Ng Wai Kuen v. The Queen

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 196 OF 1973

________________________

________________________

JUDGMENT

________________________

1.  This was an appeal against conviction on a charge of assault with intent to rob. The statement of findings provided by the learned magistrate was brief in the extreme and read as follows :

“ The first prosecution witness was an elderly Chinese gentleman who appeared in Court wearing a camera slung over his shoulder. This is the same camera which he alleged the defendant had tried to steal.

He gave a very clear and straightforward account of events on the tram and of the subsequent chase and capture of defendant. The two police witnesses confirmed his evidence regarding the alarm chase and capture.

The defendant gave a very different version in which nothing untoward happened apart from a minor dispute over whether or not a window in the tram should be left open. The defendant said that he left the tram and walked away from the tram stop and then realising he was late broke into a run.

This does not agree with what the old man and the two policemen say who all claim that the defendant ran away from the tram stop.

I am satisfied that the defendant knew he had been caught in the act of trying to lift the camera from the old man and also that he was fully aware he was in danger of being apprehended and made a bolt for it.  On the evidence I had no hesitation in finding the charge proved beyond reasonable doubt, and I convict the defendant.”

2.  The amended grounds of appeal were likewise brief in the extreme and read as follows :

“1. that the conviction is bad in law in that the learned magistrate did not find that the appellant assaulted LI Yin-chung with intent to rob him or otherwise;

2. that the conviction was against the weight of evidence.”

3.  I must confess to a feeling of irritation when I first read the grounds of appeal as the first of them appeared to show no merits and to savour of quibbling while the second failed to pinpoint any ground of complaint.  This feeling of irritation was not immediately allayed when counsel for the appellant opened the appeal, in that he referred particularly to the use by the learned magistrate of the expression “the defendant knew he had been caught in the act of trying to lift the camera from the old man” and suggested that the use of these words implied stealth rather than a finding that force had been used.  Counsel for the appellant, however, argued that the statement of findings was far from adequate.  He referred to Section 114b of the Magistrates Ordinance and suggested that it was impossible to gather from the statement of findings what facts were found by the learned magistrate and urged that at most they amounted to a finding of attempted theft.

4.  Having regard to the unhelpful brevity of the statement of findings, I found it essential to examine in detail the evidence of the witnesses for the Crown. That of the first prosecution witness as given on examination-in-chief was, as the learned magistrate said, clear and straightforward, he alleged that at 9.45 a.m. on the 29th January 1973 he boarded a tram in Shaukiwan going in the direction of Central Market.  He sat on the upper deck on the outside of a double row of seats nearest the staircase.  Sitting beside him on the seat nearer the window was a lady.  The whole upper deck was packed.  The learned magistrate’s note of his evidence continues :

“When tram arrived stop near Daimaru and continued to Tin Lok Lane, the defendant tried to get my camera from me. Defendant is man sitting in Court. He was standing beside me. He was trying to snatch my camera. I saw a police car and called out. Hearing this defendant got away …. Defendant first tried to snatch from the back at same time hitting my back with his left hand but when I yelled he ran away. When defendant tried to get away all people on deck yelled and two policemen in street heard and came over to tram. I also followed defendant. Tram arrived at stop at Tin Look Road near Tonnochy Street where both of us alighted … After alighting at tram stop, defendant ran and I also ran after him with police. He turned into Wanchai Road nad near flight of stairs and ran for about two tram stops and was caught by several pedestrians.”

5.  The appellant was not represented in the court below and his cross-examination as recorded by the learned magistrate was neither clear nor straightforward.  It reads in part most peculiarly :

“Q. I did not hit you.

A. Yes.

Q. Why didn’t you see a doctor.

A. At time too excited to feel pain which came on some days later.

Q. I didn’t even touch the camera let alone tried to snatch it.

A. If you didn’t snatch camera why did you run ?

Q. I just got down from tram to fetch son from school.

A. I ran after him he ran and was eventually caught by police.

Q. My son left school early and when I arrived by tram I was late so ran across road. When I was caught by police my son was already there.

A. What time did son get out of school ?

Q. He left school between 9 and 10 a.m. He finished examination paper early.

A. You ran because you were frightened and not because you wanted to fetch your child from school.

Q. Why did police take my son to police station ?

A. The stop where he alighted not right stop nearest son’s school.

Q. Did you hear me explain to police I went to collect my son?

A. Yes.

Q. Did I fetch my son ?

A. Yes, there was a child.

Q. I did not snatch anything from you.

A. You did try to snatch.”

From this extract it will be seen that the attitude of this witness to cross-examination was argumentative.  Indeed the witness appears to have been permitted to indulge in as much cross-examination as does the appellant !

6.  The second witness for the Crown was a police constable 8999 who stated that there was a person on the upper deck of the west-bound tram who stretched out his hand and yelled at them “snatching”.  It should be noted that this police constable stated that he was on foot patrol.  His evidence-in-chief continues :

“I recognise that man as P.W. 1. The tram stopped at tram stop.  P.C. 12662 and I went across road to see what happened.  I noticed people alighted from front exit of tram and two persons were running in street.  Those two persons one of them had shouted snatching the other we caught him he was person who tried to snatch.” (I would note in pausing that whatever else this police constable may have seen, he did not see anyone trying to snatch.)  “P.W. 1 was running.  He was behind that person being chased.  I followed chasing after them.  I caught up with one running away in Wood Road near Wanchai Road.  I recognise that person he is the defendant.  I ran for about 10 mintues before I caught hold of him.  After I caught defendant, P.W. 1 later arrived telling me this is the person who tried to snatch thing from me and hit me in tram.”  (I would again pause to remark that this is the clearest hearsay evidence and could scarcely be regarded as part of the res gestae and there was no evidence as to whether or not when P.W. 1 spoke to P.C. 8999, he spoke in the Punti Dialect or Shangtunese in which he was sworn nor was there any evidence given as to anything that the accused may have said immediately in answer to that charge.)

Perhaps not unnaturally the first question that the appellant asked this witness in cross-examination was :

“Q. You didn’t run for 10 minutes.

A. Yes..  I did.”

The cross-examination of this witness continued in so far as is relevant to this judgment as follows :–

“Q. Did I tell you I was not a thief but a driver?

A. Yes.

Q. I told you I ran to pick up my son who was waiting for me on the road.

A. Yes you said so.

Q. Were there 3 P.C.s. standing by my side P.C. 11487, 12662 and yourself?

A. Yes.

Q. Did I say I wanted to fetch son?

A. Yes.

Q. Did your colleague pick up my son ?

A. Yes.”

7.  The evidence of the third prosecution witness P.C. 12662 to some extent corroborated the evidence of the second prosecution witness.  A material portion of his evidence-in-chief read as follows :

“I heard someone shout ‘snatching’ in west-bound tram. Both of us looked and saw tram stop at tram stop. I saw people running towards Wanchai Road. There were two or three persons running. P.C. 8999 and I chased in same direction. When we reached a lane in Hennessy Road near petrol station we asked passers-by whether someone was snatching things and as reply in affirmative we chased after them.” (We again have the clearest of hearsay.) “Both of us caught up with defendant near Wood Road in Wanchai Road. We picked defendant because people pointed at him and we chased after him. Soon after we caught defendant P.W. 1 arrived and said he was person who tried to rob him in a tram. Defendant said he was in a hurry to pick up son from school. We had already rung for transport. After his child was picked up from school he was also brought back to police station.”

Two very material questions were asked of this witness in cross-examination and his answers are most odd, if the evidence of the first two witnesses is to be accepted :

“Q. Did I explain I was running to fetch child from school ?

A. You did explain but I didn’t know whose version correct.

Q. Did defendant know he was being chased ?

A. I don’t know but when I saw him running I ran after him.”

8.  The appellant elected to give evidence and was sworn.  He said he was late in fetching his son from school after an examination that he boarded the tram at about 9.50 a.m. and went to the upper deck which was so crowded that there was not even space for standing.  He gave evidence of a quarrel which he had with the first witness for the prosecution as to the opening of a window in the tram, stating that the first prosecution witness wanted to close the window and he told him in Cantonese that the air was filthy and he wanted to open the window.  Later the old man shouted at a passing police car.  In due course he alighted in the ordinary way at a tram stop and realising he was late to meet his son who expected out from the examination he commenced to run.  He was, he stated, unaware that any suggestion of snatching had at that time been made against him until he was stopped by a pedestrian who said he was snatching things.  While he was talking to the pedestrian denying this accusation, the police officers came up to him.  One of them said :

“Someone said you had a knife. Is that true ? ”

When the evidence is examined in extenso it appears to me to be clear that the statement of findings is, to say the least of it, sadly deficient.  The learned magistrate implied that he believed the evidence of the first prosecution witness and of the two police witnesses.  He implied that he disbelieved the evidence of the defendant.  He does not however examine the evidence of the witnesses for the prosecution nor does he examine at all the evidence given by the defendant which was certainly verified in one material particular, that is, that the defendant was at the relevant time going to pick up his son who was waiting for him outside his school and who was subsequently brought to the police station.  To this the learned magistrate does not allude at all.

9.  In MA Kwai-chong v. The Queen^([1]) Huggins J. dealt with the requirements of Section 114 of the Magistrates Ordinance.  He states :

“What is required is a statement of findings, and nowhere does it say that the magistrate is required to give reasons for his findings. He has to give ‘other grounds’, which I take to mean the reasons in law upon which he bases his decision. I accept that the learned magistrate may have worded his statement rather briefly. To start with, he rejected the evidence of the defence ‘in toto’. If one takes that at its face value, it means he did not even believe the defendant when he gave his name. I think that quite clearly what the learned magistrate meant was that he rejected, or did not believe, the substance of the defendant’s story. He then says that he was satisfied beyond reasonable doubt that the defendant was arrested because of what he did. That, again, is not a clear finding of facts which would justify a conviction, but it so happens in this case that at the time when he convicted the appellant the magistrate recorded in writing the reasons for his decision and in that decision he said : –

‘I am satisfied beyond reasonable doubt that the defendant was in possession of the two parcels of dangerous drugs as menationed in the charge.’

In my view that can only be interpreted as a finding that the evidence given by the prosecution witness to the effect that he saw the appellant take the packets and place them between the grille and the door was true.”

Huggins J. goes on, however to say :

“I think that, read fairly, the decision and the statement of findings filed under the statute do sufficiently show that the magistrate was finding facts which justified a conviction. I do not say that in every case it is unnecessary for a magistrate to state why he believed a certain story. It may be that he comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding of fact was unsafe and may therefore quash the conviction. But I do not think that this is such a case.”

The duty of a tribunal to evaluate the evidence given before it is also dealt with by the Full Court in the case of LAM Tin-chung v. The Queen^([2]).  In delivering the judgment of the Full Court Mills-Owens J. stated :

“Obviously a tribunal must evaluate the evidence before it, and in the case of oral testimony must weigh it in the context of other salient circumstances. But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, required no less. Certainly there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything , than say which of the witnesses it believes. that, however, is not the type of case we have in mind.”

Mr. Duckett on behalf of the Crown urged that this was a case where the learned magistrate was left with a direct choice between the evidence of the first witness for the prosecution and the evidence of the defendant.  He further urges that the learned magistrate in the course of his statement of findings amply indicated that he accepted the evidence of the first witness for the prosecution and rejected that of the defendant.  With this latter contention I would agree.  Although lamentably brief the statement of findings does imply that the magistrate believed the first witness for the prosecution and disbelieved the defendant. Equally, I am not impressed with the argument advanced on behalf of the appellant that all that the statement of findings discloses is that the appellant had been guilty of attempted theft.  The learned magistrate knew full well that the appellant had been charged with assault with intent to rob.  It was this charge that he found proved beyond reasonable doubt.  I do not, however, agree that in this case there were “no accompanying factors or features to aid in coming to a decision” other than a direct choice between the evidence of the first prosecution witness and the appellant.  There were what were to my mind two most important accompanying factors or features.  Firstly whether the appellant knew he was being chased as he ran; a matter as to which the third prosecution witness was, to say the least of it, uncertain.  The evidence of the second prosecution witness that he chased the appellant for about 10 minutes contrasts oddly with the evidence of the third prosecution witness that the distance was about 400 yards.  To my mind, however, the vital accompanying factor is the fact that the appellant was going to meet his son. It is common case that he did meet his son.  It is common sense that his son was waiting to meet him and to my mind it is clear from the findings that the tribunal did not evaluate that evidence  which was before it nor did it make it apparent that such an evaluation has in fact been made.  It is most unlikely, to my mind, that the man going to fetch his son would on the way engage in an attempted robbery or in an assault with intent to rob.

10.  To adopt the words of Huggins J. quoted above, it appears to me that the learned magistrate has come to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and since he does not give reasons for so doing which commend themselves to me, I consider that his finding of facts was unsafe and therefore that I must quash the conviction.  I would finally wish to remark that I fully appreciate the stress under which magistrate work when compiling their statements of findings perhaps more than a month after a case has been heard.  I would the last to require of them a parrot-like list of the facts which they found in the usual simple case before arriving at a conclusion of guilt nor do I suggest that the statement of findings required of a magistrate should “come as near as possible to what would be expected in a summing-up in a case before a jury”.  An observation to this effect was made by the court with reference to the grounds of decision of a District Judge in LAM Tin-chung’s case but I doubt if that court would wish that observation to be extended to magistrates’ statements of findings the requirements as to which appear to me to be amply indicated in the views of Huggins J. which I have quoted.

R. Tang (H.H. Lau & W.S. Lo) for Appellant.

Duckett, S.C.C. for Crown/Respondent.

([1]) 1968 H.K.L.R. 654

([2]) 1970 H.K.L.R. 105.