HKSAR v. But Kam Hung

HCMA000314/2002

HCMA 314/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 314 OF 2002

(ON APPEAL FROM ESCC 169/2002)

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Coram: Deputy High Court Judge Wong in Court

Dates of Hearing: 29 October 2002

Date of Judgment: 28 November 2002

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J U D G M E N T

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1.The appellant was convicted after trial before a magistrate of a charge of theft, commonly known as "shoplifting". He was bound over for 12 months and ordered to pay $1,000 costs. He appeals against conviction.

2.The prosecution called three witnesses and they were a store detective who saw the theft, the manager and a police officer who arrested the appellant. Briefly, the prosecution case was that the appellant and his wife were in the Pricerite Store, Wanchai. The store detective saw him pick up a pair of shelf supports and tuck under his trousers before leaving the store. He was apprehended, taken to the manager's office and subsequently arrested.

3.Both the appellant and his wife gave evidence. They said that they went to the store to look for chairs. They bought one chair and were given concessionary coupons worth $20. As they wanted to make use of the coupons, they started looking for something of small value. The price of the self supports was $30 and with the coupons they only had to pay $10. The appellant admitted that he did pick up the shelf supports but later put them back because he was not sure if his wife would like them or not. The wife said that she liked the shelf supports and picked them up herself with the intention of buying them with the coupons and an additional $10. The appellant said that he walked out of the store and waited for his wife to redeem the coupons at the redemption counter which was outside the shop. The wife said that she was holding the shelf supports in her hand when she went out to meet her husband. When the wife was redeeming the concessionary coupons the store detective approached the appellant and asked him if he had something that he had not paid for. The appellant's armpits were searched and nothing was found. The store detective told them that they had to go back inside the store to complete some procedures. There was exchange of words between him and the appellant. It was then that the wife realised that she was holding the shelf supports and she passed them to her husband who put them back on the display rack. They were then escorted to see the manager.

4.The magistrate accepted the evidence of the prosecution witnesses and rejected the defence. He found the charge proved against the appellant beyond reasonable doubt.

5.Two out of the three grounds of appeal relate to the decision of the Court of Appeal in R v Ng Wing-ming [1995] 1 HKCLR 64. The third one is a general ground that the conviction is unsafe and unsatisfactory in that the magistrate did not sufficiently consider the discrepancies and certain aspects of the evidence. Mr Cheng Huan SC, who appeared before this court on behalf of the appellant, submitted that in the light of Ng Wing-ming, the magistrate should have assessed the inherent probabilities of the prosecution's evidence and the defence evidence separately or alternatively the magistrate in rejecting the evidence of the appellant did not consider the appellant's evidence in its own right.

6.The law is and has always been that in a criminal trial all the evidence adduced by both the prosecution and the defence must be considered together and not separately bearing in mind the fundamental principle that it is for the prosecution to prove guilt. In other words, all the evidence must be put into the scale and weighed to see if the prosecution has proved guilt to the requisite standard. The court does not have to accept the evidence of a defendant but if it rejects his evidence the court has still to be satisfied beyond reasonable doubt on the prosecution evidence that the defendant is guilty. But the process of assessing evidence does not stop here. The court must then go further to consider whether the defendant has, by his evidence, raised a reasonable doubt entitling him to be acquitted. As it often happens the prosecution case sometimes becomes weaker after the defence evidence but sometimes it becomes stronger. At the end of the day, the question to be asked is whether the defence evidence has upset or turned the scale in his favour.

7.At first brush, there seems nothing wrong with the magistrate's approach to the issues that he faced. He correctly identified that the issue was one of credibility and followed the test laid down by Litton JA (as he then was) in assessing credibility. It is necessary to look at the case of Ng Wing-ming in some detail. The headnote at p. 64 reads:-

"The applicant was convicted after trial in the District Court on charges of blackmail, theft and common assault. It was alleged that the applicant had been one of a number of men who had detained the victim ("PW1"), forced him to sign an I.O.U. for $58,000 and then frightened PW1 into parting with certain sums of money. PW1 was the only prosecution witness, whilst the applicant was the only witness for the defence. The trial judge reached the conclusion that PW1 had told the truth and that the applicant had lied. In reaching this conclusion the trial judge relied most heavily upon the applicant's demeanour.

In allowing the appeal, it was held:

Where a case turned upon the victim's word against the accused's version, the inherent probabilities of the versions put forward by each witness was a more valuable test than the demeanour of the witnesses. In this case the judge had not sufficiently weighed the inherent probabilities but had relied too heavily upon the applicant's demeanour. (See p. 68, lines 7-13.) There was a lurking doubt as to the conviction."

8.There are several passages in the judgment which should be put in context. At p. 65 lines 25 to 34:

"Demeanour is a notoriously uncertain guide to the truth for obvious reasons. A witness comes into court as a total stranger to the judge who can hardly be expected to read from his or her facial expressions or "body language" indications as to truthfulness or otherwise. The inherent probabilities in most cases would be the first point of reference for the trial judge in seeking to ascertain the truth. Demeanour could only be a point of last resort. As regards the competing versions in this case, it is difficult to say which story was inherently more probable or improbable. Both versions had aspects which would tend to make a jury or a trial judge raise an eyebrow."

9.At p. 67, lines 6-7:

"The judge did not say that the applicant's version of events was inherently improbable or unbelievable."

10.This passage is important and I have underlined it. The next passage is at p. 68, line 7-8:

"In our view the judge had relied too heavily on her own subjective assessment of demeanour and had not sufficiently weighed in the scales the inherent probabilities of the case."

11.With these passages of the judgment of Litton JA in mind, I will turn to the Statement of Findings of the magistrate in paragraphs 24, 25 and 26 at p. 18:

"24. I carefully considered all the evidence. Essentially the issue to be determined was one of credibility, the prosecution case conflicting with that of the defence case as to what the appellant did with the shelf supporters, exhibit P1. In assessing credibility I bore in mind the decision in Ng Wai-ming [1995] 1 HKCLR 64, in particular that inherent probabilities provide a much better yardstick than the demeanour of the witnesses.

25. I had no hesitation in rejecting the appellant's evidence and that of his wife. I did not find their evidence credible where it was in conflict with that of the prosecution witnesses. By way of example I found it inherently improbable that on seeing the appellant pick up exhibit P1 (it being common ground that the appellant did pick up exhibit P1) PW1 did not, as the appellant and his wife testified, see the appellant approach his wife and put exhibit P1 on a rack but instead falsely accused the appellant of tucking the exhibit down the back of his trousers, left the shop without making payment and conspired with the manager to say the appellant removed the exhibit from his trousers inside the managers room.

26. I found it inherently improbable that PW1 would accuse the appellant of stealing exhibit P1 if, as the appellant and his wife testified, the appellant's wife handed the exhibit to her husband while on the way to the manager's room."

12.Paragraphs 25 and 26 suggest that the magistrate adopted an approach to the "inherent improbability" test which does not seem to follow the judgment of Litton JA in Ng Wai-ming. Instead of putting all the evidence into the scale and weighed it carefully to achieve a balanced and objective assessment, the magistrate simply applied the test to dismiss the defence without considering whether the defence evidence was inherently improbable. In Ng Wai-ming, the concept of inherent improbability was used by Litton JA to test the defence version. The appellant has been a man of good character with 20 years' service in the disciplinary force. His case was that he went to the shop with his wife to look for chairs and having bought a chair he was given concessionary coupons worth $20 which he and his wife wanted to use to get something of about that value before leaving the shop. That was why they chose the shelf supports which were priced at $30. Might this have been true? Was it possible? These were the questions Litton JA asked himself in the penultimate paragraph of his judgment. Bearing in mind that the appellant did not have to prove anything and if there was any reasonable doubt he was entitled to an acquittal.

13.But the magistrate had not approached the assessment of the evidence in the manner required in Ng Wai-ming. He fell into the same error of the trial judge in Ng Wai-ming that, in the words of the judgment, "the judge had relied too heavily on her own subjective assessment of demeanour and had not sufficiently weighed in the scales the inherent probabilities of the case." What the magistrate was saying was that to accept the defence account would be to say that the store detective and the manager had told lies, had made false accusations and conspired together to frame up the appellant of a criminal offence.

14.But it is not necessary for him to come to these conclusions because he could have acquitted if he had any reasonable doubt. Telling lies, making false accusations and conspiracies are nothing new under the sun and are not good and valid reasons for rejecting the defence off hand. These happened in the past and are still happening in our daily life both outside and inside the courts. These are not and cannot be considered as inherent improbabilities. A judge or a magistrate is charged with the function of making findings based on facts and not speculation. To borrow the phrase from Littlon JA, the magistrate here "did not say that the appellant's version was inherently improbable or unbelievable." Simply to say that it was inherently improbable for the store detective and the manager to lie, to make false accusations and to conspire, the magistrate had failed totally to consider whether the defence account was inherently improbable. He should have assessed the defence evidence against the prosecution evidence in a balanced and objective way and decided which account was inherently improbable.

15.In consequence, I must ask myself the same question that the Court of Appeal asked themselves: Am I content to let the matter stand as it is, or is there some lurking doubt in my mind which make me wonder if an injustice has been done? My answer is that a doubt exists and accordingly I must allow the appeal. The conviction is quashed and the orders made by the magistrate are set aside.

Representation:

Mr P Madigan, Senior Government Counsel for HKSAR, the Respondent

Mr Cheng Huan, SC, instructed by Messrs Jack Fong & Co, for the Appellant