The Queen v. Ho Luen Hing

CACC000302/1985

Headnote

Format of Reasons for Verdict

BETWEEN

Coram: Yang, Silke & Kempster, JJ. A.

Date of hearing: 2nd October, 1985.

Date of delivery of judgment: 2nd October, 1985.

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JUDGMENT

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Yang, J. A. :

1. This is an application for leave to appeal against conviction. The Applicant was convicted on the first charge of stealing an automatic teller machine card ("the ATM card"), seven other charges of theft each involving the stealing of HK $2,000 belonging to one Lee Wai-kwong (Lee), and one of common assault.

2. The matter arose in the following manner. The victim in this case, Lee, was an illegal immigrant, having arrived in Hong Kong in 1980. Whilst here he was allowed the use of a savings account belonging to Siu. He was also allowed to use Siu's ATM card, the subject matter of the first charge.

3. On the 17th September a party of Immigration Officers led by the Applicant arrived at Lee's place of work and there arrested him. There was a struggle at the time of arrest, but eventually he was subdued and taken to the Immigration Department Headquarters at Li Po Chun Chambers. The ATM card in question was found on him at the time of arrest. Nothing of significance happened at Li Po Chun Chambers. He was then taken to his home in Gillies Avenue. There the savings account passbook in the name of Siu was found on Lee's bed and returned to Siu. The ATM card was shown to Siu, but the Immigration Officers retained it when they left the premises.

4. After leaving Gillies Avenue, the party proceeded to Li Po Chun Chambers. En route in the van, the Applicant questioned Lee as to the number of the ATM card, but did not receive a reply. Sometime in the afternoon when Lee was interviewed by the Applicant, the Applicant again questioned Lee about the number of the ATM card. When Lee proved reluctant to answer, he was threatened and punched. As a result of the assault Lee disclosed the number, which the Applicant wrote on a piece of paper and put it inside a drawer. The assault is the subject matter of Charge 16.

5. It is the trial judge's finding that when the interview with Lee ended in the evening of the 17th December, the ATM card was still in the possession of the Immigration Department at Li Po Chun Chambers. There is evidence to show that later in the evening, at about 9 p.m., several items of Lee's property were handed over to the police, but the ATM card was not amongst them. Then there is the evidence of the use of the ATM card in a series of withdrawals of money from various branches of the Hong Kong & Shanghai Bank and the Yaumatic Branch of the Hang Seng Bank of $2,000 on each occasion.

6. There is also evidence to show that when Lee was compelled to disclose the ATM card number to the Applicant, they were alone. So it is a fair inference that, apart from the Applicant, nobody else in the Immigration Department became ware of the number by virtue of Lee's disclosure.

7. The question arises as to whether the evidence adduced before the trial judge was sufficiently strong, accepting that it was circumstantial, to point inevitably to the guilt of the Applicant on  the theft charges.

8. The judge in his Reasons for Verdict (about which we will have something to say later on) relied on three main pieces of evidence and came to the conclusion that the Applicant either by himself or if not by himself, then certainly with somebody else, stole the ATM card and also the money. He relied on the evidence of the Applicant's close questioning of Lee as to the number of the ATM card.  He relied also on the way that the number of the card was obtained from Lee after the assault. He then relied on the evidence of the position held by the Applicant in that he was an Immigration Officer and he was in charge of the arresting team at the time. Yet another piece of evidence which he had in the forefront of his mind, though he did not specifically say he relied on it as circumstantial evidence, was the fact that the property handed over to the police in the evening of the 17th September did not include the ATM card.

9. Taking the evidence as a whole, we are of the view that there is ample justification for the judge to come to the conclusion that the evidence, though circumstantial, was strong enough to point to the guilt of the Applicant as charged.

10. For these reasons Ground 1 of the Ground of Appeal fails. Under Ground 2 Mr. Bernacchi who appears for the Applicant, complains that the judge was wrong in finding that the Defendant used or was, party to the use of the ATM card. There was no direct evidence that the Applicant on any occasion actually put the card into the AT machine. Again in our view, there is sufficient circumstantial evidence to point to the fact that apart from two occasions to which we shall refer, the Defendant either himself used the card or agreed with somebody else to use it. The exceptions are that on two occasions, the Applicant was nowhere near any of the relevant automatic teller machines and therefore he could not have personally gone to the machine to withdraw money. It was perhaps for this reason that the judge in his Reasons for Verdict said that he could not be certain that the Defendant was alone in the commission of these offences but was satisfied beyond all reasonable doubt that he agreed to it and intended that the card should be used and the money taken.

11. On Charge 16 i.e. that of assault, we have the direct evidence of Lee. The judge, in his careful assessment of the prosecution witnesses, came to the view that Lee was a reliable witness.

12. Lastly, Mr. Bernacchi argues that taking the case as a whole, the convictions are unsafe and unsatisfactory. It is said that if the Court had been informed of the Applicant's clear record, the judge might have evaluated the evidence rather differently. The matter of the Applicant's record was not raised in the court below, but certainly the judge could not fail to have been aware of the principle that a person is presumed to be innocent and presumed to have a clear record until there is evidence to the contrary.

13. We think there is nothing in any of the four grounds of appeal. The application is therefore dismissed.

14. As indicated earlier, we wish to refer to the format of the Reasons for Verdict. We deprecate the manner in which these Reasons for Verdict are presented the District Court Ordinance says quite clearly that a judge should give a short statement for the reasons for verdict. Those Reasons should of themselves be full. Here we have a long recitation of all the evidence given in Court. This we do not find helpful. Indeed, it only confuses. This Court has, on a number of occasions, made observations along the same line, but occasionally we still come across Reasons in which a long recitation or a repetition of the evidence is given. We hope this practice will stop.

15. En passant, we may add that we regard it as desirable that a copy of the Reasons for Verdict should, as a matter of course, be served on every person after conviction.

Representation:

Mr. B. Bernacchi, Q.C. and Mr. K. Chan (T. M. Chow & Co.) for Applicant

Mr. K. Browne, Crown Counsel for Respondent