The Queen v. Lau Wai Cheong

HCMA000012/1990

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HEADNOTE

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EVALUATION OF EVIDENCE WHERE THERE ARE ACCOMPANYING FACTORS OR FEATURES WHICH ASSIST IN COMING TO A DECISION ON CREDIBILITY.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 12 OF 1990

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BETWEEN

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Coram: Hon. Ryan J. in Court,

Date of hearing: 13 February 1990

Date of delivery of judgment: 13 February 1990

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JUDGMENT

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1. Two police officers gave evidence of having seen the appellant at about 2 a.m. on the 1st September 1989 outside the Kowloon Tong Railway Station. They stated that they had kept the appellant under observation, that he had been seen looking side to side and that he had started to climb a wire fence. Their evidence was that he went half way up the fence and then came down to the footpath again. He was seen to have been peeping through the wire fence into the railway station area, he then turned and walked towards the two police officer's who stopped him. The lighting is said to have been good  in the street and in the railway station.

2. It was the evidence of PW1 that he asked the appellant why he was there and the appellant replied that he was bored at home and was just out for a walk. He was asked why he climbed the fence and he denied having done so. He was asked for a satisfactory explanation and was told that if he did not give one, he would be arrested for loitering. The police officer's evidence is that the appellant did not reply and he was accordingly arrested for the offence.

3. It is the prosecution evidence that he was then searched and a knife was found inside the waistband of his trousers wrapped in a plastic bag, a knife of approximately 9" with a sharp point. When asked why he carried the knife he did not reply. He was therefore arrested for possession of an offensive weapon and is then alleged to have said: "You have arrested me for loitering, don't arrest me for the knife, give me a break". The officers agreed that the only building on the other side of the wire fence was the railway station which at that time was closed.

4. The appellant gave evidence that he is aged 26 with a clear record, that he spent 2+ years as an apprentice learning plastic moulding, and that he has since 1986 been in partnership with a Mr Yip in a plastic moulding factory. It was his evidence which was not challenged that the partnership owns its own premises and employs five workers. He gave evidence of having a girlfriend named Miss Chan, that the relationship has been existing for three years and that they intended to marry in 1990.

5. It was his evidence that on, the 31st August 1989, on the evening before the alleged offences, he saw his girlfriend at home in Shatin, where an arrangement was made to meet her outside the Kowloon Tong Railway station at 12:45 a.m. on the 1st September. She had an earlier appointment with a friend and it was understood by him that they would meet at the railway station at the appointed time after that appointment. He then went to his factory at Shatin which he left at about 12:30 a.m. and arrived at the Kowloon Tong, Railway Station at approximately 12:50. He says he sat on the railings until 1:30 a.m. when four men approached him and asked him what he was doing. A conversation took place in which he says he explained that he was waiting for his girlfriend, and at their request, they having been identified as police officers, he told them of her name, address and telephone number. Two of the police officers who were in the group of four then departed and subsequently returned and they all waited for about half an hour for the arrival of the girlfriend. When she did not arrive, he was taken back to, the Kowloon City Police Station and duly charged.

6. He denied in evidence to having even climbed the fence or to have been in possession of the knife. He says that the knife was first seen by him at the Kowloon City Police station at 5:30 a.m. on the 1st September 1989.

7. It is not disputed that he did not see his girlfriend while in custody. He says that at 6 a.m. on the 1st September 1989 he phoned his girlfriend's residence.  She was not there. He therefore spoke with her mother and explained his difficulties. At about 5 p.m. he made a cautioned statement to the police in which he set out details of the proposed meeting with his girlfriend at the Kowloon Tong Railway Station.

8. The girlfriend Miss Chan gave evidence and stated that she was a student at the Baptist College, that she had known the appellant for some time and that they intended to get married. It was her evidence that she had seen the appellant on the 31st August 1989 at her home and that they had made arrangements to meet at the Kowloon Tong Railway Station at about 12:45 a.m. She is said to have met with two other friends in accordance with another pre-arranged meeting as a result of which she stayed with one of those friends who was suffering from depression. She did not get back to her own premises until about 9 a.m. on the 1st September. She was duly told that her mother had gone to the police station and she went there and made a statement at 6:23 p.m. in which she set out the details of the proposed meeting with the appellant at the Kowloon Tong Railway Station.

9. The Magistrate acknowledged that she had made such a statement to the police and that while the defendant did have access to a telephone while in custody, the Magistrate doubted that a story such as she had given could be concocted over the phone. He said that Miss Chan had no. chance to collude in making a statement. He also accepted that the defendant had made a statement similar to hers prior to her attending at the police station.

10. The Magistrate accepted the evidence of Miss Chan as to the pre-arranged meeting with the appellant and although not totally agreeing with the appellant's evidence on the point, he did acknowledge that the appellant may have been at the Kowloon Tong Railway Station for this purpose. Having accepted this evidence, the Magistrate does not then appear to have gone on to consider how this fact affected the credibility of the parties concerned. In his oral judgement and his Reasons for verdict, he simply states that he believed the police evidence.

11. In the case of Reg v. Ma Kwai Chong [1968] HKLR p.654, Huggins, J. (as he then was) said:-

"I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellant court will come to the conclusion that his finding of fact was unsafe and may therefore quash the conviction."

12. In Lam in Chung v. R. Cr. App. 65 of 1972, the Full Court said:-

"Obviously, a tribunal must evaluate the evidence before it, and in the case of oral testimony must weight it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less. Certainly there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything" than say which of the witnesses it believes. That, however, is not the type of case we have in mind."

13. This was not a case where the magistrate was left with only a direct choice between the police officers and the appellant. He had an "accompanying factor or feature" - the evidence of Miss Chan - and this was an aid he could have used in assessing the credibility of the parties. He accepted as true her evidence that she and the appellant had arranged to meet at the Kowloon Tong Railway station that morning. It was the evidence of PW1 that the appellant had said he was there because he was bored at home and had come out for a walk. Having accepted Miss Chan's evidence it would have been proper for the magistrate to ask himself why the appellant would tell a lie about this, which brought suspicion upon himself, when he had a legitimate reason for being there. It is the appellant's evidence that he did tell the police officers that he was there to meet his girl friend and that he gave them her name, address and telephone number. In the light of Miss Chan's evidenc it is highly probable that the appellant's evidence on this point was true, which puts into question the credibility of the police officers. If the evidence had been considered in this way along with what was being alleged; a young man with a clear record, in a partnership running a successful business, no apparent money problems, said to have been trying to climb a fence into a closed and deserted railway station with a sharp 9" knife in his waistband, then the magistrate may have come to a different conclusion as to the reliability of the police officers' evidence.

14. While an appellate court is always reluctant to interfere with a magistrate's verdict based on findings of fact I have to say that in this case I am left with a lurking doubt that the verdicts are safe. I therefore allow the appeal and quash the verdicts. I will allow the appellant costs on the appeal.

Representation:

Mr Derek Pang, Crown Counsel for Crown.

Mr Peter Nguyen, inst'd by Wong, Poon, Chan, Law & Co. for Appellant.