Lun Wai Choi v. The Queen

CACC000145/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 145 OF 1980

-----------------

-----------------

Coram: Addison, J.

Date of Judgment: 12 March 1980

-----------------

JUDGMENT

-----------------

1. This is an appeal against conviction for theft.

2. The complainant, a married woman with four children was going upstairs to her home in Choi Hung Estate when someone came up behind her and snatched her necklace. She cried out "Snatching" and then saw someone chase the thief. She did not pursue the thief as she had her children with her. Her cries were heard by Kwong Yuen Cheung, who lives in the same block and who was also ascending the stairs at that time. He gave evidence that he saw the victim who pointed out the thief to him. He gave chase. The thief then began to run but fell down after having gone a distance of 50 metres. He then got up and resumed his flight. Mr. Kwong pursued the thief into the street where he again fell down. This time he caught the thief. At that moment an auxilliary police officer, who was then off-duty and who had witnessed the pursuit in the street, came up and arrested the appellant. The victim was fetched to the scene of the appellant's arrest and she confirmed the appellant was the thief. Her necklace was not recovered.

3. There were some discrepancies in the evidence for the prosecution. The complainant said Mr. Kwong was higher up the stairs than she had been. She said the thief ran downstairs after snatching her necklace. Mr. Kwong said he first saw the appellant walk past him which would mean, of course, he was below the complainant on the staircase.

4. The appellant gave evidence in his defence. He claimed he was walking past Choi Hung Estate when Mr. Kwong came up to him and for no apparent reason grabbed hold of him. He denied stealing the necklace.

5. The learned magistrate did not believe the appellant. He accepted the evidence of the auxilliary police officer who said he had seen the appellant running along the road when being pursued by Mr. Kwong. He was aware of the discrepancy in the evidence relating to the position of Mr. Kwong on the staircase but accepted the fact that the victim had pointed out the thief to him before he began to give chase. He convicted the appellant.

6. There was ample evidence to sustain the conviction and I cannot say the learned magistrate was wrong in reaching the conclusion he did.

7. The record kept by the learned magistrate is a model in clarity. Without derogating from that remark in any way, the record does show that the learned magistrate was apprised of the fact the appellant had previous convictions prior to his hearing the case. This arose at the appellant's earlier appearance in court when he sought bail. That application was opposed by the prosecutor who informed the learned magistrate that the appellant had four previous convictions. From the antecedent record those convictions were for offences involving dishonesty. Notwithstanding this knowledge the learned magistrate subsequently heard the case.

8. I have given consideration as to whether I should set aside the conviction on this ground.

9. A similar matter arose for consideration in the case of Yu Tit-shing & ors. v. R. (Criminal Appeal 695/71, Full Court) It went unreported though, in my opinion, it deserves reporting in the law reports.

10. In that appeal, Huggins, J. (as he then was) said:

"But the first point which is taken on the appeal is that on 5th August, some time before the trial took place, the 1st appellant applied for bail pending the trial and that in the course of hearing that application the learned judge was informed of the appellant's previous criminal record. The case came on for trial before the same learned judge and the 1st appellant objected to his trying the case on the ground of possible bias. The learned judge rejected the suggestion that another judge should try the case, commenting that although he did know that there was a previous criminal record he could not remember the details. In our view there is no substance in this ground of appeal. It not uncommonly happens that in the course of a trial inadmissible evidence is put before the court. Where this happens the judge has to decide whether it is right so proceed with the trial or whether a fresh trial must be ordered. It has commonly been thought that different considerations apply when there is a trial by jury and when there is a trial by a professional judge. Whether that be right or not, in the present case the learned judge was satisfied that he could proceed with-out bias and we see no reason to think that he wrongly exercised his discretion. We say only that it is, as no doubt the learned judge in this case realised, desirable where it can conveniently be arranged that a judge who has been informed of a previous criminal record on an application for bail should not try the case subsequently. However, we think that the mere fact that a judge has heard an application for bail in such circumstances is not an absolute bar to his trying the case."

11. The circumstances of this case were such that proof of the appellant's guilt did not rest on any inference being drawn by the learned magistrate as to guilty knowledge on the part of the accused. Guilt here depended on whether the magistrate accepted the identification evidence in circum-stances where the appellant was caught almost red handed.

12. It would have been better had the learned magistrate not heard the trial but there is nothing to suggest he allowed his knowledge of the accused's previous convictions to sway him in reaching his verdict. Accordingly, following the decision of the Full Court in the case cited above, the appeal against conviction is dismissed.

Representation:

Mr. Alderdice, Counsel for Crown

Appellant in person