The Queen v. Sin Siew-hon

HCMA000789/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 789 OF 1988

BETWEEN

Coram: The Hon. Mr. Justice Barnes in Court

Date of Hearing: 4th October 1988

Date of Delivery of Judgment: 4th October 1988

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J U D G M E N T

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1. The Appellant is a citizen of Singapore, who was holidaying here in June of this year when he was arrested by the police and charged with attempted theft. He pleaded not guilty and, because he was unable to raise the substantial bail which the magistrate offered, he was remanded in custody for trial. However, an early date was fixed for his trial so that he spent only a week in custody awaiting trial.

2. The evidence against him in the main consisted of the observations of two police officers who saw him paying attention to ladies handbags in the vicinity of bus stops in Kowloon. Eventually one of the officers saw him behaving suspiciously in relation to a lady shopper in a crowded area of Nathan Road and actually saw the Appellant's hand in and emerge from her handbag. The officers went up and accosted him. The lady checked her bag found nothing missing but the bag had been opened.

3. The Defendant was unrepresented at the trial but he gave evidence and the effect of his evidence was that if he did touch the lady's handbag it was an accident. The magistrate did not believe him, accepted that the evidence of the police officers, in particular the evidence of the officer who said he saw the Appellant's hand actually in the lady's handbag, and convicted him.

4. Mr. King who appears for him on the hearing of this appeal has put forward five rounds of appeal. He does not contend that any one of the grounds is sufficient in itself to upset the conviction, but he does submit that the cumulative effect of all the matters he raises is that the conviction is unsafe.

5. His first ground is that the magistrate failed to advise the Appellant of his right to have legal representation at his trial or to enquire as to whether he wished to instruct a lawyer to appear for him.The record shows that on his first appearance before the Court, the magistrate advised him that he could obtain legal representation by contacting the Singapore Commission have been informed that contact was made with the Singapore Commission and that a representative of the Commission visited the Appellant while he was in Lai Chi Kok Remand Centre. The Appellant, therefore, did have the opportunity to arrange for legal representation if he wanted it and I see no ground for this complaint.

6. Mr. King criticised the fixing of the trial so soon after the Appellant's first appearance and complains that this gave him insufficient time to arrange legal representation. I think that the fixing of an early date for trial was a wise one in the circumstances and done for the Appellant's benefit. If he had been found not guilty at the trial he would have spent only that week in custody. If he had genuinely wanted to secure legal representation, he could have secured it within that week and if his legal representative felt that he had insufficient time to prepare for trial he could have applied for an adjourned date of hearing.I do not think that the fixing of an early date prejudiced the Appellant in any way at all.

7. By his second ground Mr. King contends that the magistrate wrongly asked the Appellant to decide whether the prosecution should call one of the police witnesses. The prosecution had indicated on plea day that there would be four prosecution withesses, one being the lady who carried the handbag and the other three police withesses. The lady with the handbag was called and two of the police witnesses. But the third, a woman police constable, had merely asked the lady and her companion whether they had lost their wallets. The Appellant did cross examine both the handbag owner and the first of the police witnesses. When the second police witness was called, the Appellant asked him no questions at all and the record shows that the magistrate then asked the Appellant whether he wanted the prosecution to call the woman police officer, he mentioned what her role was and told the Appellant that she could be called so that he could ask her questions, but the Appellant said that he did not want her called.

8. Mr. King submits that the magistrate should not have put such a question to an unrepresented Defendant, that an unrepresented Defendant is not in a position to make a proper decision in respect of such a matter. I think it was a proper question since there was very little by way of material evidence which the woman police constable could have given. It was therefore rather pointless for her to be called if the Defendant did not wish to ask her any questions

9. The third ground contends that the magistrate was wrong not to the require the production of the handbag. The handbag was not produced but photographs of it were tendered as exhibits. The handbag was of some importance because of the way in which it could be opened and closed. The owner gave a description of how that could be done and the photographs showed how that could be done. In any event , the magistrate told the Defendant that the handbag had not been produced and then asked "Do you think it might help your case if the handbag were brought to Court?" The Defendant replied "No need". The Defendant was in the best position to know whether the actual handbag was of any assistance to his case or not and, so far as the prosecution case was concerned, photographs of the handbag were sufficient without the need to produce the handbag itself.

10. Mr. King in this connection also complains that again an unrepresented Defendant should not have been asked to make a decision about whether an exhibit should have been produced or not. I do not agree. I think it was a proper question for the magistrate to ask in the circumstances because quite clearly the magistrate had in mind that if the Defendant thought the physical presence of the handbag in the Court would assist his case, then would have insisted that the article be produced.

11. The Appellant in his evidence mentioned that he was the food and beverage manager of the Millionaires Club in Singapore and that he was a person of good character, making the point that unless he were of a good character, he would not hold such a position. Mr. King submits that the Defendant therefore put evidence of good character  before the Court and that this should have been considered by the magistrate on the issue whether the Defendant had done what he was alleged to do or not. It is true that the magistrate makes no reference to this evidence in his Statement of Findings. However, he has given considered reasons for his acceptance of the evidence of the prosecution regarding the central incident in this case and he has found the Appellant's version inherently incredible. I do not think that good character can change an inherently incredible story into a credible one. So although the magistrate has made no reference to'the evidence of good character, it seems to me that even if he did he would have disposed of it in the way I have just mentioned.

12. By his fourth ground of appeal, Mr. King contends that the evidence of the second and third prosecution witnesses in relation to the incident's at the bus stops was so unreliable and inconsistent that it should not have been relied upon by the magistrate. The inconsistency to which Mr. King referred arose out of the description by the two witnesses of the first incident when they say they saw the appellont paying attention to a lady's handbag. One witness said that that handbag was white whereas the other said that it "seems to be black" and later that it was black. The learned magistrate did pay regard to that conflict in the evidence of the two witnesses but he came to the conclusion that the witness who thought it was black was "confused in his own mind" about the earlier incident. He accepted the other prosecution witness as an honest and reliable witness, and rejected that part of the other prosecution witness's evidence which was in conflict with it. He was perfectly entitled to do that, and having resolved that inconsistency, he had sufficient in the evidence of that prosecution witness on which to find the Appellant guilty.

13. Mr. King submits that the learned magistrate should have done more than merely found that the second prosecution witness was an honest witness because in this case it was important since it was an incident witnessed over short period of time in crowded conditions he should also have found that the witness was accurate and reliable. The magistrate did make a finding that the witness was both honest and reliable.

14. I find insufficient substance in any of the grounds to support the contention that the conviction is unsafe. I must, therefore, dismiss the appeal.

Representation:

Miss Evena Chan, C. C. for the Crown.

Mr. Alexander King (Richards Butler) for Appellant.