R. v. Kwan Chee Keung

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 683 OF 1996

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JUDGMENT

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1. The Appellant was convicted on the 27th of March 1996 of one charge of theft and of one charge of attempting to obtain property by deception. He was sentenced to six months imprisonment in respect of each charge the sentences to run concurrently. He appeals each of those convictions and the sentences imposed upon them.

2. There was no dispute that on the 11th of August 1995 the Appellant, who is a medical practitioner, went to Lane Crawford Department Store in Queens Road Central and chose some $40940.00 worth of crystal and produced a credit card to pay for it. The shop assistant attempted to obtain approval for the use of the card but approval was not given by the card company. The Appellant attempted to flee but was stopped by a security officer of the store and held until the police arrived. It was also common ground that a wallet, the credit card and an Identity Card belonging to a Dr. Y.Y. Kung were in the possession of the Appellant that day together with a duplicate key to locker No. 28 in the doctor's changing room at Hong Kong Sanatorium. Dr. Kung had left his clothing together with the wallet the credit card and his Identity card in that locker. It was the case for the Appellant that on that day he had gone to the Hong Kong Sanatorium to operate and used a duplicate key to open Locker No. 28 so as to place his clothes inside. He did so but did not operate. When he retrieved his clothes his case was that he must, by mistake, have picked up the property of Dr. Kung in his possession.

3. It was the evidence for the Prosecution that when the Appellant gave his credit card to the assistant in the store the assistant addressed him as Mr. Kung and asked him to produce his Identity Card. The assistant testified that the Appellant produced an Identity Card matching the name on the credit card and said that he had had a haircut and so the photo on the Identity Card with long hair no longer matched his appearance. The assistant left the counter to obtain instructions and whilst at the cashier station saw the Appellant leaving by the escalator. The production of the Identity Card was denied by the Appellant as was being addressed as Mr. Kung and making any comment about his appearance.

4. The first ground of appeal is that the Magistrate made no proper assessment of the evidence at trial and in particular made no assessment of the evidence given by the Appellant as to what happened in Lane Crawford and that he ignored the Appellant's defence when he assessed the evidence as a whole.

5. The Magistrate set out in his statement of findings the evidence adduced in this trial and in doing so set out both the version of events given by the prosecution witnesses and that given by the defence. He therefore cannot be criticised by suggesting that he had not had the defence in all its detail in mind when considering his verdict. This was a case where the success of the prosecution rested almost entirely on the credit of the shop assistant from Lane Crawford. If that witness was believed, to the required standard, then the fact that the Appellant falsely adopted the name on the credit card, supported the falsity with an Identity Card matching the credit card and justified the difference between his appearance and that on the Identity Card provided ample evidence for the Magistrate to find that the credit card was stolen and used dishonestly to attempted to obtain goods. This required him to assess the evidence of the Prosecution witness in the light of the evidence of the Defence case and to see if he was then sure of the guilt of the Appellant. He clearly had the defence case in mind when he assessed the evidence of the assistant for he sets it out. He considered the inconsistency that became apparent as to whether the Identity Card was given by the assistant to the police or taken by a police witness from the Appellant. He did not believe the Prosecution police officer who said he seized the Identity Card from the Appellant. He describes that witness as follows:

"I have to say I found the police Officer a totally unconvincing witness. I don't think that he was a liar at all. But his approach to the comparatively simple process of answering direct questions struck me as so bizarre so that at the end of the day I consider it would be totally unsafe to place any weight on any verbal admissions he attributes to the Defendant."

6. Obviously he viewed in the same light the evidence that officer gave in respect of his seizure of the Identity card from the Appellant.

7. The Magistrate in his findings states that he was unable to determine from the manner in which the Appellant gave evidence whether the Appellant was an honest or dishonest witness. He said :

"His demeanour was an entirely neutral factor in my assessment of his testimony."

8. Mr. Cheng Huan Q.C. argues that since the demeanour of the Appellant was a neutral factor the Magistrate should have drawn a conclusion in favour of the Appellant and found him to be an honest witness. The fact that the Magistrate was not able to determine anything from the demeanour of the Appellant means that it was not a factor at all. Mr. Cheng Huan Q.C. further argues that having derived no assistance from the demeanour of the Appellant in determining his credit the Magistrate was then wrong to rely in part on the demeanour of the shop assistant to determine his credit. It cannot be right to say that because you are unable to use demeanour in any way in your assessment of one witness you are barred from its use in respect of another witness.

9. I am referred to the Psychiatric report prepared by Dr. Sylvia Chia-lu Chen and the Magistrate is criticised in that he did not find a doubt in the case of the Prosecution by her finding in respect of the Appellant that :

"Taking into consideration all his recent life events, the stresses both more remote and recent and continuous, he was subjected to, and their meaning for him, I consider such muddled behaviour in his flustered mental condition, possible and plausible."

The Magistrate dealt in detail and at length with this report. He considered that only part of its content was supported by testimony and that was the part given to Dr. Chen by the Appellant. He analysed the report in that light and in the light of the evidence that the Appellant at the time was practicing as a medical practitioner. He specifically found that the findings of Dr. Chen did not assist him. He came to that conclusion early in his findings and it is argued that by doing so the Magistrate assumed findings of fact which he did not refer to until later in his findings and he had therefore arrived at premature and false findings. A statement of findings must be looked at as a whole. Sometimes it is impossible to set out findings without referring to matters not before dealt with in the document and in respect of which specific findings are later made. There is nothing in this complaint.

10. It was argued that the approach of the Magistrate seemed to have been that because he believed the evidence of the shop assistant he must convict the Appellant and that this contradicted the ruling of the Magistrate that he could not be sure if the Appellant was telling the truth. Firstly if the Magistrate believed so he was sure the evidence of the assistant having tested it against the case for the defence then he was entitled to convict upon it. Secondly the Magistrate did not find that he could not be sure if the Appellant was telling the truth. The passage to which counsel refers is that which I have quoted above in respect of the demeanour of the Appellant. That passage is not amenable to the meaning given to it by counsel.

11. The last specific ground of appeal relates to the omissions in the statement given to the police by the shop assistant after the event and the different versions given by the assistant and an officer as to how the Identity Card of Dr. Kung came into the hands of the police. The assistant said he gave it to an unknown officer and a police officer who had not been at the scene said he seized it from the Appellant. The Magistrate on the first issue directed his mind to it and found that firstly it was almost inevitable that a potential witness will say less in his statement that will emerge under examination in chief and cross examination. Secondly that the specific discrepancies in this case caused him no uneasiness about the testimony of the witness.

12. In respect of the inconsistency in relation to the Identity card he said :

"As to the Identity Card point, I have already made my views about PW10 quite plain. I consider that he was quite capable of getting the exhibit gathering process hopelessly mixed up in his mind. But in any event it is not necessary to go so far. PW4 said he gave the Identity Card to a policeman. It is quite consistent with that and the general investigation skills displayed at the time that the card was then handed back to the defendant."

13. The complaint is made that the Magistrate speculates that the card was handed back to the Appellant but he does no more that find as a fact that the card was handed by the shop assistant to a policeman, accept that later a policeman (PW10) took it from the Appellant and to comment that the events were consistent with the manner of the investigation.

14. I am satisfied that the Magistrate had all the evidence and the case for the Appellant fully in mind when considering his verdict. I am satisfied that he considered and addressed all those matters going to the credit of the witnesses and that he has reached a proper verdict in this matter. The appeal against conviction is dismissed and I will hear counsel in respect of the appeal against sentence.