HKSAR v. Wong Bing Kui

HCMA000789/1998

HCMA789/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 789 OF 1998

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Coram : Deputy Judge Lugar Mawson in Court

Date of hearing : 7 January 1999

Date of delivery of judgment : 10 February 1999

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J U D G M E N T

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1. On 10 July 1998, the Appellant appeared before Mr Niall Mitchell, Permanent Magistrate sitting at Tuen Mun Magistracy and pleaded not guilty to one count of theft - the theft of two women's brassieres on 21 May 1998. He was convicted after trial on 14 July and fined $2,000. He appeals his conviction, but not his sentence.

2. At the time of the trial the Appellant was of clear record. He is aged 31 and is an electrical contractor. At trial he was represented by Mr Philip Ross of Counsel.

3. Briefly the facts of the case are : Ng Chi Keung [PW1] and Chan Yuk Ming [PW2] are husband and wife. They live at No. 21, 2B Kat Hing Wai, Kam Tin, Pat Heung, Yuen Long, New Territories North. In the early hours of 21 May 1998, Mr Ng was at home watching television with his wife when he heard dogs barking outside his premises. He went to investigate and saw someone, later identified as the Appellant, taking two of his wife's bras from a hanger attached to the frame of an air-conditioner outside the door to the premises. Mr Ng went outside and shouted at the Appellant, who fled carrying the bras in his hands. The Appellant ran towards a car where Mr Ng caught him. Mr Ng pulled the Appellant out of the car and a struggle followed. Mr Ng managed to pull the Appellant back to the house. His wife was standing at the door, Mr Ng asked her to call the police, at which point the Appellant threw the two bras into the house, asked Mr Ng not to call the police, and said he would pay money. Later the police came and arrested the Appellant.

4. In his cautioned record of interview, which was produced by agreement at trial, the Appellant told the police he had driven a friend back to Kam Tin. On his way home he stopped his car in order to urinate. After doing that he had seen the two bras and, out of curiosity, had taken them to look at them. While he was doing so a man came out and shouted at him. Being frightened, he ran away, while running he dropped the bras outside the door to the premises.

5. The Appellant elected to give evidence. He said that after dropping off his friend he had stopped to urinate. On his way back to the car he saw the two bras hanging outside the house. Drawn by their colour and their design, he had gone to look at them to see what brand they were so that he could either buy a similar bra for his girlfriend as a gift, or ask her to buy that brand to wear. He said he took them down from the hanger and whilst looking at them, he heard a voice shout out "don't go!". He also heard dogs barking, so he put the bras down and returned to his car. At his car Mr Ng had grabbed hold of him, pulled him to a fence and assaulted him, causing his glasses to fall off. He said he received injuries to his eye as a result. He alleged that Mr Ng had been very fierce and had asked him where he came from, and had asked his wife to get a knife, and threatened to kill him. At this juncture he said he was so scared about what would happen to him that he offered money. He denied intending to keep the bras.

6. In cross-examination he said that it was the colour and pattern of the bras which had attracted him to them, because he had not seen bras of such a colour and pattern before. He intended to look at the label, but before getting the chance to do so, heard the shout and the dogs barking. He claimed that he did not know that it was improper at that hour to look at someone else's bras.

7. At trial, the prosecutor wrongly advised Mr Ross that Madam Chan had previous criminal convictions. It is accepted that this was done inadvertently and was not a deliberate misstatement by the prosecution. The case for the Appellant was advanced on that basis until almost the close of prosecution's case. At that stage, Mr Ross was informed that it was in fact Mr Ng who had had previous convictions for fighting in a public place, perverting the course of justice and blackmail. Mr Ross applied to recall both Mr Ng and Madam Chan to further cross-examine them. Mr Mitchell granted the application to recall Mr Ng, but refused the application to recall Madam Chan.

8. In his first ground of appeal, Mr Jerome Matthews, the Appellant's Counsel at this appeal, argues that the refusal amounted to a material irregularity in the course of the trial. He says it prevented the Appellant, through his Counsel, from putting his case in the strongest possible light in a trial where the issue of the credibility of all of the witnesses was paramount. As I understand it, it was Mr Ross' intention to ask Mr Ng whether he was a triad member and to ask Madam Chan whether or not she was aware of her husband's convictions, and his alleged triad affiliation. When asked about it, Mr Ng, not surprisingly, denied any triad affiliation, after some prevarication, he admitted his previous convictions.

9. I cannot agree with Mr Matthews on this ground. He accepts that the prosecution's mistake was not deliberate. The previous convictions were put to Mr Ng, the man who had had them, and as I have said he, after some initial reluctance, admitted them. At the end of the prosecution case, Mr Mitchell was therefore in no doubt that Mr Ng was of previous bad character. I do not see how it would have helped him to know whether or not Madam Chan was aware of them, or of her husband's alleged trial connection. A magistrate, like any judge, has a duty to cut down on unnecessary cross-examination, Mr Mitchell very properly did that in this case.

10. In his second ground of appeal, Mr Matthews says that Mr Mitchell, when considering the prosecution evidence, failed to consider the inherent improbabilities contained in it. Particularly, the improbability of Mr Ng's claim in cross-examination that he had never spoken about the theft of the bras with Madam Chan, his wife, with whom he lived, at any time prior to trial.

11. The short answer to this ground is that a Magistrate is not duty bound to set down in his Statement of Findings precisely what evidence he accepts and what evidence he rejects, and what weight he attaches to every piece of evidence, or the arguments of Counsel on the evidence, or indeed the whole workings of his mind in arriving at his conclusions. Robert Eli Lowe [1961] HKLR 13 and Chan King Man & Others [1980] HKLR 105 are but two examples of authority for that proposition.

12. The third ground of appeal was that Mr Mitchell erred in rejecting the evidence of the Appellant before considering the reliability and credibility of the prosecution witnesses. Another Counsel drew the grounds, clearly, this one is misconceived and Mr Matthews, quite rightly, did not argue it.

13. This was a simple case, Mr Mitchell was well aware of Mr Ng's previous convictions and was well aware that Mr Ng and Madam Chan's credibility had been attacked and put in issue. Under our system of justice, the best person to resolve issues of credibility is the trial Magistrate. From his Statement of Findings, it is quite clear the Mr Mitchell understood the evidence given before him and applied it correctly. In particular, he directed himself of the need to treat Mr Ng's evidence with caution in view of the fact that he had a criminal record, which included convictions for blackmail and perverting the course of justice. He reminded himself that the Appellant was of clear record and that this was to be given full weight in relation to both his credibility and propensity to commit crimes, the accepted Berrada [1990] 91 Cr App R 131 direction. He was aware, and he demonstrated so in his Statement of Findings, that even though he disbelieved the Appellant, the burden still lay on the prosecution to prove the Appellant's guilt on the charge.

14. Further, Mr Mitchell had the advantage, which I do not have, of having seen and heard the witnesses, including the Appellant, give evidence. There is nothing in his Statement of Findings that indicates his approach to the evidence, or the case, was in any way wrong. It is not for me to substitute any view I may have on reading the appeal bundle for his view on the veracity of the witnesses.

15. I am satisfied that Mr Mitchell's conviction of the Appellant is unassailable on appeal. The Appellant's appeal is dismissed.

Representation:

Miss Catherine Ko, G.C., for HKSAR

Mr Jerome Matthews, inst'd by M/s Lee & Co., for the Appellant