Arthur Charles Griffin v. The Crown

CACC000002/1946

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL No.2 of 1946

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Coram: Sd. E.H.Williams, Acting Chief Justice

Date of Judgment: 17 June 1946

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JUDGMENT

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1. This is an appeal from a decision of a Magistrate by which Appellant was convicted of the larceny of a typewriter on or about 15th January on board M.V. "Kaipaki" and was sentenced to 3 months imprisonment.

2. The grounds of appeal were (1) conviction against the weight of the evidence (2) conviction wrong in law and (3) misdirection as to onus of proof and benefit of the doubt.

3. Reliance in support of these grounds was placed mainly on paragraphs 1 and 2 of the Finding of the Magistrate. He was urged that as the typewriter was for a time left openly in the mess-room, although be might not believe the defendant, he should not convict because Appellant's conduct must be regarded as being also consistent with innocence. He said "I cannot agree with this proposition. The point is whether, on the evidence before me, I have any doubt as to the guilt of the defendant. My answer is not". Then he went on to state that the conduct of the defendant was consistent only with guilt and not with innocence.

4. It must be remembered that in a case such as this where there is no jury the Magistrate does not give a review of the whole evidence and state the whole law applicable to such a case. This finding is often set out in the briefest terms.

5. I do not consider that the Magistrate has misdirected himself by what is set out in the be ginning of the findings, particularly, when regard is paid to the latter part of them. It is clear that he has given weight to the fact that there was a display of the type-writer in the mess-room but he was unable to find that as a whole the conduct of Appellant was consistent equally with innocence as with guilt. There were other factors which in the view of the Magistrate weighed heavily against Appellant viz. the finding of the typewriter in the centre of Appellant's sea-bag (2) the ample time Appellant had for handing the typewriter over to the Chief Officer (3) the absence of explanation of his conduct though he had ample opportunity to do so.

6. It was strongly urged on me here as upon the Magistrate that Appellant's conduct in allowing the typewriter to be displayed negatived intent to steal but I agree with the Magistrate that the whole of the evidence must be looked at. The factor of open display is a point in Appellant's favour but it is upon the review of the whole of the circumstances of the case that a decision must be reached. On that review the Magistrate decided that Appellant was guilty.

7. Admittedly, no direct reference is made to the onus of proof or to the intent necessary to be proved but I am satisfied that the Magistrate had both points in view in coming to his decision. As I have said he was not addressing a jury where such points would, of course, require to be stressed.

8. On the ground that the conviction was against the weight of the evidence, I am satisfied that I am not justified in finding that the evidence is insufficient reasonably to sustain the verdict of guilty. Unless so justified I should not quash the conviction on these grounds.

9. One further point was mentioned before me but not stated in the grounds of appeal. It was to the effect that certain questions had been put to Appellant suggesting that his character as a seaman was not good. Fortunately, on protest by his Solicitor, these questions were dropped. There was no justification for them being put and the case of Rex v. Sheridan which was quoted before me cannot support such questions being put. In England the justices are required in certain cases to make preliminary inquiry into previous convictions but that is not so here. Had I any reason to believe the Magistrate was influenced by the answers given, I might have quashed the conviction. In point of fact the answers were in no way damaging - admissions of absence without leave and refusal to perform certain duties.

10. I therefore dismiss the appeal.

11. Conviction and sentence upheld.

12. Sentence to run from date of conviction.