R. v. NG YAU CHUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 770 OF 1994

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J U D G M E N T

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1. The appellant, who is a serving detective police constable, was convicted after trial before a magistrate of a charge of theft and sentenced to 4 months' imprisonment. He appeals against both conviction and sentence.

2. Madam Wong Chuen-han, PW1 and her husband Tsang Chi-ming, PW2 lived at Flat E, 38th Floor, Block 4, Waterside Plaza, Tusen Wan. On their returning home in the evening of 15 December 1992 at about 8:30 p.m., they found that the main door was locked from inside. They immediately suspected burglary and made a report to the caretakers and the police. The caretakers, 4 to 5 in number, arrived first and they were followed by uniformed police officers. Later, PW4 Inspector Lee Fuk-wah arrived with the appellant and some of the uniformed officers then left.

3. It is the evidence of Madam Wong that after the arrival of Inspector Lee and the appellant, the inspector asked the appellant to take a statement from her while he himself left the flat with the caretakers to make an inspection of the roof. The appellant did not take any statement from her and just asked her what property had been stolen. She took the appellant to the master bedroom (Bedroom No. 2) and inside this room the appellant took some jewellery boxes, opened them and looked at the contents. At this point of time, the fingerprint officer arrived and she led him into the room. The two pearl necklaces, exhibits P3A and P3B were still lying on the bed. While the fingerprint officer was lifting fingerprints, the appellant sat on the bed. After the fingerprint officer had finished, she took him to the kitchen and the appellant remained in the room. The appellant was still sitting on the bed when she returned to the room and the appellant handed her a diamond wrist chain, which she took to show her husband in the sitting room. She put on the diamond wrist chain and walked back to the room where she found the appellant still sitting on the bed. The appellant gave her a Rolex watch warranty certificate which she took to the sitting room to put it away. On seeing PW1 return to the room this time, the appellant got up from the bed where he was still sitting and walked out of the room. She also left the room but when she returned she found that P3A and P3B had disappeared. She went to the sitting room to tell her husband who then came inside the room to take a look. The appellant also came into the room for a while and then went into the toilet. PW1 and her husband continued to search for the missing pearl necklaces with no success and while they were doing this the appellant came out from the toilet but he went back to the toilet again. As she was walking out to the sitting room, she saw the appellant coming out from the toilet. It was about this time that Inspector Lee came into the flat when the appellant went into the toilet the third time. PW1 told Inspector Lee that she suspected that the appellant had taken her pearl necklaces because the appellant had gone into the toilet several times. Inspector Lee went to the toilet and knocked on the door asking the appellant to open the door and it was after a while the door was opened. Before it was opened, PW1 heard the sound of flushing water.

4. It is not disputed that the pearl necklaces, P3A and P3B, were found at the bottom of the toilet bowl. There were also some cigarette butts. In answer to a question by Inspector Lee, the appellant said that he did not see the pearl necklaces at the bottom of the toilet bowl.

5. It is her evidence that no one else had entered Room 2 and the toilet during the relevant time, except that the fingerprint officer entered the room to look for fingerprints. She said that before she saw the pearl necklaces on the bed, she had told uniformed police officers that the pearl necklaces were missing and at that time the appellant had not yet arrived. This was because she had not entered the room being in fear that the burglars might be still inside the flat. PW1 denied a suggestion by defence counsel that she put the blame on the appellant because the police had not arrived promptly otherwise the burglars might be arrested.

6. No one saw the appellant take the pearl necklaces or he throw them into the toilet bowl. The evidence against him is entirely circumstantial depending on inferences to be drawn from the evidence of PW1. She is the most important witness in the whole episode and as such her evidence must be examined most critically and tested against the evidence of other witnesses.

7. I would deal with the evidence of Inspector Lee first. This witness testified that he and the appellant arrived at the scene at about 9:40 p.m. He and the appellant made an inspection of the flat, the sitting room, the kitchen, the toilet, Room 3, Room 2 and lastly Room 1 before he and the appellant left the flat to check the roof. He said that he and the appellant did not in fact go up to the roof because the door to the roof was locked. He and the appellant returned to the flat first and then he went with an auxiliary police constable and PW3 to the roof. This evidence is somewhat different from the testimony of PW1 to an important and material extent because she maintained that before she took the appellant into Room 2, no one else had been to that room and that the appellant did not leave the flat after his arrival.

8. The evidence of PW3, Cheung Pak-lung, the caretaker, is even more amazing. According to him, it was in fact the appellant, not the inspector, who went up to the roof with him and stayed there for several minutes. He said that he entered the flat together with two uniformed police officers who were the first batch of officers to arrive at the scene. He was standing outside the master bedroom along side with PW1 and saw the jewellery boxes and a pearl necklace. His evidence is in conflict with the evidence of PW1 and that of her husband, PW2 who made it categorically clear in the course of examination in chief at page 74 of the Appeal Bundle that :

"the caretaker did not enter the flat until my wife made a complaint to Inspector Lee. I am sure about it."

9. In his statement of findings at page 195, the magistrate said this :

"Having heard PW1 in the box and observed her demeanour, I find her to be an honest witness. Discrepancies with her previous testimony as to detailed interpolation of events or with other PW's on the details did not cause me to doubt her evidence on the positive observation of the main facts. I also find other PW's to be truthful witnesses and not merely protecting their self interests and I accept their evidence."

10. This is obviously not a case that can be decided by the demeanour of one witness alone. Where there are vital and obvious discrepancies between the evidence of several witnesses, these discrepancies must be resolved in a rational and convincing manner. The magistrate did not seem to have addressed his mind to the real problem. All the witnesses could not be right at the same time. If PW1 was mistaken or forgetful on some events, she could easily be mistaken or forgetful on others. The question which the magistrate ought to ask himself is whether the events had taken place in exactly the manner that PW1 described. If there was any doubt in his mind he must acquit. In the light of the obvious and irreconciliable discrepancies on important matters, there must be a doubt in the mind of the magistrate and the conviction therefore cannot be regarded as safe and satisfactory.

11. For the reasons I have given, I allow the appeal, quash the conviction and set aside the sentence.