THE QUEEN v. CHAN FUNG-LIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 820 OF 1988

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JUDGMENT

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  On 22nd July 1988 the appellant was convicted by Principle Magistrate A.F.H. Crawshaw at South Kowloon Magistracy of the offence of theft (shoplifting).

1. The charge was:-

"You are charged that on the of 17th May 1988 inside Wing Wah Company at No. 21 Mody Road G/F, Tsim Sha Tsui, at Kowloon in Hong Kong, you did steal one water game M/N TOMY Water Wonderland valued at HK$48.00, the property of the said Wing Wah company.''

2. The appellant was represented by Mr Cheng Huan Q.C., and Mr M.K. Wong at the trial and the charge was strenuously resisted. The hearing commenced on the 14th July 1988, continued on the 15th when it was adjourned for decision. A written decision was read out on the 22nd July. It is quite short and I will set it out:-

"The 41 years old female Chan Fung-lin stands charged with the theft of a water-game from a shop owned by Mr. Fung Tong who was the principal prosecution witness.

In the ,witness box, he presented as a transparently honest man and indeed, a kind man because it was demonstrated more than once by Counsel that his words to the police when making his statement were frequently more damning than his evidence to the Court. His character is such however that I am perfectly sure that the change was brought about partly in sympathy for, and out of consideration for, the defendant's feelings.

He told me a simple story of leaving the shop unattended for a few minutes and of coming down to see you leaving with your left arm bent and held agsinst your waist. He at once discovered the water-game was missing from its place. He followed you to a china shop where he was able to attract the attention of some patrolling policemen.

He asked them to recover his water-game from you. You denied taking it and At this point your behaviour became extremely odd.

Consider there was a strange man with two police constables accusing you of theft. You denied it. Had that denial been true I should have expected it to, be backed up with action Indignation possibly, but co-operation certainly - what better way of giving them the lie than by showing then you had nothing to hide? Your excuses concerning the assembled crowd and your, costume were no more than that, mere excuses. A simple search could have been carried out expeditiously and with all due modesty there and then. You walked back to mr Fung'S shop at a slow pace. Not surprising really. Your mind must have been in some turnmoil at your predicament and how to rid yourself of the water-game concealed somehoW at your back, because I am quite sure that is where it was. Your behaviour back at mr Fung's shop was as obstructive and unco-operative as before and the reason for that became plain to everybody when late it fell down from its place of concealment.

There is no possibility. that it fell from anywhere other than from your person.

Find guilty.''

3. In his Statement of Findings prepared for this appeal, the learned Magistrate said:-

    "The facts I found were these:-

On the 17th May 1988 at about 1:20 p.m. Mr. Fung left his shop, the Wing Wah Toy Shop, unattended for a few minutes to go upstairs. Descending again he saw the appellant leaving the shop, her left arm, bent at 90^o held against her volumionus jacket at her waist. He at once noticed a water game missing. He followed her, never losing sight of her, until he could attract the attention of some patrolling policemen. She was accused of the theft, but deied it. They returned, the appellant walking very slovely, to Mr Fung's shop where at last the toy fell down from its place of concealment at her back.''

4. The appellant had in the Court below denied stealing this toy, the magistrate dealt with the credibility of the appellant in the following passage:-

"I will deal with the reason why I rejected the appellant's evidence first. It will have been seen that I found her behaviour when first challenged to be contrary to what one would expect from an innocent person. A serious allegation was being made against her, yet she refused a reasonable request to show her bag for inspection because 'she did not like to show her things to other people'. When at last she reluctantly agreed to return to Mr Fung's shop she took, on her own estimate, 4-5 minutes to make the trip back, and this agrees with the prosecution evidence that she walked bak 'very slowly' Once in the shop when again asked to set Mr Fung's mind at rest and show him her things she told the police constable 'If you suspect I've stolen things you can take me to the police station' and while she allowed a female to look into her bags, she positively refused to allow her to touch her person or to open her jacket for the police constable to see.

Her behaviour, although suspicious, was no more than that, and was far from being proof of the crime charged, but when at last she was, almost literally, cornered, and the water game fell down from her back the reason for her behaviour became clear. It was because all the time she had been in possession of the water game and that all her excuses and prevarications were no more  than attempts to try and gain time so as in some way to extricate herself from her predicament. None of her evidence raised any doubt in my mind as to her guilt and her denial of the theft was a lie.''

5. There are 7 grounds of appeal. The first two an be dealt with together since they relate to the behaviour of the appellant.

6. Ground 1:

"The learned magistrate, in convicting the appellant, erred in over-omphasising the behaviur of the appellant when confronted with the allegation of theft. It is submitted that the behaviour of the appellant was equally consistent with that of an innocent woman who though her dignity and self-respect were challenged."

7. Ground 2:

"The main reason advanced by the learned Magistrate for convicting the appellant was her behaviour after she was approached by the police officer. We submit that it is as unsafe and/or unsatisfactory basis for convicting her."

8. With respect to Mr Cheng Huan. I don't think the magistrate did over-emphasis the behaviour of the appellant. Neither was it the main reason for conviction. The evidence was circumstantial because nobody saw the appellant steal the toy. It was missing when she walked out of PW1's shop having looked at him and immediately left she was wearing the garment Exh. P2 and it seemed she had something between her arm and her body and according to the record PW1 gave a demonstration with his left arm not hanging down, but at 90 held at waist.

9. The magistrate took into account in balancing the scales the appellant's conduct from the time she left the shop till the time the toy fell down behind her. An examination of the record indicates a singular lack of co-operation with the police. Indeed I cannot say that the magistrate was wrong in the way he assessed the evidence. It appears to me that it was the accumulation of a lot of factors which led the magistrate to his conclusion and if there was a main element at all, it was the falling down of the toy to the ground right behind her.

10. "Ground 3:

"The learned Magistrate convicted the appellant on supicions based upon suspicionsWe submits that it was a wrong approach in assessing the evidence adduced."

11. Certainly nobody should be convicted on suspicion or a series of suspicions. The facts proved must admit no other reasonable conclusion but that the appellant was guilty. In my view this was a very strong circumstantial case agsinst the appellant.

12. Ground 4:

"The learned Magistrate's finding of fact that the object fell from behind her is not supported by the evidence of PW1 and in fact seems to contradict PW1's evidence."

13. I find this assertion difficult to follow. PW1 himself refers to it in the following passage:

"The police constable said 'Can you take off your outer garment for a search?', but the female refused. The police officer said I have to look at your garment Shortly after that I heard a bang and something fell to the ground. I didn't actually see anything falling. I only heard the bang and then I saw on the ground behind the female the water game. It was right behind her It was at the back corner where there was a staircase."

14. Later he said in cross-examination:

"I did not see where the item was dropped from except that it was from behind the defendant. I did not see it fall. I only saw it on the around. It could not have fallen from the shelf because no such item was on the shelf.''

15. PW2 also referred to this in cross-examination when he said:

"I never physically examined her jacket because I saw it fall down at her back and then she moved her hand out from her back."

16. Even the appellant herself said:

"I said 'If you want me to take if off, I want to go to the police station-where I will take it off'. He said Just take it off to let her, have a look I said 'You've asked me to show my bags, now you ask me to take off my clothes. You are troublesome. I'm leaving' I turned and started to leave, something fell down behind me. The police constable said I saw it fall out from behind your back, you must have taken it He said 'I saw something fall down behind your back. You can't leave for the time being'. I said 'Whatever fell out behind my back was nothing to do with me."

17. Later in cross-examination she said^:

''I don't know if Exh 1 fell down at a staircase landing I didn't see it fall. It fell behind me. I was walking forward and they had already picked it out.''

18. How the magistrate's finding of fact that the object fell from behind her can be faulted I really do dot know.

19. Ground 5:

"The learned Magistrate failed to take into account the clothing worn by the appellant on that day. We submit that the clothes worn by her could not possibly conceal the object as suggested by the learned magistrate.''

20. With respect I also have seen the Exhibits and have no reason at all to entertain any doubts on that score.

21. Ground 6:

"In assessing the credibility of PW1 the learned magistrate erred in finding that It was demonstrated more than once by counsel that [PW1's] words to the police when making his statement were frequently more damning than, his evidence in the Court. Further it is submitted that the for challenging PW1's account in Court and in his statement to the police was to thrown doubts on his reliablity and/or credibility.''

22. In cross-examination PW1 did testify:

"I was in front of defendant when it dropped. 'Before it dropped I didn't see anything. 'She was just standing there. I didn't see the position of her hands. I paid no attention to her hand movements.''

23. Perhaps it might have been wiser for counsel cross-examining PW1 to leave it at that. It is not clear from the record how the next piece of testimony came about because none of the questions are recorded but PW1 is then recorded as testifying:

"I did tell the police that I saw, her put her hand inside her jacket and that then I heard the thing, drop.''

24. This would appear from the record to have refreshed his memory because he then said:

"Yes I saw her hand moving at her back. If she hadn't moved the thing would not have dropped. She must have moved her hand before it reached her back.''

25. However he later went back to say the passage I have quoted when dealing with ground 4 that he did not see where the item was dropped from except that it was from behind the defendant.

26. The magistrate was alive to the fact that PW1's statement to the police was more damninp than his evidence and I think his words indicate that he took the view that this witness when giving his evidence at the trial had not coloured his evidence to make it more incriminating than his statement. The magistrate is an experienced professional magistrate and would be well aware that he could not use a prior inconsistent statement which had been adopted by the witness in the witness box as being evidence of the truth of anything contained therein. He would also be well aware that the relevance of such prior inconsistent statements would be on credibility. He formed the view de spite the inconsistencies between PW1's evidence and his police statement that PW1 was a transparently honest witness. I cannot say he was wrong in his assessment.

27. Ground 7:

''For the reasons aforesaid, either individually and/or cumulatively, the conviction is unsafe and/or unsatisfactory. Further Tin submit there should be a 'lurking doubt' as to the guilt or innocence of the appellant.''

28. If that ground of appeal had been left like that, that would have been the end of the matter because it refers to the reasons above which I have dealt with but Mr Cheng Huan wanted to establish his contention that there should be a lurking doubt by a minute examination of the record. To this end he sought, at the hearing of the appeal, to amend this ground by adding the words "on the totality of the evidence adduced'', at the end of the last sentence.

29. Miss Pau for the Crown generously agreed to this and Mr Cheng Huan took me with commendable thoroughness through the record.

30. Suffice it to say that I an obliged to Mr Cheng Huan for his assistance and have had the benefit of a full consideration of the evidence in this natter as recorded. Having lookedclosely at the record, I entertain no doubts at all that the learned magistrate reached the right conclusion on his finding of guilt.

31. For these reasons I dismiss the appeal and affirm the conviction.