HKSAR v. Cheung Wai Yin

HCMA882/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 882 OF 2005

(ON APPEAL FROM STCC 2781 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 20 December 2005

Date of Judgment : 29 December 2005

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J U D G M E N T

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1.The appellant was convicted of theft of a mobile phone after trial in Shatin Magistracy.  He appeals against that conviction.

2.The facts of the case as found by the magistrate were that the appellant, a part-time lifeguard, had on 25 October 2004 stolen a mobile phone belonging to a fellow lifeguard when the victim had left it on a battery charger in the premises of their Staff Club at the Hong Kong Baptist University.

3.The whole of the evidence against the then 16 years and 10 months’ old appellant was contained in a written record of interview he made following his arrest by police some three months after the theft.

4.In that recorded interview, he admitted taking the phone because the battery in his own phone had run down.  He said he had subsequently lost the stolen phone.

5.Mr Xavier for the appellant advances a number of grounds of appeal but they can be conveniently subsumed under two headings :

(1)	the magistrate was wrong to accept PW1 (the investigating arresting and interviewing police officer) as a witness of truth,
(2)	and the magistrate was wrong to reject the appellant and his mother (who both gave evidence on the special issue only) as witnesses of truth.

6.As to the first complaint the whole of the prosecution case was based on the appellant’s record of interview.  There was no other evidence against him.  PW1 was the officer who conducted that interview.  He did so alone.  Accordingly, PW1’s evidence and his credibility was vital to the conviction.

7.Mr Xavier points to a number of aspects of the evidence of PW1 which he says comprised lies and evasions of a magnitude which so undermined his credibility as to make it unreasonable for the magistrate to have accepted his evidence.

8.The most important of these and the one primarily relied upon by Mr Xavier in argument revolved around the somewhat unusual fact that the appellant was not arrested for the present offence, committed on 25 October 2004 until 25 January 2005.

9.When PW1 was cross-examined as to why there was such a delay he gave inconsistent evidence as to whether the police knew the full name of the appellant on the day of the incident.  His evidence was as follows :

“	A.	The information that we had at the time was the phone number and the nickname of the suspect.  We did not know his full name.
	Q.	And?
	A.	In the end, we checked the registered owner from the phone number to know who that person was.  Subsequently, we found that the registered owner of the telephone was the defendant’s mother. …”

and later :

“	Q.	Now, can you get information of the defendant from the victim?
	A.	Later on — well, subsequently he said that he had asked — he’d asked his friends about his name and then he got to know his real name.
	Q.	Now, when is later on?
	A.	Well, I can’t remember.
	Q.	Well, did you take a statement from the victim?
	A.	Yes.
	Q.	When?
	A.	On the material date.
	Q.	On the material date?  And did he tell you the full name of the defendant?
	A.	Well, I can’t remember whether he did.
	Q.	Did the victim tell you he know the defendant?
	A.	Yes.”

10.He was then shown the witness statement of the victim which contained the appellant’s name.  The appellant was the only suspect as he was alone with the stolen phone in the clubroom of the university before it went missing.  PW1 after being shown the witness statement then said :

“

A.

Through other lifeguards, I got to know his real name was Cheung Wai-yin and his mobile number.”

11.And finally when he was directly asked why there had been a three-month delay in locating and arresting the appellant, he said :

“	Q.	So, officer, you know who the defendant was, and when did you make the arrest?
	A.	25 January.
	Q.	Two months down the road, two or three months — three months?
	A.	Yes.
	Q.	What stopped you from arresting him earlier?
	A.	Because we could not confirm his identity.  We only had his name.  We didn’t know who he was.”

12.It can be seen from the evidence of PW1 that his initial evidence that the information he had gotten on the day of the incident comprised only the phone number and nickname of the suspect (i.e. the appellant) was not correct.  It is that inconsistency in the evidence that Mr Xavier relies upon to establish his assertion that PW1 was caught out in a lie.

13.With respect to Mr Xavier, I believe he reads too much into the evidence in that regard.  PW1 was not caught out as suggested in counsel’s submissions by the contents of the victim’s witness statement and the reference to the appellant’s full name therein.  Rather when asked, before being shown that witness statement, whether the victim had provided the full name of the suspect, PW1 had replied that he could not remember whether he had or had not.  It was only then that the victim’s statement containing the suspect’s name was shown to him and he agreed he had been told the full name.  The evidence given by PW1 on its face is consistent with the officer having his memory jogged as the cross-examination proceeded.

14.There are other considerations in this regard.  The area of evidence which made PW1’s knowledge of the full name of the appellant relevant was the three-month delay in the appellant’s arrest.  Unusual though that delay was, it had little to do with the issues in the case, which revolved around the voluntariness of the appellant’s recorded interview, except by way of Mr Xavier’s suggestion that the delay was deliberate because the police in that period were unsuccessfully looking for other evidence against the appellant, and it was their frustration at the end of that period which led them to arrest the appellant and obtain admissions from him by force.

15.With respect that is pure speculation and does not take the matter any further.  It certainly provides very little of substance to explain why PW1 may have had a motive to lie on this issue.  In my judgment whether PW1 knew the full name of the appellant on 25 October 2005 or not was very much ancillary to the real issue at trial which was whether the recorded interview of the appellant was voluntary.

16.In those circumstances, from the face of the transcript and the lack of any motive for PW1 to lie about a matter which appears tangential to the real issues of the trial, the magistrate was justified in not regarding PW1’s evidence on this matter as undermining his credibility.

17.The other aspect of PW1’s evidence Mr Xavier alleges discloses a lie concerns his evidence about the appellant making phone calls at about the time of his recorded interview.

18.This followed upon PW1 being cross-examined on the allegation that the appellant had been denied his request to telephone his mother.  As the appellant was only 16 years and 10 months’ old at this time this was an important issue.

19.After denying what was put to him in this regard, PW1 said :

“

A.

Disagree.  I want to clarify something : defendant all along had his mobile phone with him during the course of the statement-taking.  During the course of statement-taking, he made a phone call.  I asked him who he was calling.

	COURT :	‘He had made phone calls and I asked him whom he was calling.’
	INTERPRETER :	‘… asked him who he was calling’.
	COURT :	Yes?

A.

So, I think his mobile phone would have records, and the mobile phone was registered under the name of his mother.

COURT :

Please wait.  Yes?

A.

At the time I asked him who he was calling, he said he was calling his brothers to ask for money to bail him out.”

and later when he was further questioned about the appellant’s possession of a mobile phone :

“	Q.	Yes.  So, did you search him at the restaurant where you arrested the defendant?
	A.	Initially, I did.
	Q.	What do you mean, ‘initially’?
	A.	Well, I had to see whether he had any offensive weapon on him.
	Q.	Was there any?
	A.	No.
	…
	Q.	Then did the defendant have a telephone with him at that time?
	A.	I can’t remember.
	Q.	You can’t remember?  Officer, you were looking for a telephone, weren’t you?
	A.	Yes.
	Q.	And you can’t remember if you’d seen any telephone?
	A.	Well, he had his own personal phone on him which was not the stolen property.
	…
	Q.	Now, did you take that telephone into your possession?
	A.	No.
	Q.	Why not?
	A.	Because that wasn’t the stolen property.
	Q.	Suddenly, you’re now very sure he’s got a telephone.
	A.	Yes, I can recall now.”

20.Mr Xavier’s primary allegation concerning the telephone is that whereas initially PW1 said the phone calls made by the appellant were made during the recorded interview, subsequently he changed his mind to say he was not sure whether they were made at that time.

21.Again on the face of the transcript, the evidence of PW1 in respect of this issue appears to get more certain as cross-examination progresses.  By itself that is not necessarily an indicator that the officer is lying as alleged by Mr Xavier.  It is consistent with his recollection apparently improving as greater detail is put to him.  That is a common phenomenon of truthful as well as untruthful witnesses.

22.I note also in this regard that PW1 offered an avenue by which his evidence could be checked.  That is his suggestion that the mobile phone records could be verified.  That is an unusual attitude for someone who wishes to hide evidence.

23.In my judgment the magistrate was also entitled to regard this passage of PW1’s evidence as not undermining his credibility. 

24.Mr Xavier advanced other areas of PW1’s evidence which he said, though not amounting to lies, showed PW1 to be an evasive witness.  I must disagree.  In my view those aspects of his evidence relied upon showed at the most an initial failure to remember, or to express himself clearly but were subsequently followed by adequate clarifications.  There is nothing to suggest he was being evasive.  There is more to suggest he was attempting to be helpful.

25.A separate matter is that in dealing with the evidence of PW1, the magistrate simply said :

“

8.

This officer was honest and straightforward in his evidence, and had tried his best to recall about the mobile phone, and other parts of his evidence.  From the account and demeanour.  I found him truthful and reliable.”

26.She gave no other reason for accepting PW1 as a truthful witness.

27.In HKSAR v. Pak Po Wah (1998) 4 HKC 632 Leong JA (as he then was) in delivering the judgment of the court allowed the appeal on the basis inter alia that the trial judge had not resolved inconsistencies in the evidence of witnesses whose testimony she had relied upon in convicting the applicant.

28.The question in the present case is whether the judge should have gone further than she did in giving her brief reasons why she accepted the evidence of PW1.  It must be said these were extremely spartan reasons for her accepting the evidence of an important witness but, on balance, I do not think she was required to say more.  The major inconsistency in PW1’s evidence involved his knowledge of the full name of the appellant on 25 October 2004.  As I say that was an ancillary issue and PW1’s evidence was not, on the face of it, a demonstrated lie.  The magistrate was not required to express detailed reasons resolving that inconsistency.  It is not every inconsistency in a witness’s evidence which must be resolved.  In my view the magistrate was not required to provide a detailed analysis of an inconsistency in a witness’ evidence on an ancillary matter where she was of the view, as she apparently was, that it stemmed from a failure of recollection.

29.The second complaint of Mr Xavier is that the reasons the magistrate gave for not believing the appellant and his mother were also inadequate and unreasonable.

30.In giving her reasons for rejecting the appellant’s version of events which, inter alia, was to the effect he had been beaten up by an unidentified police officer in a dark room and suffered painful and noticeable injuries, the magistrate said :

“	11.	The appellant’s account was incredible.  For example, before the interview, he was taken to a very dark room, and an officer who he could not see, came in and beat him.  If the room was really so dark that one could not see anything at all, then it would have been natural for him to look round when the officer entered, and he would have seen roughly what that officer looked like, in the light cast in from outside the room.
	12.	The officer elbowed his back many times, over 1-2 minutes, and that when his neck was pressed down so that his body was at 90 degrees, he was kneed in the chest 3-4 times, until he fell to his knees.  By his description, this is a vicious and painful assault, and I cannot imagine that one minute later, the appellant could have gone straight into an almost-2-hour interview without any problem.  With an assault like that, if his mother had not agreed to take him to hospital, there is no reason why he did not go himself — at 17 years old, he could have handled this by himself.
	13.	The appellant also complained that he wrote many answers because he was told to do so, and he was too scared to resist.  However, all the answers in the ROI were written by the appellant himself (not just signing after the answers), and if he had been reluctant to write any answer, it would have been very easy to make an excuse, even if he was scared.  From his account and demeanour, I found the appellant to be untruthful and unreliable.”

31.It may be that a different court would have placed a different emphasis on these aspects of the evidence, but it cannot be said, in my view, that the magistrate’s reasoning was wrong.  She rejected the appellant’s version on the basis she could not accept that over the period of time he was in the room where the assault took place, alone with the officer responsible, the appellant would not have seen something of that officer; that his immediate participation in an interview where he wrote all the answers to the questions asked seemed unlikely in terms of the contents of that partly dictated interview and that his mother’s refusal to take him to hospital should not have prevented him going himself.  Those reasons are logical and, in my view, in their totality are sufficient.

32.In approaching the evidence of the other defence witness on the special issue, i.e. the appellant’s mother, the magistrate said :

“	14.	… the appellant had complained that the police were crazy, that they kept on beating him.  Later, he pulled up his shirt for her to look, but she was angry and refused to look, and refused to take him to the hospital, because her daughter aged 11, had to go to school the next day.
	15.	I found it incredible that the mother would refuse to bring her son to the hospital, or even refused to look, and even if it was 10 or 11 pm at night, her daughter was already 11 years old.  From her account and demeanour, I found her unreliable.”

33.In my judgment, it cannot be said the magistrate rejected the appellant’s mother’s evidence without reason.  She did give reasons in this regard and in my view they were also adequate and rational.  This final complaint must fail as well.

34.The appeal against conviction is dismissed.

Ms Anthea Pang, SGC, of the Department of Justice, for the Respondent

Mr Albert R. Xavier, instructed by  Messrs Woo, Kwan, Lee & Lo, for the Appellant