Yung Yue Chee v. The Queen

CACC000313/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 313 OF 1971

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Coram: Huggins, J.

Date of Judgment: 29th June, 1971.

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JUDGMENT

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1. The Appellant was charged with theft and appeals against his conviction.

2. The ground of appeal which has been argued is that the findings of the learned Magistrate were against the weight of the evidence. The evidence was that of two police constables who say that they saw the Appellant at a bus stop go up behind somebody who was boarding a bus and removed something from his right hip pocket. One of the constables then stopped the Appellant and the other stopped the man whose pocket they thought had been picked. That person was questioned and discovered that he had lost a sum of $45. A sum of $45 was found in the hands of the Appellant. The victim of the theft was not cross-examined at all. The two police constables were cross-examined and undoubtedly there are certain matters which one might have expected would be the subject of cross-examination. There were matters which were the subject of cross-examination and upon which their answers were not entirely satisfactory, particularly as to the hours of their duty, although I am by no means persuaded that all the points which Mr. Chan has pointed to are discrepancies.

3. The case for the Appellant was that he was changing buses and had just alighted when these two constables came up to him and arrested him. He said that he had not picked anybody's pocket and that he was on his way to buy a suit; that his mother had given him $50 of which he had just spent $5. This evidence was corroborated by the mother to the extent that she admitted having give$50 to him for a suit and a third person also gave evidence that he was present when a sum of $50 was given to the Appellant.

4. The learned Magistrate said that he had carefully considered the evidence and was satisfied beyond reasonable doubt that the Appellant was caught red handed. In his Statement of Findings the learned Magistrate did use the phrase that he "preferred" the evidence of the witnesses for the prosecution. That is a word which is commonly used in this context, although, perhaps, it is not one which ought to be used as commonly as it is. Reading the Statement as a whole I do not think the learned Magistrate misdirected himself on the burden of proof. I am satisfied that the learned Magistrate did have evidence before him which justified his coming to the conclusion which he did.

5. Another matter upon which no questions were put was whether the Appellant had an Identity Card upon him when he was arrested. It does seem to be suggested by a note on the Charge Sheet (which is not evidence in the case) that there was no Identity Card in his Prisoner's Property. It may be that he had an Identity Card and that something else was done with it: I do not know. Mr. Chan suggests that the existence of the note would not be known to the cross-examiner. There is no reason at all why the cross-examiner should be ignorant of it, since the defence are entitled to a copy of the Charge Sheet and if they had desired to have one they could have had one. This is certainly not a matter which would justify me in saying that the conviction was unsafe. I am unable to say that the learned Magistrate's decision was against the weight of the evidence.

6. One matter did cause me a little anxiety, as it did counsel for the Crown: there was a question put to the Appellant in cross-examination which could be interpreted as a hint that the Appellant had previous convictions. He was asked: "Before involved in this case, do you know what a caution is?" and his answer was "I do not know". The reason for that question would appear to be that the Appellant had in his evidence-in-chief said that he was not cautioned by either of the police officers at the time of his arrest. It was reasonable in my view in those circumstances for the cross-examiner to ascertain whether the Appellant knew at the time that he was alleged to have been cautioned what a caution was, and the fact that he said he did not know might very well weigh with the Magistrate in deciding whether to believe his evidence that he was not cautioned. It is true that there was some danger in this line of cross-examination but in my view it was justified in the circumstances. His answer certainly would not support any hint that he had previous convictions and I am not persuaded that the question was, in all the circumstances, in a form which was prejudicial to the Appellant.

7. For these reasons I am satisfied that the conviction was justified and the appeal is dismissed.

8. Several matters were mentioned in the course of the appeal which, in my view, should not have been mentioned. In particular the fact that this was, as I accept from the Bar, the first case decided by this particular Magistrate has nothing whatsoever to do with the question whether or not the evidence justified the conviction or whether it was against the weight of the evidence.

29th June, 1971.

Representation: