The Queen v. To Hung-sang

CACC001578/1983

BETWEEN

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Coram: Barnes, J. in Court.

Date: -3 APR 1984

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JUDGMENT

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1. The Appellant pleaded not guilty to the following charge:-

Charge - Criminal Damage

Statement of Offence:- Contrary to Section 60(1) of the Crimes Ordinance, Cap.200, Laws of Hong Kong.

Particulars of Offence:-TO Hung-sang, you are charged that on the 23rd day of October, 1983, at Kowloon, in this Colony, without lawful excuse, you did damage 'the brake hose of goods vehicle BN 6307' belonging to YUEN Pui-sing, intending to damage such property or being reckless as to whether such property would be damaged.

2. By way of formal admissions made pursuant to section 65C of the Criminal Procedure Ordinance it was proved conclusively that --

3. Three photographs showing the damage to the vehicle were also admitted in evidence.

4. The only witnesses to give evidence were the owner of the vehicle and the Appellant. The owner said that he caught the Appellant in the act of cutting the brake hose with the blade referred to in the formal admissions. The Appellant in his evidence did not specifically deny having cut the brake hose until the allegation was put to him in cross-examination. His evidence in chief was a different version of the confrontation of the two of them in the vicinity of the damaged vehicle from that given by the owner.

5. The learned magistrate accepted the evidence of the owner that he did see the Appellant actually cut the hose, rejected the Appellant's denial and convicted him.

6. The Appellant's first ground of appeal is that "the learned magistrate erred in law when he 'balanced' the Appellant's. evidence against that of P.W.1 in coming to his decision of guilt".

7. Two unhappily worded sentences taken out of their context in the magistrate's Statement of Findings lend superficial support for this submission. In one place lie said -

"...... I had to decide whether I accepted [the owner's] account, or that of the Appellant."

Whilst in another he said -

"I had to balance against that the evidence of the Appellant."

8. Mr. Wong on behalf of the Appellant submitted that the magistrate through those utterings disclosed the same wrong approach as that which vitiated the Conviction in PAU Wing-shing v. R.⁽¹⁾

9. That case was an application of the principle that a misdirection as to the onus of proof almost invariably leads to a conviction being quashed on appeal. In that case the magistrate implied that he had to believe one version or the other whereas the proper approach should have been: am I satisfied beyond a reasonable doubt that the prosecution version is true? Thus, the real question is not whether a magistrate has used a form of words which has been shown in some other case to be inadequate, standing alone, to show that he paid proper regard to the requirements of the onus and standard of proof, but whether, read as a whole, his Statement of Findings convincingly reveals that he had those requirements in mind and observed them.

10. Here the learned magistrate set out the evidence which was before him and then said -

"That being the extent of the oral evidence, I had to decide whether I accepted [the owner's] account, or that of the Appellant."

11. Now, if he had stopped there this case would be similar to the Pau Case (supra). But he did not stop there. He went on to say -

"I directed myself that I could only convict the Appellant if I was satisfied so that I was sure that the evidence given by [the owner] was accurate and true. That, if I disbelieved [him], or had any doubt about the veracity of his evidence, then the Appellant must be acquitted."

12. That is a proper direction revealing clearly that the magistrate had in mind where the onus of proof lay and what the standard of proof was. But he then went on to say -

"I had to balance against that the evidence of the "Appellant."

Counsel for the Appellant argued that that sentence revealed a "Pau Case misdirection". If the magistrate meant that he had to "balance" the evidence to see whether the Appellant caused him to disbelieve or doubt the owner's evidence then quite clearly he would have been misdirecting himself. But the sentence has to be read in the context of what preceded it - which is what I have just quoted - and of what followed it -which I now quote:-

"I had to consider most carefully (as I did) the version given by the Appellant.

Having heard, and seen, these two witnesses, had no doubt whatsoever that the Appellant had damaged the brake hose on that day in the way described. I accepted [the owner's] evidence. I found him to be an entirely credible and convincing witness. I rejected the Appellant's evidence; I did not believe him."

In context the magistrate clearly meant, when he used the phrase "balance against that the evidence of the Appellant", that when weighing the evidence of the owner to see whether he could be sure that it "was accurate and true", he had to weigh with it the evidence of the Appellant as well. He was making it clear that he was not weighing the owner's evidence in isolation but carefully considering whether in the context of the whole of the evidence before him it could pass the test it had to pass before he could properly convict. He cast no onus on the Appellant whatsoever and clearly would. have acquitted had :the owner's evidence still left him feeling unsure notwithstanding his rejection of the Appellant's evidence. There was therefore no "error in law" as alleged.

13. The second ground of appeal is that the learned magistrate failed to consider or sufficiently consider the contradictions which appeared in the owner's evidence and totally failed to consider the contradiction between the owner's evidence and the prosecution's case which was that the brake hose of the right wheel was severed not the left.

14. The "contradiction" which the magistrate is alleged to have ignored completely could only be a contradiction if it is assumed that the owner when he said -

"I saw [the Appellant] squatting at the left front position of my vehicle"

was facing in the same direction as the front of the vehicle. If however, he came upon the Appellant by approaching from the front then the offside of the vehicle where the damage was done was on the owner's left hand side. In order to see the Appellant cutting the hose he would almost certainly have had 'to have been facing the front of the vehicle. In that event, in relation to the owner, the Appellant would have been squatting at the left front portion of the vehicle".

15. The other "contradictions" related to matters which occurred after the owner had, according to him, seen the Appellant cutting the hose. The magistrate was quite sure that the owner's evidence that he had seen the Appellant actually cut the hose was accurate and true. The apparent discrepancies in the owner's evidence about what happened subsequent to his verbal exchange with the Appellant after catching him in the act were not inconsistent with such a finding of accuracy and truth.

16. The third ground is that the learned magistrate failed to state or sufficiently state the reasons why he accepted the owner's evidence "in the face of the contradictions and against the weight of the evidence".

17. The magistrate did not accept the owner's evidence "against the weight of the evidence". The "weight of the evidence", insofar as it can be assessed from a written record of it, was in favour of the magistrate's view.

18. The answer to the complaint that the learned magistrate failed to state his reasons for accepting the owner's evidence and disbelieving that of the Appellant is to be found in the following part of the judgment in LAW Keung v R.⁽²⁾ (a case cited by the Appellant's counsel in support of this ground):-

"There are cases where, as the Full Court pointed out in ........LAM Tin-chung ⁽³⁾ ...... the court can do little more than say which of the witnesses it believes. If a magistrate can fairly say why he believes or disbelieves a witness, then so much the better; but it is not always easy to give a reason for such belief or disbelief".

19. This was a case where the magistrate formed his view, as he said, on the, basis of what he had heard from, and seen of, the only two witnesses before him. It would have been "so much the better" if he had been able to verbalize the reasons for his belief and disbelief. But if he found himself unable to then, provided he directed himself properly - as I find he did - the lack of reasons does not provide sufficient ground for this court to interfere with his decision.

20. The appeal is dismissed.

(1) (1970) H.K.L.R. 47

(2) Crp. App. 625 of 9972

(3) (1970) H.K.L.R. 105, 106

Representation:

Mr. M. Hartmann, Crown Counsel for the Crown.

Mr. Ching Y. Wong instructed by Messrs. Jenkins & Au for the Appellant.