Yu Fuk Kiu v. The Queen

CACC001140/1982

Criminal Appeal No. 1140 of 1982

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

BETWEEN

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Coram: Hon. Liu J.

Date: 29 December 1982

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JUDGMENT

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1. This is an appeal from the decision of the learned Magistrate, whereby the appellant was convicted and fined and an order for confiscation was made.

2. The subject-matter of the charge arose as a result of a shopping expedition by the appellant in the evening on the 17th of August in the Park’s Shop premises. The appellant was allegedly kept under observation by the security guard positioned close to her. According to the security guard, the appellant adopted a course which was not without unusual features. She was seen taking a towel from the display and pouring water into a plastic bag after she had put the towel into it. She was also seen to have taken the label off the towel and thrown it onto the ground before she went through this operation which comprised a series of maneuvers.

3. The appellant gave evidence before the learned Magistrate. She denied any of these alleged activities said to have been witnessed by the security guard. She was convicted and fined by the learned Magistrate with an order of confiscation made against her. The appellant appealed on the ground that there was no or no sufficient evidence to found such conviction. On leave granted by the court, three further grounds were advanced. Counsel fairly conceded that the original ground of appeal could not and was not to be pursued.

4. The first additional Ground of Appeal involves the burden of proof. It was argued on behalf of the appellant that the learned Magistrate failed to recognize or apply the well established concept that the legal burden remained throughout on the shoulders of the prosecution and would never shift. In particular, counsel relied on a sentence in the Statement of Findings of the learned Magistrate that comes at the end: "I did not believe her and I convicted her accordingly". It was sought to be shown that the learned Magistrate was shifting-the burden onto the appellant for disproving the charge laid against her. It is a notable fact that a Statement of Findings, in almost every case, is made quite some time after the conclusion of the trial, and it must be read fairly, in its proper context and with the contemporaneous notes of the trial Magistrate and further, in this case, in conjunction with the recorded final submissions of counsel. At page 17 of the record of appeal, a note of the submission of counsel, Mr. Ismail, was taken by the trial Magistrate, vie. the prosecution had failed to establish the charge against the appellant beyond reasonable doubt. In his extempore decision as recorded on the same page, the Magistrate proceeded with a resume of the evidence of the security guard and then of that of the appellant. He saw fit to put on record that he had taken care in his deliberation on the evidence, that must mean the totality of the evidence. Then he stated that he accepted part of the evidence given by the appellant but rejected her version contradictory to that given by the security guard. Finally, he concluded that he found the charge proved.

5. It has never been suggested that there was any confusion of the burden of proof in the format of the decision as recorded by the learned Magistrate at the trial. However, in the Statement of Findings, the narration of his assessment of the evidence was re-arranged in an uncommon sequence which differs somewhat from his mental process at the conclusion of the trial as reflected in his notes at page 11 of the record of appeal. Taking both into consideration, and even on a fair reading of the Statement of Findings alone in its proper context, in the end I am unpersuaded that the learned Magistrate did err in the fundamental principle of burden of proof.

6. Next I turn to additional Ground 2. Much play was made of the Statement of Findings of the learned Magistrate, highlighting the sentence "However I was satisfied that the appellant took the towel dishonestly that day". Thus, so it was submitted, there seemed to be some indication in the unqualified use of the word "satisfied" that the learned Magistrate did not apply so basic a concept as the standard of proof being beyond reasonable doubt. Returning to the contemporaneous notes taken by the learned Magistrate, at page 11 of the record of appeal, it can be seen that counsel then for the appellant placed great emphasis on the failure of the Crown to establish guilt beyond reasonable doubt and that the learned Magistrate concluded his recorded decision on the same page by finding the charge proved against the appellant. On a fair reading of the Statement of Findings of the learned Magistrate in conjunction with his contemporaneous notes, it cannot, in my view, be said that the court had not completely satisfied himself, on the higher standard of proof, with the essential elements in the charge which the appellant then faced.

7. The last additional ground was sought to be supported by an alleged misapprehension of the principle of corroboration. It was common ground that the evidence of the security guard would require no legal corroboration. It is equally trite law that corroboration will first have to come from independent testimony. Furthermore, it is reasonably clear from the evidence adduced before the learned Magistrate that there was nothing, apart from the evidence of the security guard, to associate the label with the towel in question or with any of the remainder of the exhibits. The trial Magistrate clarified the word "exhibits" as meaning exclusively the label. On a fair reading of the Statement of Findings of the Magistrate and his decision as recorded at page 11 of the record of appeal, it would seem that what he was in fact commenting on was that the case against the appellant including her peeling off the label was complemented by the production of the label, which was a supplement to the evidence given of his visual observation. The use of the word "corroboration" was certainly uncalled for. Corroboration was not required in law, and there was overwhelming evidence by the security guard of his observation of the appellant at close quarters to support the conviction which I can find no justification for disturbing. In the result, I am unable to find any ground of appeal as having been substantiated despite the very helpful arguments so very ably advanced by counsel who has said all there is to be said for the appellant. I order that the appeal be dismissed and the conviction, -confiscation order and the sentence to stand.

Representation:

Mr. Bokhary instructed by Messrs. Alexander Tsang & Co. for the Appellant

Mr. Nicholas, Counsel for the Respondent