The Queen v. Yeung Kwong-shing

CACC001415/1983

IN THE HIGH COURT

1983 No. 1415

(Criminal)

BETWEEN

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Coram: Deputy Judge Souyave

Date: 20th December, 1983

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JUDGMENT

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1. The appellant was convicted by the Magistrate's Court after a trial of the offence of theft, the particulars thereof being that on the 7th September 1983 at H.Y.F. Company Trading Services Co. Ltd., a supermarket at Jubilee street Ferry Pier, Central, he stole one carton of cigarettes, valued at Hk$57, the property of the said company. He was sentenced to pay  a fine of HK$500. He was not legally represented at the trial.

2. He appealed against his conviction.

3. At the trial, the prosecution evidence was that at the material time the appellant was seen by PW1, an Assistant Supervisor of the supermarket, taking a carton of Marlboro cigarettes from the cigarette shelf therein, tucking it inside his waist in such a way that it was covered by his shirt, passing the cashier without paying for it, and that on his being intercepted outside the entrance of the supermarket by PW1 and asked to take out the carton of cigarettes, he replied "O.K. I'11 take it out" and thereupon, on his handing over the carton to PW1, he suddenly elbowed PW1. The prosecution evidence went on to state that at that stage, PW2, another staff of the supermarket, who had already been alerted by PW1, intervened and attempted to hold the appellant, that the appellant threw the carton to near the entrance and ran away, that chased after by PW1 and PW2 the appellant fell down and was then caught by the police who happened to arrive at that moment while a struggle was going on between PW1, PW2 and the appellant. The prosecution case rested mainly on the evidence of PW1 and PW2.

4. The appellant elected to give evidence. His defence was that, although he was at one stage in the supermarket he did not buy any goods for the reason that, seeing that his ferry was coming and was in a hurry to catch it, he left the soft drink, which he had taken and intended to buy, at the cashier counter. He stated that he had to push away the customers to one side to get through, that he was intercepted between the cashier and the entrance by PW1 and PW2 who struck him, that the struggle with them extended to the entrance outside the supermarket, during the course of which he was injured, that the struggle continued until the police arrived, that because of his being ill-treated in that way by the staff of the supermarket, he asked to see the Manager, and in the Manager's office the staff said he had stolen a carton of cigarettes, and thereupon one member of the staff instructed another to bring along a carton of cigarettes to the police officer. In short, his defence was that he did not take or steal any carton of cigarettes, that when he was hurrying to leave the supermarket to catch the ferry he was intercepted inside the supermarket premises between the cashier and the entrance and assaulted by the staff of the supermarket for no good reason and that at that time he had no carton of cigarettes with him, that the carton of cigarettes was brought into the Manager's office and handed over to police only after the incident.

5. Because of the appellant's defence, the police officer, who came on the scene, was called by the learned Magistrate, with the agreement of the appellant, to give evidence. The evidence of that police officer, namely PC 2656, was interposed by the learned Magistrate at the close of the of evidence in chief of the appellant, and the cross examination of the appellant by the prosecution followed after PC 2656 had given evidence.

6. That was all the evidence before the Court below. The learned Magistrate found that PC 2656's evidence did not tend to support the appellant's evidence and accordingly he decided not to take any account of it one way or the other since that witness was called for the appellant by him and he felt he could only use that evidence if it was favourable to the appellant. The learned Magistrate accepted the evidence of PW1 and PW2 and rejected that of the appellant as being a pack of lies, and convicted the appellant on the charge.

7. The grounds of appeal were those contained in the Notice of Appeal, namely that "There was no evidence, or no sufficient evidence whereon to found the said conviction" and the additional grounds prepared by the appellant's solicitors. At the hearing of the appeal, Mr. Owen, solicitor, represented the appellant.

8. It is unnecessary to set out all the additional grounds but I will deal with them in the course of what I am to state hereafter.

9. First, I will deal with the complaints that certain errors were made by the learned Magistrate in the conduct of the trial.

10. I agreed that the learned Magistrate committed a procedural irregularity in interposing the evidence of PW 2656 at the end of the examination in chief of the appellant. The record of the case does not disclose why he did so. I was not to speculate why he did so, but looking at the notes of the proceedings I was not disposed to take the view that he did so for improper motive, nor was it suggested on behalf of the appellant that was the case. In following that irregular procedure, the appellant was in my view at an advantage to know what PC 2656 was to say and the appellant could later in cross-examination or in re-examination say what he intended to say in his defence bearing in mind what PC 2656 had said. The course so adopted by the learned Magistrate was not a fundamental irregularity, and on the whole of the evidence I was satisfied that no injustice or prejudice was thereby caused to the appellant. Grounds 1(i) and (ii) of the Additional Grounds of Appeal failed.

11. It was alleged in Ground 1(iii) of the Additional Grounds that the learned Magistrate committed an, irregularity "by failing to inform the appellant of his right to call witnesses". I agreed that there was no specific mention in the notes of the proceedings that the appellant was so informed. However, there appeared therein the following "Defendant elects to give evidence after rights explained to him". The case was tried by a qualified and experienced Magistrate and in my view the use of the word "rights" in plural showed to my satisfaction that what was told to the appellant was both his right to give or not to give evidence and his right to call witnesses or evidence. In any event, in that ground of appeal - i.e. Ground l(iii), the appellant did not further allege that because' o?that failure oh the part of the Magistrate he failed to call evidence or witnesses which he would otherwise have called. Furthermore, Mr. Owen for the appellant, very properly and candidly informed me that that was a technical point raised. In my view, in the circumstances, ho prejudice or injustice could have been caused to the appellant even if there had been an omission oh the part of the learned Magistrate to inform the appellant of that right. Ground 1(iii) failed.

12. At the close of the defence case, the appellant, as the notes of the proceedings disclosed, was asked by the learned Magistrate if he had anything further to say to which he replied "Nothing to say". In my view, that was an invitation to the appellant to add and say anything he wished to say at that stage, including any observation or comment oh the case. That was tantamount to inviting him to address the Court.   Hence, I also saw ho merit in the complaint in Ground 1(iv) that the unrepresented appellant was hot informed of his right to address the Court. In any event, in all the circumstances, any such failure oh the part of the learned Magistrate could hot have caused any prejudice or injustice to the appellant.

13. Ground (1(v) was that the learned Magistrate erred "by failing to assist the unrepresented appellant in presenting his case in the crossexamination of the prosecution witnesses". I was referred to Yuen Yukin v. R. - Criminal Appeal 807/79.  In delivering judgment in that appeal, where (inter alia) that same point was raised, Cons J.  (as he then was), after referring to Reg. v. Wong Hing (unreported Criminal Appeal 1979 No. 193) in which Trainor J. said :

"But where an accused is unrepresented the burden of seeing that justice is done is heavier oh the trial judge. He must ensure that the accused understands the charge that he faces and help, him make his defence if he feels that the accused is unable to do so.  An example of what I mean arises if an accused when afforded the opportunity to cross-examine a witness persists in making a statement. In such a case, in my opinion the bench should, if possible, formulate a question out of the statement and put it to the witness."

went on to say:

"With respect to counsel there is nothing in the record to indicate that, the learned Magistrate did not in fact do as is there suggested. In my view he is not required to do more. He is bound to ensure that an unrepresented defendant has a fair trial. Subject to that it is a wise magistrate who interferes as little as possible with the course of proceedings before him. His good intentions are as likely to hinder as to help the defendant in his defence."

14. There was nothing in the record to indicate that the learned Magistrate did not in fact in the trial do as were suggested in Reg. v. Wong Hing and Yuen Yukin v. Re., referred above. In my view, the learned Magistrate was very watchful of the interest of the appellant all throughout the trial and was an to assist him in making or presenting his defence. The fair attitude and good intentions of the learned Magistrate are for example reflected when after hearing what the appellant had said in his examination in chief in his defence he decided to assist him by suggesting that PC 2656 could be called by him with the appellant's consent and the appellant agreed to that course. When the learned Magistrate, in his opinion ,found that PC 2656 did not tend to support the appellant's contention, he thought it fair not to take it into account one way or the other. Ground 1(v) also failed.

15. One of the main allegations of the appellant was that when he was intercepted by PW1 and PW2, there was no carton of cigarettes at all in his possession and that a carton of cigarettes was only brought along after he had been stopped by the police and had been brought into the Manager's office. He agreed to the suggestion of the learned Magistrate that PC 2656 be called to support his evidence or in any event to clarify that situation. PC 2656's evidence was that when he arrived he saw PW1 and PW2 - not 4 persons as alleged by the appellant at one stage in his cross-examination- pressing the appellant down on the ground right outside the supermarket, mentioning about 25 yards outside from entrance, that PW1 then informed him that he saw the appellant steal a carton of cigarettes from the supermarket earlier and that was why he, PW1, had chased after the appellant. PC 2656 went on to testify that there was a big crowd outside and he took all into the supermarket, and that it was after entry that the appellant said he did not steal a carton of cigarettes. PC 2656 said that the carton of cigarettes was handed to one inside the supermarket and did not see the cigarettes outside. He further said that the appellant made no reply when he asked him how he came to his injury - which was a slight redness and swelling on the left side of his lip and on his left eye, and that the appellant made no complaint at all at the scene of the incident of having been assaulted and that it was after return to police station that the appellant requested medical treatment. True it was that, according to the evidence, PC 2656 did not see the carton of cigarettes outside the supermarket but bearing in mind the crowd and confusion outside and the evidence of PW2 that the appellant had thrown away the carton on the ground to near the entrance, PC 2656 might not have seen it there. Looking at PC 2656's evidence, I thought the learned Magistrate was quite entitled to conclude that it did not tend to support the appellant's allegation and that, on the contrary, it tended to support the evidence of P141 and PW2. I therefore saw no substance in the appellant's contention that PC 2656's evidence was corroborative of material aspects of his evidence. Looking at the evidence of the appellant, I was also satisfied that the learned Magistrate correctly found that "the Defendant alleged the police officer came into the scene during the beating". Grounds 2 and 3 failed.

16. I did not agree that the learned Magistrate determined the issue of guilt of the appellant upon a preference of conflicting stories. The words "beyond any reasonable doubt" or words to that effect do not appear in the decision or Statement of Findings of the learned Magistrate. On a full consideration of all the evidence, and for the reasons which he gave, the learned Magistrate was quite entitled to accept the prosecution evidence of PW1 and PW2 and to reject that of the appellant as being untrue. It was purely a matter of credibility and I could not interpret anything in his decision and Statement of Findings as stating or revealing that he preferred the prosecution evidence to that of the appellant. On the whole of the evidence, he was clearly satisfied that both P411 and PW2 had told the truth and that the appellant had told lies. On the prosecution evidence he accepted as true, he was obviously satisfied beyond any reasonable doubt of the guilt of the appellant. I would add that this trial was presided by a qualified and experienced Magistrate and I presumed, unless otherwise indicated or proved, that he was quite aware of the burden and standard of proof in a criminal case.

17. I saw no merit in any of the grounds of appeal. There was ample evidence to support the conviction. This appeal against conviction was dismissed.

Representation:

Mr. N. Owen of Messrs. Hampton, Winter & Glynn for Appellant.

Mr. A.R Duckett, Crown Counsel for Crown.