HKSAR v. CHU HONG LIN

HCMA 1042/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1042 OF 2000

(On appeal from Tsuen Wan Magistracy No. 2327 of 2000)

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J U D G M E N T

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1. The appellant, CHU Hong-lin, appeals against his conviction after trial on 28 August 2000 by Ms. L. K. Loh Permanent Magistrate sitting at Tsuen Wan Magistracy for an offence of theft, contrary to s.9 of the Theft Ordinance. Ms. Loh sentenced the appellant to pay a fine of $1,000 for this offence. The appellant does not appeal this sentence.

2. The appellant was represented by counsel at trial and gave evidence on his own behalf.

3. In brief the prosecution's case was that on 16 July 2000 the appellant stole two newspapers from a rack outside the 711 Convenience Store at Lido Garden, Castle Peak Road, Tsuen Wan. The newspapers were on a rack just outside the entrance to the shop. There was a notice displayed prominently on the top of the rack reading: 'After choosing the newspaper you need, please pay inside the shop.' The shop manager saw him folding up the two newspapers at the entrance to the shop and going off without paying for them. The manager gave chase and saw the appellant standing in an estate agency next door, holding a paper carrier bag with the newspapers inside.

4. The appellant's case, as given in evidence, was that he felt dizzy and had a headache when he woke up that morning. He had taken medication. On his way to work, he passed the 711 store and picked up the newspapers intending to pay, but then he again felt dizzy and tired. He leaned against the window of the 711 store for a few minutes then went next door to the estate agents to sit down. The 711 store manager came in and said that he had not paid for the papers, he took out $20 to pay. He had over $3,000 on him at the time. He could not remember what he said to the police officer after caution. In fact he said that he thought the papers were free, so he had taken them to read at work.

5. A 3-page document setting out the grounds of appeal has been filed. With one exception; the grounds boil down to no more than a criticism of Ms Loh's approach to the evidence.

6. This was a case that revolved around the credibility of the witnesses both for the prosecution and the defence - the defendant himself. The person appointed to resolve issues of credibility is the trier of fact, the trial magistrate, it is not for me - or any appellate judge - to usurp her function. From her statement of findings, it is quite clear that Ms. Loh understood the evidence given before her and that she analyzed and applied it correctly. She had the advantage, which I do not, of having heard and seen the witnesses - including the appellant - give evidence. Contrary to the imputation in the grounds of appeal, she did not over emphasise or place too much reliance on demeanour when assessing credibility.

7. Ms. Loh was aware - and demonstrated so in her statement of findings - that even though she disbelieved the appellant, the burden still lay on the prosecution to prove the appellant's guilt on the charge.

8. There is nothing in her statement of findings which indicates to me that her approach to the evidence, except in one respect, was in any way wrong. It is not for me to substitute any view I may have on reading the appeal bundle for her view on the veracity of the witnesses.

9. The one matter that has caused me some concern arises from a direction she gave herself in her statement of findings on lies. What she said, after referring to the appellant's reason given to the police officer who arrested him, was this:

"Lies could be indicative of guilt, and should be taken into account with all other evidence to support the prosecution's case: HKSAR v Mo Shui- shing [1999] 1HKC 43, and lies can be relied on to support the prosecution's case if satisfied that the appellant did not lie for an innocent reason: HKSAR v Yeung Sun-choi CACC 552/1998, I am satisfied that the appellant did not say these things to the officer for an innocent reason."

10. This was a wholly unnecessary self-direction, in MO Shiu-shing - it is reported in (1999) 2HKLRD 155 - Stuart-Moore JA said:

"In a large number of cases, where an allegation has simply been made against the defendant that he has been lying, this subject can be dealt with by the judge directing the jury in terms that this is an issue which relates solely to credibility, that is, that it is for the jury to decide whose evidence they believe. In such circumstances, no more needs to be said."

11. Stuart-Moore JA's remarks echo what was said by Kennedy LJ in R v Burge & Pegg [1996] 1 Cr App R 163 at p. 172 E-G:

"...the direction on lies...comes into play where the prosecution say, or the judge envisages that the jury may say, that the lie is evidence against the accused; in effect, using it as an implied admission of guilt...this is...quite distinct from the run of the mill case in which the defence case is contradicted by the evidence of prosecution witnesses in such a way as to make it necessary for the prosecution to say that insofar as the two sides are in conflict, the defendant's account is untrue and indeed deliberately and knowingly false."

12. This case, like so many others that come before the magistrates' courts, was such a 'run of the mill' case. There was no need for Ms. Loh ever to consider the question of a separate direction on lies. Given what the Court of Appeal said in MO Shiu-shing - particularly the comment at page 168 F-G of the HKLRD report on the possible need to give a direction on lies where there is a danger that the jury may believe that lying goes to proof of guilt - it is hard to envisage any case where a professional trier of fact would need to have resort to a direction on lies. One hopes that it is axiomatic that a professionally qualified magistrate knows that basic and fundamental point of law.

13. The case demonstrates, yet again, the almost reckless enthusiasm on the part of some magistrates to give themselves a direction on lies where none is needed. However Ms. Loh's unnecessary self-direction is not fatal to the conviction, for she made it plain later in her statement of findings that even without her reliance on the lie she would have convicted the appellant on the store manager's evidence.

14. I am satisfied that Ms. Loh's conviction of the appellant on the charge is unassailable on appeal and therefore the appellant's appeal against his conviction is dismissed.