The Queen v. Cheung Tak Chi

CACC000043/1989

Headnote

By section 80 of the District Court Ordinance (Cap 336) when a judge records his verdict on a criminal charge he must place on record a short statement of his reasons either at the same time or so soon thereafter as may be regardless, of whether or not an application for leave to appeal or the reference of a question of law intervenes. Further, the Reasons for Verdict should be dated and signed by the Judge and the date when placed on the record be entered by his clerk.

BETWEEN

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Coram: Hon Sir Derek Cons, V-P, Kempster & Penlington JJA

Date of hearing: 6 April 1990

Date of Judgment: 6 April 1990

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JUDGMENT

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Kempster, JA (giving the judgment of the court) :

1. On 20 December 1988, after trial in the District Court, CHEUNG Tak-chi was convicted by HH Judge Wesley Wong on two charges of obtaining property by deception and two, being charges 7 and 8, of attempting so to do. Against these last two convictions he seeks leave to appeal. The particulars of charge No. 7 read: -

"CHEUNG Tak-chi, on the 24th day of March 1988, at Sogo Department Store, ... attempted to obtain property, namely, three pairs of socks and one overcoat, totally valued at $2,072 from Sogo Department Store, with the intention of permanently depriving the said Department Store thereof, by deception, namely, by falsely representing that he was then entitled to pay for the said property by charging the cost to account number 3733-122176-31009 held with the American Express International Corporation".

Charge No. 8 was in like terms save that for "three pairs of socks and one overcoat totally valued at $2,072" the words "one T-shirt and one overcoat totally valued at $2,590" fall to be substituted. In his Reasons for Verdict, given subsequently to conviction but on a date which cannot be ascertained from the court file, the judge referred to the relevant evidence. He said that: -

"In relation to these two charges [the sales girl] WONG Po-wah had said that she worked in La Blaze and Durban counters in the Department Store and that on 24 March 1988 she had attended two male and one female customers. They purchased a jacket and three pairs of socks and paid by card. She attended to them for fifteen to twenty minutes. She made out the credit sales slip, asking the man to sign on the slip, and took the card for processing. She went to the cashier to make a check of the code and enquiries to credit ratings were made. Then the man told her that he would pay by cash but left without paying. On 15 July 1988 she attended an identification parade.  She picked out [the applicant] from a line of 14 Chinese males. She also identified him in court. She was sure and positive about her identification because she attended to him, asking him to sign the slip and she asked him to go to the phone. She also identified the card that was used."

The judge referred to expert evidence which made it clear beyond a peradventure that the card was a forged instrument and to the agreed fact that at the identification parade [the sales girl] WONG Po-wah had made a mis-identification of an actor. Neither the applicant nor a co-accused gave or called evidence.

2. In coming to his conclusions the judge used these words: -

"The applicant was positively identified by [the sales girl] who described in detail how he attempted to buy the items by an American Express Card which had been proved by an expert to be flattened and re-embossed ... In the premises I am satisfied beyond reasonable doubt as to the guilt of the applicant in respect of the 7th and 8th charges."

It will be seen that the judge had reminded himself of the circumstances germane to the reliability as well as to the truthfulness of the sales girl; thereby showing his awareness of the critical nature of such evidence in the instant case. He did not, however, give any indication that he appreciated the inherent danger of entering a conviction based solely upon identification evidence.

3. By his Amended Perfected Grounds of Appeal the applicant contends that in accepting the validity of the sales girl's identification at the parade held on 15 July 1988, nearly four months after the material events, the judge had failed to take into account the consideration that a witness whom he had found truthful might yet be mistaken; particularly having regard to the mis-identification of the actor and to her vagueness. In this regard it may be appropriate to refer to her evidence relating to the identification parade: -

"I was asked to look at 14 Chinese males. The first one I recognised was one of the two in Sogo that day who made the purchase. I was referring to the one in a suit. He stood at No. 2 position. I also pointed to No. 6.  I recognised the one at No. 6 position was the one who wore a T-shirt. The one at No. 2 position I was very certain he was the one in the suit. The one at No. 6 position it was just my vague impression. The reason why I was sure was because it was him who sighed the card and the one I asked to speak on the phone. I can recognise his whole appearance. Today I can still identify him. He is in court."

She identified the applicant at the trial. When cross-examined she said that she attended to about forty customers a day on average and that the three involved in the incident on 24 March 1988, two men and a girl, spent about fifteen to twenty minutes before deciding to make a purchase.  She said that the man in the T-shirt whom she had purported to identify had selected some socks. She wrapped the socks. Although she was only vaguely sure of her identification of the man in the T-shirt she had not told the inspector conducting the identification parade of her uncertainty, nor had she mentioned it in a statement she had given to the police. She also said, in relation to the applicant, that he had no peculiar feature which rendered identification easy for her.

4. Assuming that the judge took all these matters into account we have to have consider to what extent he was called upon to reveal his thought processes in the Reasons for Verdict. Here we bear in mind the terms of s 80 of the District Court Ordinance (Cap 336). It was not incumbent upon him to outline all the pros and cons considered before making his findings as to veracity. No more was he required to give himself the explicit directions, appropriate had he been summing-up to a jury, explained in R v Turnbull [1977] QB 224 and R v Reid [1989] 3 WLR 771. However, it was in our view necessary for him to indicate that he had in mind the risks inherent in relying exclusively upon evidence of identification and this he failed to do.

5. While we accept that knowledge of the burden and standard of proof of required in a criminal case can be assumed when one is considering the Reasons of a professionally qualified judge the dangers inherent, for example, in identification evidence do not fall into the same category. In the instant case it is not clear from the judge's notes of the submissions made to him that counsel in fact brought these dangers to his attention. In the premises we cannot be satisfied that the convictions on charges 7 and 8 were safe or satisfactory. It follows that we must allow the application for leave to appeal against conviction. We treat this as the hearing of the appeal, quash the convictions on those charges and set aside the sentences imposed.

6. Before parting with this application we would mention the strict obligations imposed on a judge by s 80. He must place on record his Reasons for Verdict at the same time as he records that verdict or, and we emphasise the word 'or', so soon thereafter as may be whether or not an application for leave to appeal or the reference of a question of law intervenes. The warning given by this court in R v HUI Lap-keung & Ors [1989] 1 HKLR 261 at pp 263-4, should so be understood. What is more, the Reasons for Verdict should be dated and signed by the judge and the date when  such Reasons are placed on the record be entered by his clerk. This court is not particularly interested in the date upon which a true copy is certified.

7. CHEUNG Tak-chi now applies for leave to appeal against the sentences of 30 months imprisonment, concurrent, passed upon him in relation to two charges of obtaining property by deception, one on 11 and the other on 12, April 1988, in Hong Kong, by the fraudulent use of a forged credit card; the value of goods obtained being some four thousand dollars. The fact that those goods or some of them were subsequently recovered we regard as fortuitous.

8. In giving his Reasons for Sentence the judge referred to the applicant's previous convictions involving dishonesty. As has been mentioned by Mr Grounds on his behalf, in 1983 he was convicted on six counts of burglary and one of taking a conveyance without authority. While he appears to have kept out of trouble until 1988, when he was 24 years of age, he could claim no credit for pleas of "guilty". The two offences involved preparation, calculation and planning. Custodial sentences, as the judge properly said, were inevitable. But now the applicant stands convicted only of two of the four offences for which the overall sentence of 30 months was imposed. This sentence must therefore be reduced. We consider that it is appropriate to impose a sentence of 12 months imprisonment on each of the convictions and that they should run consecutively. It may well be that this will mean his immediate or virtually immediate release. If that be the case so be it. Formally the application for leave to appeal against sentence is allowed; we treat this as the hearing of the appeal and the sentences of 30 months imprisonment on charges one and three are quashed. We substitute a sentence of 12 months imprisonment on each to run consecutively.

Representation:

C Grounds (Lee  & Chow) for Applicant

IC McWalters for the Crown/Respondent