The Queen v. Wu Feng

CACC001124/1982

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 1124 of 1982

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Between

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Coram: Hon. Penlington, J. in Court

Date: 8th February, 1983

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JUDGMENT

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1. This is an appeal against conviction in respect of a charge on which the appellant was convicted in October of last year, the theft of a lipstick from Watson's Shop in Ocean Centre on the 23rd of September. There were two witnesses called by the Crown, one was a Store Detective employed by Watson, the other one was a Police Constable who was summon to the scene after the Store Detective has detained the appellant.

2. The grounds of appeal are the magistrate was wrong when he dismissed the evidence given by the Constable as being unreliable when in fact it supported to some extent the appellant. While in other respect it did not, nevertheless, he should have paid attention to that evidence and if he had done so it must have raised a doubt in his mind. It is argued that if the magistrate gives reasons for not accepting a witnesses evidence those reasons must be supported by the evidence and here they are not.' Therefore the conviction is unsafe and unsatisfactory.

3. The evidence of the Constable was brief. He arrived at the shop, met the Store Detective who took her to a rest room where the appellant was pointed out. He had previously been told what had happened by the Store Detective. He then confronted the appellant and she then denied stealing the item. After that, he took both the Store Detective and the appellant back to the Police Station. He was submitted to cross-examination and there is inconsistency when he was asked whether the appellant had said she had never left the store when she was apprehended and first of all he said that she did not say that and then very soon afterwards he said she did say that. That was of course the crucial point in the evidence because if the appellant had been arrested outside the store it must mean that her evidence is to what happened was untrue, her defence being that she had never left the store and before doing so she intended going to a cashier to pay for the lipstick. That is however the only inconsistency apparent on the record.

4. Mr. Duncan argues for the Crown that the magistrate was entitled to look at the Constable's evidence and decide whether he could accept it. He had decided that it was not reliable evidence and he simply dismissed it. Mr. Lee says on the contrary that having stated in his findings that it was "inconsistent and contradictory as to questions and answers raised in chief and in cross-examination" that if in fact that is not so and is not supported by the evidence then the magistrate has mis-directed himself. I have been referred to two judgments, the most recent one is Bux & others v. The Queen (1) where the whole question of what is the duty of the Magistrate and District Judges has been gone into some detail. When a judge or magistrate has elected to state his reasons for believing or dis-believing the witness and it can be shown that those reasons cannot be supported by the evidence an Appeal Court is entitled to upset the finding of fact notwithstanding that the general principle which has been stated so often is that such a finding is essentially for the trial court.

5. Here, however, I am quite satisfied, having read the evidence given by the Police Constable, that the magistrate was entitled to come to the conclusion that he could not rely on that evidence. This evidence which supports to some extent the evidence of the Store Detective and to some extent the evidence of the appellant. The magistrate having heard that evidence stated found it so "inconsistent" and "contradictory" that he could not place any weight on it. It is true that the record shows the only major inconsistency is on the question of whether or not the appellant denied leaving the store before she was apprehended, but that was a very important point. However the magistrate heard the manner in which the Constable gave evidence; we have not. I have no doubt that, faced with conflicting evidence from the Store Detective and the appellant he would have welcomed some independant evidence which may have helped him in evaluating that evidence. He decided that independent evidence, and I would so regard it even though the constable was a Crown witness, was unreliable it would not assist him either way. I can't say he was wrong in so doing.

6. That being so I don't think the magistrate has misdirected himself as to the weight he can place on the evidence of the Constable and it then became essentially a matter of whether he was left in doubt having heard the evidence given by the Store Detective and by the appellant. He says in no uncertain terms that he did accept the evidence of the Store Detective and found her a very impressive and honest witness while he found that the appellant was an "accomplished" witness nevertheless he did not believe her. That was a clear finding of fact which he was entitled to come to and I see no reason why I should interfere it. The appeal against conviction will be dismissed.

7. Counsel for the appellant has not argued the question of sentence and the appeal against the sentence is therefore also dismissed.

(1)    Criminal Appeal No. 756 of 1981

Representation:

Duncan C.C. for Crown.

Martin LEE, Q.C. & Cheng Huan instructed by Kwong &Lam for the Appellant.