a trial judge's invitation to call a witness, it is open to the trial judge to comment strongly on that in his summing-up: see Apostilides v R (1984) 53ALR 445, 455. But the prosecution's failure to call a witness does not of itself give rise to an inference that the witness's evidence would have been unfavourable to the prosecution: see R v Wheeler [1967] 1 WLR 1531 and R v So Ying-chi [1968] HKLR 429. So it is unclear what strong comment or any comment a trial judge can helpfully make to the jury, or what direction a magistrate can meaningfully give himself, where such an invitation is declined by the prosecution.

14. The position on appeal, as the High Court of Australia said in Richardson v R (1974) 131 CLR 116, is that (taking it from the headnote):

"A failure on the part of a Crown prosecutor to call in the Crown case an eye-witness of the incidents giving rise to the offence charged does not in itself constitute a ground for setting aside a conviction and ordering a new trial. The decision not to call a particular witness can only have such a result if it constitutes misconduct which, when viewed against the conduct of the trial as a whole, gives rise to a miscarriage of justice."

That is the position where the conviction is safe and satisfactory even without the evidence of the material witness whom the prosecution failed to call. But it can happen that the conviction is not safe and satisfactory without such evidence even though it might have been safe and satisfactory with such evidence. Just as it is true that one must not speculate that the witness would have given evidence which supported the defence case, one must also not speculate that the witness would have contradicted the defence case. And of course there is the criminal burden and standard of proof which the defence can pray in aid.

15. In his closing speech, defence counsel took the point that the cashier had not been called. But the Magistrate has not addressed this point either in what he said when convicting the Appellant or in his Statement of Findings. The closest that he came to doing so was when he said this in his Statement of Findings:

"To the defence suggestion that a cashier need merely be told a customer also had a magazine to pay for, without it being presented, PW1 explained "99%" of magazine purchases are processed by the cashier passing a scanner over the bar code on the magazine. For the small number of times that is not done, the cashier can process the sale by "manual operation". In either case the cashier needs the magazine itself to hand/on the counter.

PW1 agreed that in "rush hour" times customers take the common daily newspapers and pay by putting the money on the counter and no scanning or similar is undertaken. PW1 said this was certainly not done with magazines of which there were "many styles and many prices"."

16. But that only goes to what a cashier would or might do or know. It does not cover what a customer might believe. The Appellant's evidence was that he named the magazine when he spoke to the cashier. If so, he might have thought that she knew its price.

17. Counsel for the Respondent told me that the prosecution had not anticipated that the defendant would say in the witness box that he had told the cashier that he was buying a magazine too. Even where the prosecution cannot be faulted for not covering in anticipation what an accused might say in the witness-box, there is still the matter of a failure to attempt to call evidence in rebuttal.

18. In any event, at the end of the day, the position remains that the Appellant's evidence that he told the cashier that he was buying a magazine too was not contradicted by her.

19. Grounds 2, 3 and 4 are broad assertions without particulars. But there is some basis for querying whether the Appellant's story was inherently improbable or at least whether it was as improbable as the Magistrate seems to have thought.

20. As to Ground 5, I do not think that it is fair to say that the Magistrate did not analyse the evidence or that he applied a standard of proof less than the criminal one.

21. Outside of, or at least not strictly within, the grounds of appeal filed on the Appellant's behalf, there were certain concerns which I had, and which I raised with counsel so that both sides could address me on such concerns. Looking at the Statement of Findings as a whole, I am left with an uneasy feeling that the Magistrate was inappropriately influenced by the fact that the Appellant did not protest his innocence when PW2, the police constable, arrived on the scene. The Magistrate commented on this not only in the passage which I have already quoted but also elsewhere in his Statement of Findings. Quite apart from the right to silence implications involved, this does not seem to accord proper weight to the Appellant's evidence, which the Magistrate referred to without comment, that he was embarrassed, confused and scared, and that that was why he made no explanation to PW2.

22. All things considered, I feel driven to the conclusion that this conviction is unsafe and unsatisfactory. I allow the appeal and quash the conviction.