THE QUEEN v. YUEN YUN YU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1605 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 11th October 1990, the appellant was convicted in the magistrates court of South kowloon of theft of a Money Link card, the property of the Standard Chartered Bank.

2. The whole of the prosecution case consisted of admissions made by the appellant under Section 65C of the Criminal Procedure Ordinance.    Part of those admitted facts consisted of the brief acts of the case in the following terms:-

"      At about 1922 hours on 15.8.90, PWs 3 & 4 stopped and searched defendant at junction of Reclamation Street and Namking whilst on plaincloth patrol.

 

2.    A Standard Chartered Bank MoneyLink card account No. 000-003-404-20160272 in name of PW1 was found in defendant's wallet. When being questioned, defendant said that he did not know the card owner and he picked it up to keep in his pocket. PW3 cautioned and arrested defendant. Defendant further stated that he picked it up at the building entrance of No. 185 Temple Street at about 0900 hours on 6.8.90. Defendant lives at 5/F of the building.

 

3.    PW1 was interviewed by police on 15.8.90. He lives at 6/F of the same building. He made an application for the card in late July 90 but he never received the card.

 

4.    A staff of the bank, PW2, confirmed that he sent out the card by ordinary mail on 24.7.90. As no acknowledgement of receipt was received from PW1, the card had already been cancelled. The card bears no expiry date, and can be presented to a bank counter for cash withdrawal with authorized signatures although its use in ETC machines is not possible.

 

5.   Defendant was charged on 19.8.90.

 

Ownership of the card is not disputed.”

3. The appellant testified in his own defence that he picked the card up on the 6th August from the round at the staircase entrance of the building where he lives.   This was at about 9 a.m. He didn't check it, though he knew it was a MoneyLink card.   He knew it was a card to withdraw money.    He did not read the words on the card and did not know who was the owner of it.   He kept the card in his wallet to "show off". By keeping the card, he did not know he was not acting honestly.   He did not consider returning it to the owner, that is the person whose name is printed on the card.    The owner must have reported the loss of it.   The card was useless already.   He picked it up.   He knew such card could only be used if the personal code is known.   He did not have this personal code and had not tried to use it.   He did not know if it could be used to obtain cash from a cash counter.   He knew it had no signature on the back.

4. Under cross-examination, he admitted, inter alia, that he didn't consider returning the card to the bank, but looking at the card he agreed he should have done so.

5. When asked the question "Why not return to bank?", he answered "I did not know.   I thought owner should return it.".   When asked if he thought the card would be valuable if reported lost.   He replied "No value after reported lost".   He admitted he had no intention to return the card.

6. The magistrate was satisfied that there was an appropriation of the card belonging to somebody else (other than the appellant himself) and that the appellant intended to retain the card for his own use, thereby permanently depriving the owner of the card.   He held that the only ingredient of theft which he had to consider was dishonesty.

7. There is no criticism of the magistrate for confining his consideration to this issue.  A number of grounds of appeal are set out which in effect claim that the magistrate misdirected himself on the law in respect of this ingredient of dishonesty (grounds 2 and 3) and failed to evaluate and consider properly the evidence of the appellant (ground 1).   There is a fourth ground which is merely that in the circumstances there are grave doubts that the appellant was acting dishonestly and a conviction is unsafe and unsatisfactory.

8. It is convenient for me to deal with ground 3 first because that relates to a particular section in the Theft ordinance which specifically refers to the meaning of the word "dishonestly".

9. The magistrate in his judgment delivered at the conclusion of the case said:

"Although Section 3 of Cap. 210 provides certain circumstances where appropriation is not dishonest but in this case the facts agreed do not come within these circumstances."

10. Mr Tolliday-Wright, for the appellant, argues that the magistrate was wrong to take that view.  Mr Chui, for the respondent submits that the magistrate was right because such a belief by the appellant could not stand in the light of the facts.   In my judgment, the magistrate should not have confined himself to the agreed facts, but he should have looked at the evidence as a whole including the evidence of the defendant.   Had he considered the defendant's evidence, he might have been able to infer that the defendant's conduct was not dishonest, having regard to the circumstances in (b) above.

11. The next ground of appeal is ground 2 in the following terms:

"The Learned Trial Magistrate wrongly applied the test in R v. Ghosh (1982)2 All ER 689 (Page 9 of the record).

 

'The Defendant coming from China recently, does not affect the reasonable and honest people standards of Hong Kong. It is the people of Hong Kong that counts.'

 

 

Whilst this may be correct for the 1st limb in the Ghosh Test : The objective test; the fact that the Appellant being a young recent arrival from China is relevant as regards the 2nd limb in the Ghosh Test : the subjective. test.

 

See R v. Ghosh (1982)2 All ER 696."

12. This ground is based on a passage in the judgment of the magistrate given at the end of the trial when he said :

"The tests stipulated in R v Ghosh (1982) does not apply to each and every case. These tests are :-

 

13. Mr Tolliday-Wright submits that the magistrate was wrong, first of all in holding that the test in Ghosh does not apply to each and every case.   Secondly, he submits that the magistrate didn't deal properly with the second limb of the Ghosh test.   He didn't reject the appellant's story.   The appellant left the court somewhat baffled when he was found to be dishonest, but the magistrate had not rejected his evidence.

14. Certainly, it would appear from the words of the magistrate in the passages of his judgment set out above that his directions to himself were less than clear.    Further it would appear that he subsequently came to realise this because in his Statement of Findings delivered some three weeks later he dealt with this matter in greater detail. He said:

15. Mr Tolliday-Wright has referred me to a number of passages in Ghosh and in particular a passage from the judgment of Lord Lane C.J. where he commented that I the knowledge and the belief of the accused are at the root of the problem. He then said:

"Take for example a man who comes from a country where public transport is free. On his first day here he travels on a bus. He gets off without paying. He never had any intention of paying. His mind is clearly honest; but his conduct, judged objectively by what he has done, is dishonest.  it seems to us that, in using the word 'dishonestly' in the 1968 Act, Parliament cannot have intended to catch dishonest conduct in that sense, that is to say conduct in which no moral obloquy could possibly attach."

16. Thus, says Mr Tolliday-Wright, the fact that the appellant came from across the border was also a matter which was relevant to the decision of the magistrate in deciding subjectively whether the defendant had the necessary dishonest intent.

17. Mr Chui submits that the appellant came to Hong Kong in 1988 and had been here for two years.  The magistrate therefore did not apply the test wrongly.  In fact the evidence of the appellant was to the effect that he arrived in Hong Kong in 1988 but the exact date was not given.

18. Although a magistrate is not bound to give a judgment setting out his reasons for verdict at the conclusion of the trial, if he does so, it is an indication of the matters he considers important to mention at that time.  And if he subsequently provides a statement of findings and reasons for judgment under Section 114 of the Magistrates Ordinance dealing with the issues in much greater detail, the appellate court must consider both carefully to ensure that justice has been done at the trial. The appellate court will usually accept the magistrate's assertions in his Statement of Findings that he did direct himself a particular way, unless that assertion cannot be reconciled with what appears on the court record.

19. In this case, the magistrate in considering the relevance of section 3 of the Theft Ordinance apparently considered only the admitted facts. In this, as I have said, he was clearly wrong. Section 3 should have been considered in the light of the evidence as a whole, including the evidence of the appellant. Furthermore, at the time when he gave judgment, he did not direct himself clearly on the Ghosh test.

20. Although the magistrate said that the Ghosh test didn't apply in every case, he didn't say whether it applied to the present case. This leads me to suppose that he might have considered it didn't apply, but made reference to it "ex abundanti cautela". If he meant by this that it didn't apply, he was plainly wrong.

21. With the greatest of respect to the magistrate what he described as trite law is also incorrect.  the responsibilities of the card holder to the bank are governed by the terms of the contract between him and the bank, which may vary from one contract to another.

22. But it does appear from that passage that the magistrate, when he wrote his Statement of Findings was primarily concerned with the fact that although the card may have been of no value to the appellant, it nevertheless may have been of value to the bank. Although he does not say as much, presumably he means by this that the appellant should have appreciated that he was appropriating a card which may have been of some value to the bank with the intention of permanently depriving the bank of it.

23. What this overlooks is that it was the appellant's case that he didn't know the bank was the owner. He thought the card holder was. Furthermore he didn't think the card was of any value to the cardholder. This was the defence that was put forward and this was the defence the appellant was entitled to expect would be considered by the magistrate.

24. I am left with a strong feeling of disquiet in this case that the magistrate failed to consider the whole of the evidence when he was considering the relevant issue, and he failed to direct himself properly on the Ghosh test and its application to the evidence at the relevant time when he was making the decision.

25. In the circumstances I consider the conviction is unsafe and unsatisfactory and the appeal is allowed and the conviction set aside.