Cham Kam Sum and Another v. The Queen
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CACC000968/1982 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 968 of 1982 ___________________ Between
_______________ Coram: Penlington, J. in Court Date: 24 November 1982 ___________ JUDGMENT ___________ 1. This is an appeal against a conviction of a somewhat minor charge of theft in that the said property is a piece of wooden board which was valued at $60,00. That possibly is a somewhat generous estimated of its value. 2. At the conclusion of the prosecution's case which consisted of the evidence of the two arresting police officers plus the owner of the board the magistrate then added a further charge under Section 30 of the Summary Offences Ordinance relating to a pair pliers and a chisel which were alleged also to have been found on the defendants when they were arrested. That charge is one of unlawful possession of property where the defendants are unable to give a satisfactory explanation for their possession. It is conceded by the Crown, quite properly, and in accordance with the conduct of appeals which we have come to expect from the Crown that that conviction on the second charge cannot stand because, inter alia, the defendants were not ask to plead to it and they would not be given an opportunity to recall and further cross-examine the prosecution witnesses. 3. This was a fresh charge not an amendment but I think it is quite clear that the provisions of Section 27 of the Magistrates Ordinance applied if anything even more in cases were fresh charge is laid than when charges amended. The correct procedure was not followed and the appeal against conviction on charge H must be allowed. (Yeung Chiu v.R. Crim. App. 1043/75. Chan Kam-chau v.R. 1971 H.K.L.R. 383) That being so I need not go into the question of whether the magistrate was entitled to add a fresh charge at all, though in the circumstances of this case I have considerable doubt. (See Tsang Wood-ming v.R. Crim. App. 829/80). 4. In relation to the charge of theft various grounds have been argued to show that it is unsafe and unsatisfactory. I have never been able to understand how a charge can be safe but unsatisfactory or unsatisfactory but safe - nevertheless, that is the phrase which is now deeply enshrined. 5. There are two aspects which do cause me some concern. The first is that evidence which given of an oral statement made by one of the defendants to the arresting constable. The evidence was that he said "I took it for my hawking. Give me a chance". This was not recorded in the officer's note - book. Where an admission is made I think the defence is entitled to know whether or not the magistrate does intend to place any weight on it. The note in the magistrate's record is
Nothing further was said about in this statement and while on the face of it one could perhaps assume this meant that the magistrate did not place reliance on it and in his finding he does not appear to have done so. Nevertheless I think this was unsatisfactory. There should be a clear statement that either that admission was going to be considered or it was not. 6. The second matter is that the board itself was returned to its owner Mr. KWAN Sik and a photograph was produced by one of the constables. There was no objection at the time to the production of the photograph and perhaps it could be assumed at that state that the defence was satisfied that it was in fact a photograph of the board returned to Mr. Kwan Sik but there was no evidence given as to how the photograph was taken, where, when and by whom. Later, when objection was taken, the magistrate does not seem to have made a ruling. In his statement of findings however he said it was withdrawn from evidence though it does seem that it remained on the file. This was an important piece of evidence because it was the photograph that Mr. Kwan identified as showing his particular board and it was the defence case that the board was in fact the property of the defendant's sister. I think again there should have been a ruling at the time as to whether the photograph was to be admitted and on what basis. 7. Mr. Dick for the Crown, quite properly, that this case depended essentially on finding of fact and it has been said over and over again that a Court of Appeal should not interfere with findings of fact. The findings of fact are brief and are all embracing. The magistrate simply says that he accepts the prosecution evidence and he rejects that the defendants and their witness. Reading through the evidence of the defendants and their sister one certainly could not disagree with that finding. Nevertheless the findings do not deal with the points mentioned and in particular to the somewhat equivocal way in which the verbal confession was left. 8. There is another aspect to the matter which I do certainly find unsatisfactory, although it is no fault of the magistrate. This is very minor offence which was alleged to have been committed in October 1981. The matter did not come on for trial until almost a year later. That is unfortunate to say the least when a minor matter such as this takes so long to come to trial. I find the conviction is unsatisfactory and the appeal will be allowed, the convictions quashed. The fines and costs are to be remitted.
Representation: J.W. Dick, Counsel for the Crown, Gunston (Hampton, Winter & Glynn) for both appellants. |