Cheung Pui Chuen v. The Queen

CACC000250/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.250 OF 1972

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Coram: Huggins, J.

Date of Judgment: 26th May 1972.

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JUDGMENT

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1. The Appellant was charged before the magistrate's court with the theft of seventy cents, convicted and sentenced to a fine of $100. He appeals against conviction.

2. Considering the evidence which was adduced at the trial I cannot but express surprise that it was ever thought proper to institute a prosecution. The Appellant is a bus conductor and the subject matter of the alleged offence was the change said to have been due to a passenger in his bus who claimed to have paid $1 for a 30-cent fare. Indeed, it seems to me unlikely that a prosecution would have been instituted had the passenger not been a sergeant of police. The bus was one of those developed by our supposedly enlightened and undoubtedly overcrowded society to enable the entire complement of 85 passengers for which the bus is licensed to purchase its tickets from one conductor. Provided that the number and distribution of those on board the bus when a passenger enters impose no physical compulsion this arrangement gives the passenger the added privilege of paying for his journey at whatever stage of it he chooses. The sergeant in the present case elected to remain in the rear of the bus where he boarded, because he saw a crowd at the receipt of custom. When the crowd cleared he got up to buy a ticket. He was adamant, and he was believed by the learned magistrate, that he paid with a $1 coin. He said that he received a ticket but no change and then

"In order not to prevent others from buying ticket, I saw on the conductor's left there was an empty seat. I sat down. In the meantime stretching out my hand to get change". (sic)

Subsequently, however, he said that after passing the conductor there was "a brief interval" before he found a seat and he admitted that "the others" whom he was seeking not to impede consisted of one woman only. He said that he demanded change and that an argument ensued in the course of which he threatened the Appellant that if he did not give him seventy cents he would regret it, while the Appellant replied that he had already given the change. The only other witness for the Prosecution appears to have gone to the bus terminus to ascertain whether the money handed in by the Appellant tallied with the tickets sold, but the notes of evidence do not indicate what was the result of those enquiries. However, the Appellant himself called the bus company's inspector, who stated that the money was correct.

3. The Appellant's story was that some time had elapsed between the time when the sergeant paid his fare and the time he asked for change and that there was one seat between the sergeant and himself. He said he suggested that the sergeant (of whose identity he was not then aware) was mistaken but that the sergeant became abusive. The Appellant went on to say that after thinking the matter over he said he was very clear he had not received one dollar from the sergeant. He has consistently maintained that he did not steal, though he is (not surprisingly if he is innocent) unable to recall with certainty whether the sergeant paid one dollar and was given change or paid only the correct fare. There was evidence of his good character during seven years with the Kowloon Motor Bus Company.

4. The record before this court, which was certified as correct by the learned magistrate, shows him as having said in his judgment "this case depends entirely upon the audibility of P.W.1". I think I should assume that this is an error, although it is a particularly unfortunate error in a case of this kind. What is more significant, however, is that in his Statement of Findings the learned magistrate, having found that the sergeant had paid one dollar, that seventy cents change had not been paid and "that the 70 cents was deliberately and dishonestly retained by the appellant", continued:

"          The reasons for my finding arise from the fact that I accepted entirely the evidence of the police Sergeant. Once this evidence was accepted the remaining ingredients were, in my view, necessarily found, and the only possible inference was that the defendant was guilty of theft. I was therefore satisfied beyond reasonable doubt that the defendant was guilty of theft."

With respect, that was clearly not right and it is apparent from what he subsequently said that the learned magistrate appreciated it could not be right. There were various possibilities in this case-

5. The last of these possibilities can, as the learned magistrate later said, be rejected because the takings would not then have tallied with the tickets sold.

6. The third possibility was rejected by the learned magistrate because he was satisfied that the sergeant was a truthful witness and I do not think that on an appeal by way of re-hearing on the record I could properly interfere with that conclusion, even if I were to have doubts in my own mind, for my doubts could not be based on anything as substantial as the certainty of the learned magistrate, who had the advantage of seeing and hearing the witnesses. The law provides that the magistrate shall be the judge of the facts and it is not the function of this court to make its own findings. One may occasionally wish that appeals which are essentially against findings of fact were by way of hearing de novo, as are appeals from stipendiary magistrates in England, but that is not the law and the judges must apply the law as they find it.

7. The passage which I have cited from the Statement of Findings does not allow for the possibility that the sergeant, although a truthful witness, was mistaken. That is not to say that the learned magistrate did not advert to the possibility at all, for he later said

"There is a possibility - which was adverted to only in a passage in the defendant's evidence in cross-examination - that the sergeant had been confused and in fact given 30 cents - and thought he gave a dollar. I considered that possibility but rejected it as inconsistent with the complainant's evidence and admitted actions; and also inconsistent with the evidence of the defendant of the occurrence - had this been the case one would have expected him to retort immediately, 'But you gave me 30 cents'. This possibility I therefore considered did not amount to one requiring the benefit of a doubt."

(By "the conplainant" he must have meant not the person incorrectly described as "Complainant" instead of "Informant" on the charge sheet, but the sergeant). The possibility of a mistake on the part of the sergeant was in truth inconsistent with his own evidence, but it was wrong to say that it was "also inconsistent with the evidence of the defendant of the occurrence": the Appellant clearly indicated that at first he was not sure whether the sergeant had paid one dollar or thirty cents but that after thinking about it he decided the sergeant had been mistaken in alleging that he had paid one dollar. If he was uncertain, as well he might have been unless one assumes the guilt which is in issue, it would be wrong to expect him "to retort immediately, 'but you gave me thirty cents'": there was a time when even the majority would expect someone in the position of the Appellant to assume, at least initially, that "the customer is always right".

8. Having regard to the initial misdirection (subsequently corrected) as to the effect of accepting the sergeant's evidence, to the later misdirection as to the effect of the Appellant's own evidence and to the whole nature of the evidence, I have come to the very definite conclusion that it is not safe to allow this conviction to stand. The appeal is allowed, the conviction quashed and the sentence set aside.

26th May 1972.

Representation: