R. v. CHUNG SIU PING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 113 OF 1997

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J U D G M E N T

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1. The appellant was convicted of theft on 24^th December 1996 and was fined $1,000 and ordered to pay costs of $800.

2. The evidence was the appellant was seen by a security officer of Yaohan Department Store in the shampoo aisle picking up goods and looking at them. The officer saw her pick up a bottle of shampoo and put it in a bag she was carrying. She then saw her walk through the cashier counter. The officer then followed her and stopped her. He told her that there was something in her bag she had not paid for. The appellant did not say anything but she showed the officer her bag. Inside her bag, a bottle of shampoo was found. The officer said there were children around her at the time but the officer was not clear if they were the children of the appellant.

3. The police was summoned and the evidence of the police officer was when he arrested the appellant for theft, the appellant told him it was just a misunderstanding.

4. The appellant said she was a housewife with no previous convictions. She told the magistrate that on that day she went to the store with her children. After she had been to other parts of the store and bought a cleaning cloth and some noodles etc, she finally arrived at the shampoo aisle with her children. She picked up a bottle of shampoo to look at. There was another woman with a boy. This woman gave a bottle of shampoo to the boy to find out if it was on special price. Thereafter they then left. Then her youngest child wanted to take off his clothes. After that she decided to go home and she went to the counter and paid for the noodles etc. She was then stopped by the security officer. She told her she must be joking and opened her bag for her to inspect. The appellant said she then saw the bottle of shampoo inside the bag. The receipt for the cleaning cloth was produced in evidence.

5. It was an admitted fact that the appellant had a clear record and when she was arrested she had $607.90 on her person.

6. The magistrate in his reasons for verdict at the end of the trial said that he accepted the evidence of the security officer. He further said this :

"... Now, what you said in court was to the effect that you didn't know how that bottle of shampoo managed to get inside your bag. Of course, you guessed - you hazarded a guess in saying that it might be you were holding the bottle of shampoo at the time when you had to help your younger son to undress.

Well, on this point alone I found it suspicious, because, for a start, you never said that you wanted to buy shampoo. At least at the point where you passed by the aisle displaying shampoo, you were about to leave because your son complained of being bored inside. Of course, when I'm assessing your credibility, I bear in mind the fact that you had a clear record, and that is definitely something to your advantage, because it has been accepted that people who have a clear record were less prone to lie in court..."

7. Later, the magistrate said "Having seen you in court and assessed your credibility accordingly, I found myself unable to accept what you said."

8. The major ground of appeal is this :

"The Learned Magistrate erred in law by making no mention of the application of the appellant's good character to her propensity to commit a crime of dishonesty, and by implication in confining its relevance and application to her credibility in court."

9. Mr Macrae referred to a number of authorities on whether a magistrate sitting alone is required to be seen to have directed himself to both limbs of the Berrada direction. In R.v. Lai Lam Hing Mag. App.488/93, Penlington J.A. said this in his decision :

"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 Pui Lai is contrary to that view."

10. It should be noted that in R.v. Yu Pui Lai Crim. App.347/92 Bewley J. said that a professional judge sitting without a jury is not required to do so (namely to give himself a direction as to good character.)

11. On this issue, the Court of Appeal in R.v. Lai Hon Man Crim. App. 421/92 had this to say :

"The second ground of appeal is that the Judge failed to give any direction on good character. The applicant led evidence that he was a person age 21, at trial, and had a clear record. Nowhere does the Judge mention this. It is incumbent on the Judge to give the standard direction on good character. Since R. v. Berrada [1989] 91 Cr. App. R131 it became common for trial judges in England to give a direction not only as to good character being relevant to credibility, where a defendant has testified or made pre-trial answers or statements, but also as to the likelihood of his having committed the offence. However, many judges omitted the second limb of the Berrada direction. In R. v. Vye & ors [1993] 1 WLR 471 the English Court of Appeal has decided that both limbs - credibility and propensity - of the direction should be given.

It is not necessary for this Court to come to a similar decision, but it is strongly advisable for the 'second limb' direction to be given for persons of good character in cases where the propensity to commit a crime is obviously relevant, for example a 40 year old man charged with theft or a sexual."

12. In R. v. Chan Wu Nam Crim. App.274/92, a case of handling stolen goods tried in the District Court, the Court of Appeal on the requirement of a Barrada direction also 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 'Barrada 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 Barrada - as to its effect upon the applicant's credibility and as to the effect upon the proof of guilty."

13. The Court of Appeal inR. v. Fok Tin Yau Crim. App. 305/94 considered the above authorities and was of the view that whether such a direction has to be given depends entirely upon the circumstances of each case and Power VP 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."

14. Stock J. in R. v. Petrus Yau Pui Tak Mag. App.777/96, while recognising that in the absence of contrary indication, one can assume that the judge or magistrate must have addressed the matter, however, did not regard Fok Tin Yau as saying that there needs never to be a reference to the issue.

15. The final case referred to by Mr Macrae is R. v. Fong Shun Yuen Mag. App.1505/94. In that case, the magistrate was aware of the appellant's good character but he took that into account only in regard to his propensity to commit the offences. Having reviewed the authorities, Wong J. held that the magistrate had failed to give a proper consideration to the issue.

16. The present case is very much dependant on the appellant's integrity and credibility. The appellant is a houswife of 40 with children and the security officer of the department store accepted at the time there were children around her at the shampoo aisle. The evidence accepted by the magistrate was that the appellant when stopped by the security officer and told she had something in the bag which she did not pay for, at once opened the bag for inspection. There was evidence accepted by the magistrate that she told the police officer it was a misunderstanding. It is a case where having regard to her good character, the magistrate should have also considered whether she was a person who would be unlikely to commit the offence. The magistrate only considered her likelihood of telling lies in court as the magistrate stated in his reasons for verdict given in court. He had not given sufficient consideration to the good character of the appellant. For these reasons, the conviction cannot be regarded as safe and satisfactory. The conviction is quashed and the sentence set aside.