HKSAR v. WONG WAI YEE

1997 NO. MA 840

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant, Madam WONG Wai-yee, appeals against her conviction, on 7 August 1997, by Mr M.D. Hill, Magistrate, sitting at Eastern Magistracy, of an offence of theft. She also appeals against the sentence imposed of a fine of $5,000 and a costs order of $5,000.

2. The appellant is a 41 year old woman of hitherto good character.

3. The evidence for the prosecution came from a security guard at Jusco Department Stores at Kornhill and from the police officer who arrested the appellant at the Jusco Store. The evidence of the security guard was that he saw the appellant on the 2nd floor of the store pick up a "Hello Kitty" bag and a Japanese doll. She then went down to the 1st floor where she picked up a set of "Mickey Mouse" clothing which she put into the "Hello Kitty" bag. She then walked out of the shop into the street. She was stopped outside, and was still carrying the Japanese doll and the "Mickey Mouse" clothing in the "Hello Kitty" bag. When stopped, she said to the store detective, "Please give me a chance. Don't catch me." Back in the shop's office, she was arrested and cautioned by the police officer. In answer to his caution, she said "Ah Sir, I'm sorry, I don't know why I stole. Give me a chance, this is my first time."

4. At trial, the defendant elected to give evidence. She told the magistrate that she'd picked up the two items, the doll and the "Hello Kitty" bag, on the 2nd floor but had not paid for them there as she wanted to see if the right size "Mickey Mouse" clothing was available on the 1st floor for one of her daughters. As she was seen to pick up the "Mickey Mouse" clothing and put it into the "Hello Kitty" bag, she said that she did this because she had a sore elbow and it was more comfortable to put these items into the bag for transportation to the cashier, rather than carry them over her arm. She said that she then went to the cashier to pay, there were a lot of people queuing and in the queue she heard a woman say that it was raining outside. She said that as she'd put washing on the line that morning, she wanted to ring her daughters at home to tell them to bring the washing in. She then went outside to see if it was raining and, if so, she intended to call her daughters from the telephone outside the shop and ask them to bring the washing in.

5. Once outside, she was confronted by the security officer. She said that she told him that she did not intend to steal. She said that she offered to go back into the shop and pay and that she'd only gone out to make a phone call. She also told the learned magistrate that she told the policeman that she had not intended to steal and that she only went out to make a phone call from the phone outside the shop. The defence thus was that she did not have an intention to steal the items.

6. The learned magistrate considered all the evidence. He found the fact that she'd put the items into the "Hello Kitty" bag to be highly suspicious and he did not accept her explanation for doing that.

7. Her allegation that she'd queued at the cashier's counter was denied by the store detective who told the magistrate that she'd walked straight past the cashier's counter and had not stopped at all, the magistrate accepted the evidence of the security officer.

8. As I have said, the appellant told the magistrate that it was her case that she told both the police officer and the security guard that she did not intend to steal and had only gone out to make a phone call. Both of those men denied that that had ever been said to them by the appellant. Both had said that she begged for a chance and admitted the theft. Again the learned magistrate accepted the evidence of the police officer and the security guard as to what was said and he rejected the evidence of the appellant.

9. Those were findings which the learned magistrate was entitled to make on the evidence and, indeed, no complaint in relation to them is made on appeal. The appeal concerns the learned magistrate's treatment of character evidence given by and called on behalf of the appellant. She called evidence from Father Joseph FAN Kan-tong, a Roman Catholic priest, and she herself gave evidence that she was of good character. Father FAN said that the appellant is a member of the Catholic faith and an attender at the church he is in charge of, St Francis of Assisi Church in Sham Shui Po. He said that she assisted in various voluntary organisations run by the church and he was of the opinion that the appellant was an honest and trustworthy person. He said that she is loyal, decent and responsible.

10. The appellant, herself, said that she and her family were planning to emigrate to the United States of America and that she needed a certificate of no criminal conviction from the Hong Kong Police Force for production to the United States immigration authorities. Her counsel submitted, in his closing address to the learned magistrate, that knowing that such a certificate was required, it would be unlikely that the appellant would resort to shop theft. She also, in her own evidence, gave evidence of her involvement in voluntary work for the Catholic church, and again it was submitted by her counsel at trial that she was a woman of good character who would not resort to stealing.

11. Towards the end of Father FAN's evidence, which was rather short, he was asked by the appellant's counsel this question:

"Obviously now you know what she has been alleging?"(sic)

12. The learned magistrate interposed:

"I don't want an opinion from him on whether he thinks he is guilty of theft or not. That's not for him to say and I'm not interested in his opinion."

13. Mr CHEUNG, her counsel, said:

"All right. Of course, obviously that's a question for you to answer, Sir".

14. The magistrate then interposed:

"Has he ever been shopping with her? Father, have you ever been shopping with her?"

15. Father FAN replied:

"No."

16. The magistrate then said:

"Right, these character witnesses, I've heard them before, I allow the evidence but they carry very little weight, I must say, as to whether somebody has committed theft or anything else."

17. And at that stage, the examination-in-chief of Father FAN ended and there was no cross-examination.

18. The learned magistrate said this in his statement of findings:

"The defence called a Catholic priest who testified as to the appellant's character and work performance. As I said at the hearing, such character witnesses carry very little weight with me in deciding whether a person has committed a crime such as shop theft or not."

19. He also said in relation, so far as I understand it, to the appellant's own evidence of her good character:

"Also she had a clear record and was a married woman of 41 years of age. I did take into account that a conviction may affect her being able to emigrate to the United States, but in my experience, this does not deter people from offending. It is afterward they realise the consequences of their actions. I consider this was the situation that applied here. I did consider all the evidence and her clear record both before reaching my verdict. At the end of the day, I was satisfied beyond reasonable doubt that she was guilty of theft and I convicted her accordingly."

20. I have already read out the comments he made at the end of Father FAN's evidence.

21. It is also necessary for me to read something he said in his oral reasons for conviction, which he delivered extempore at the end of the trial, these are found at page 60 of the transcript, he said:

"And as for being a lady who would not do this sort of thing, in the years I have been on the bench it's always something that has astonished me, is the type of women that succumb to shoplifting when they've got absolutely no need to. Yes, it was a very silly thing to do, especially when she wants to emigrate to the United States, but there it is."

22. It is these observations by the learned magistrate which give rise to this appeal.

23. Mr Macrae, Counsel for the appellant, says in his grounds of appeal that the learned magistrate:

"...erred in law by adopting, or appearing to adopt, an unwarranted and inappropriate view of evidence as to good character. Instead of considering such evidence, both in terms of the applicant's credibility as a witness and propensity to commit the offence of theft, he considered that it had little effect in determining the appellant's propensity, whose good character did not make her less likely to succumb to shop lifting."

24. The law relating to a court's approach to good character is this: In R v Vye and others [1993] 97 Cr. App.R.134, the English Court of Appeal issued fresh guidelines on the topic; guidelines had been given earlier by the Court of Appeal in R v Berrada [1990] 91 Cr.App.R.131. The Lord Chief Justice of England, Lord Taylor, prefaced his words in Vye with these comments:

"These three appeals are all based upon criticisms of the learned judges' directions in regard to good character. At one time these issues would not have been regarded even as arguable in this court.

The trial judge was understood to have a broad discretion to comment on the defendant's good character or not as he thought fit. The principle applied by this court was that the judge had no obligation to give directions on good character or even to remind the jury of it. (Aberg (1948) 32 Cr.App.R. 144, Smith (1971) Crim.L.R. 531).

Since about 1989, however, there has been a dramatic change. This Court has been inundated with appeals based upon the judge's alleged misdirection or failure to give any direction to the jury about good character. Save in one respect, clear principles have not emerged and Mr. Martin Wilson Q.C., on behalf of the Crown in these appeals described the present situation as 'something of a lottery'. After drawing our attention to all the relevant authorities reported and unreported since 1989, Mr Wilson submitted that this court should now give clear guidance as to the relevant principles."

25. The guidance given was this:

26. Firstly, that where a defendant has given evidence, a direction should be given as to the relevance of his good character to his credibilty.

27. Secondly, where a defendant does not give evidence at trial but relies on exculpatory statements or answers given by him to the police or others, the judge should direct the jury to have regard to the defendant's good character when considering the credibility of those statements. Where the jury is considering the truthfulness of any such statements, it would be logical for them to take good character into account just as they would in regard to a defendant's evidence. The judge is entitled however to make observations about the way the jury should approach such exculpatory statements in contrast to evidence given on oath.

28. Thirdly, if a defendant of good character has neither given evidence nor made pre-trial answers or statements, no issue as to his credibility arises and no direction relating to his good character to such issue is required. However, a direction as to the relevance of a defendant's good character as to the likelihood of his having committed the offence charged should be given, whether or not he has testified or made pre-trial answers or statements. That is usually referred to by the shorthand term of "propensity".

29. Fourthly, it must be for the trial judge in each case to decide how he tailors his directions to the particular circumstances. For example, he will probably wish to indicate that good character cannot amount to a defence, and in the case of a long serving employee, he might wish to emphasise the direction as to the relevance of good character to propensity to commit a crime more than he would in the average case.

30. Fifthly, a defendant who is of good character is entitled to have the judge direct the jury as to its relevance even if he has jointly tried with a defendant of bad character.

31. The Court of Appeal added that provided that the judge

indicates to the jury the two respects in which good character might be relevant, i.e. both credibility and propensity, in accordance with the guidelines set out above, it will be slow to criticise any qualifying remarks that he may make based on the facts of the individual case.

32. The guidelines given in Vye were approved by the House of Lords in R v Aziz [1996] 1 A.C. 41.

33. Vye and its rationale have been followed in Hong Kong. If a defendant places his good character in issue in any way, a judge when directing a jury is obliged to give a direction on both limbs, credibility and propensity.

34. How should a magistrate who sits alone approach this? There have been many views expressed in Hong Kong over recent years. In R v YU Piu-lai Criminal Appeal 347 of 1992, Bewley J said that a professional judge sitting without a jury is not required to give himself a direction as to good character.

35. In R v CHAN Wu-nam Criminal Appeal 274 of 1992, a case of handling stolen goods tried in the District Court, the Court of Appeal said:

"We are not to be taken as saying that it is incumbent upon a judge to give himself and to articulate what is called a 'Berrada direction' in each case. Suffice it to say that in this case because of the importance of credibility, the judge should have carefully dealt with the effect of the applicant's good character under both 'limbs' of Berrada as to its effect upon the applicant's credibility and as to the effect upon the proof of guilt."

The appeal was allowed.

36. In R v LAI Lam-hing, Magistracy Appeal 488 of 1993, Penlington J, sitting as a judge of the High Court, said:

"In my view, as was made clear by Mortimer J in CHAN Wu-nam a judge or magistrate sitting alone does not have to be seen to give himself a Berrada direction in each case but should do so where the central issue is the defendants integrity and credibility and I do not consider that YU Piu-lai is contrary to that view."

R v CHENG King-ho, Criminal Appeal 255 of 1993, was a case involving the question of whether the appellant was aware of the contents of the parcel found in his possession, which was found to contain dangerous drugs. At trial, the appellant had put his good character into evidence. MacDougall V.P. said:

"We wish to make it plain that it by no means follows that a failure by a judge in a jury trial to give Berrada or Vye direction in a case where a defendant has properly presented himself as a man of good character will result in this court automatically quashing conviction. In such a case this court will quash a conviction only if it comes to the conclusion that in all the circumstances it is unsafe or unsatisfactory.

We think that we should also indicate for future guidance that this court does not require a District Judge or a Magistrate to state in his or her Reasons for Verdict that he or she has given himself or herself a Berrada or Vye direction."

37. The Court of Appeal in R v FOK Tin-yau [1995] 2 HKC 450, was of the view that whether such a direction has to be given depends entirely upon the circumstances of each case. Power V.P., said:

"Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved."

38. In R v LIN Kae-tzong [1995] 1 HKCLR 1165, another appeal from the District Court of a case involving the handling of stolen goods, the Court of Appeal held that there was no rule that where evidence was led of a defendant's good character, a Berrada direction had to be given by a District Court judge or a magistrate. The court reiterated MacDougall V.P.'s words in CHENG King-ho and considered the decision of the Court of Appeal in CHAN Wu-nam peculiar to its own facts, holding that to be a case where the District Judge should have "carefully evaluated the applicant's age and previous good character in deciding whether the goods had been stolen." They considered that in CHAN Wu-nam the honesty and knowledge of the defendant was crucial.

39. In R v FONG Shun-yuen, Magistracy Appeal 1505 of 1994, the magistrate was aware of the appellant's good character but took that into account only in regard to his propensity to commit the offences. After reviewing various authorities, WONG J held that the magistrate had failed to give proper consideration to the issue.

40. Stock J, in R v Petrus Yau Pui Tak, Magistracy Appeal 777 of 1996, while recognising that in the absence of contrary indication one can assume that the judge or magistrate must have addressed the matter, did not regard FOK Tin-yau as saying that there need never be a reference to that issue.

41. In R v CHUNG Siu-ping, Magistracy Appeal 113 of 1997, LEONG J allowed an appeal where the magistrate had dealt adequately with the credibility limb of the direction but had not apparently addressed the propensity limb.

42. I do not claim that my review of these cases is exhaustive of all that has been said in Hong Kong on this subject, however, so far as can be distilled from these sometimes conflicting decisions, the principles appear to be these:

43. Firstly, that no formal words in self-direction are required.

44. Secondly, where the central issue at trial is the defendant's integrity and credibility, a Berrada/Vye direction, or words indicating an appreciation of both limbs of the direction, should be given.

45. Thirdly, if the magistrate makes no mention of the defendant's good character, then, unless the transcript and the magistrate's reasons for verdict show that he has misdirected himself, an appellate court will assume that he did direct himself and did do so properly.

46. Fourthly, if the magistrate has indicated that he took the defendant's good character into account, an appellate court will look at the transcript and at the statement of findings to see if he took both limbs of the Berrada/Vye direction or the Berrada direction into account; that is, both the limb relating to the defendant's credibility and the limb relating to the defendant's propensity. If only one limb appears to have been considered, then that may be a reason for the appellate court to conclude that there was a material irregularity at trial on the part of the magistrate and thus justify the allowing of the appeal.

47. In this case it is clear from the passages which have been identified in the transcript of proceedings and the statement of findings, that the learned magistrate was fully aware that the appellant was of good character. It is clear also that he addressed the issue of whether that good character went to propensity, that is whether or not that good character made it less likely that a woman of 41 of good character would commit such a crime as shoplifting than a woman of 41 of bad character. He was clearly of the view that to him this was an irrelevant consideration and he said so in very frank terms. As trier of fact he was entitled to come that conclusion, but only at the end of the case. It is regrettable that he foreshadowed that conclusion at the end of Father FAN's evidence. This gives the impression that he had pre-decided the issue of the appellant's good character and had decided it against her. This is exacerbated by the fact that Father FAN, because of pastoral commitments, was allowed to testify before the appellant gave evidence, thus the magistrate's remarks immediately preceded the appellant giving her evidence.

48. Nowhere in the transcript, or in his statement of findings, does the learned magistrate appear to have considered the effect that the appellant's good character had on her credibility. He gave reasons for disbelieving the appellant, but in doing that he did not, as he should have done, briefly refer to the fact that he was considering the evidence of a woman of good character and specifically find, as it was open to him to do, that her good character did not help her in supporting the truth of her evidence.

49. As the learned magistrate chose to deal with the effects of the appellant's good character, it was incumbent upon him to deal with it properly, and this he, regrettably, failed to do.

50. Had the learned magistrate not made his remark at the end of Father FAN's evidence, I might have held this failure was not fatal to the conviction. However, that remark indicates that the learned magistrate had already formed a view of the effect the appellant's character was going to have on him and that this was a view which he held, not in relation just to this case and this appellant, and the facts of this case, but generally.

51. I accept it may be in the vast number of cases that at the end of the day previous good character helps a defendant very little, but the evidence in each case should be considered with an open mind at the end of the evidence and counsel's submissions. Those remarks indicate that the learned magistrate closed his mind to this aspect of the appellant's case.

52. For these reasons, the conviction cannot be regarded as being safe and satisfactory. The appeal is allowed and the appellant's conviction is quashed. The order for her to pay a fine and to pay court costs is set aside.