HKSAR v. Chiu Mei Kwan

[English Translation – 英譯本]

HCMA 71/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 71 OF 2013

(ON APPEAL FROM ESCC 2921/2012)

------------------------

R E A S O N S   F O R   J U D G M E N T

1.The appellant was charged with one count of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210, Laws of Hong Kong. The appellant pleaded not guilty and was convicted after trial by Deputy Magistrate LEUNG Wing-chung, Winston sitting in the Eastern Magistrates’ Courts.  She was sentenced to a Community Service Order for a duration of 100 hours and was ordered to pay compensation in the sum of $11,200.  The appellant appealed against both conviction and sentence.

2.After hearing, I allowed the appeal, quashed the conviction and set aside both the sentence and the compensation order.  My reasons are set out below.

The facts

3.In her written submission, Miss Samantha Chiu, Senior Public Prosecutor for the respondent, set out the case of both the prosecution and defence. Basically I adopted the case as set out by Miss Chiu.

Prosecution case

4.In February 2012, Mr. Li purchased a sofa for $450 from a female who called herself Ms Yeung on an online second-hand furniture auction site.  Ms Yeung provided a mobile phone number to Mr. Li, with which the two of them contacted each other by way of SMS.  In addition, Ms Yeung provided Mr. Li with a bank account number, requesting Mr. Li to transfer the money into that account.  After the transaction, Mr. Li kept the telephone number and the bank account number provided by Ms Yeung in his mobile phone.

5.In April 2012, a relative of Mr. Li’s fell ill and needed money to buy medicine.  Mr. Li’s elder brother asked Mr. Li for the relative’s bank account number for transfer purposes.  Mr. Li gave his elder brother the bank account number provided by Ms Yeung by mistake, causing Mr. Li’s brother to mistakenly deposit a sum of $11,200 into the bank account provided by Ms Yeung.  When Mr. Li and his elder brother found out about the problem, Mr. Li immediately dialled Ms Yeung’s phone number.  The male who answered the call promised to inform Ms Yeung. However, Mr. Li had had no reply all along.  Mr. Li phoned Ms Yeung again.  The male who answered the call claimed that Mr. Li had dialled the wrong number. Mr. Li sent a number of SMS messages to Ms Yeung’s phone number, requesting the other side to return the money.  However, there was generally no reply except for once when the other side indicated “Do not call again, this phone [number] is not [of someone] surnamed Yeung”.   

6.Mr. Li reported to the police for help.  Investigations showed that the bank account concerned was held by the appellant’s mother.  The appellant’s mother indicated to the police that after she opened the account, it was given to the appellant for her use. The appellant was arrested.  The police conducted a record of interview with the appellant.  Under caution, the appellant pointed out that the $11,200 involved in the case was the balance of the payment for a portable computer Mr. Li bought from her.  The appellant claimed that the portable computer was a gift from an admirer whose personal particulars and means of contact were, however, unknown to her.

Defence case

7.At trial, the appellant did not dispute the voluntariness or accuracy of the record of interview.  The appellant elected not to give evidence but called her mother’s elder sister as defence witness.

8.The elder sister of the appellant’s mother said in evidence that she had seen a teenager drive the appellant home in a private car.  Later, she found an expensive portable computer on the appellant’s writing desk.  Out of concern for the appellant, she intended to inform the appellant’s mother, thus in around 2011, she took 5 photographs of the said portable computer.  However, she had not seen the computer since February 2012.

Grounds of appeal

9.The appellant was unrepresented at the hearing on 15 August 2013.  Transcripts of the proceedings were required in support of the grounds of appeal raised by the appellant at the time.  She asked for an adjournment so that she could set out her grounds of appeal in detail after obtaining a copy of the transcripts of the proceedings.  I therefore adjourned the hearing.

10.Mr. Cheung Man-fai, Jeremy of counsel, assigned by the Department of Legal Aid, acted for the appellant in her appeal against conviction at the hearing on 20 December 2013.

11.Mr. Cheung raised several grounds of appeal to contend that the conviction was unsafe.  Basically, Mr. Cheung submitted that the Magistrate was overly enthusiastic in engaging himself in the prosecutor’s examination-in-chief and cross-examination and that he kept questioning the purpose and intention of defence counsel’s cross-examination, thus rendering the trial unfair.

12.In addition, on the elements of the charge, Mr. Cheung raised issues arising out of matters that included when the appellant’s act of appropriation did constitute theft and the fact that the appellant herself was not the account holder.

Concerns raised by this Court

13.I have had the opportunity to read the full transcripts of the trial proceedings.  What concerns me most, in my opinion, is that the magistrate kept interrupting the defence counsel while the latter was making final submission on whether “appropriation” was supported by the facts of the case, and also on the relevant law and authorities on the “appropriation” of choses in action. Counsel for the defence specifically submitted that there were no authorities with similar circumstances to this case, i.e. “the defendant has used the account of a third person.” (p.184 N of the appeal bundle)

14.The magistrate said the following from p.186 O to p.187 D:

“Court: I think I will pause here.

Mr. Ting: Yes.

Court: Mr. Ting.

Mr. Ting: Yes.

Court: I think such legal submission of yours is a complete deviation, I think it is very hard for you to…if you…that is, anyway, hardly any lawyer would accept such submission.

Mr. Ting: Yes.

Court: Well, however, this objective situation, I think it’s now lunch time, take your time and think about it again carefully.

Mr. Ting: Yes.

Court: You made such comparisons using those words, hers was, that is to say, this reduction or taking away, this was a mode of her appropriation.

Mr. Ting: Yes.

Court: It’s the mode in that case.

Mr. Ting: Yes, yes.

Court: What are the objective facts of this case?

Mr. Ting: Yes.

Court: A sum of money that did not belong to her had been deposited into her account.

Mr. Ting: Yes, yes.

Court: [It] remained there, plus she would not take it back out.

Mr. Ting: Yes.

Court: She even said the money was hers, well, she didn’t want to take it back out, now this appropriation you [are talking about], that is to say, there must be an act usually.” 

pp.187 P to 188 B:

“Court: Well, then you…but the way you, if [it] works, you should have simply got on your feet once the prosecution case was closed to say there’s no…no case to answer, because that simply was the case, the money was placed there without being moved, but then there is evidence that attempts were made to look for her, she was unwilling to give [back the money], “I even say the money is mine”, that is to say she did not admit, well, such acts, if it was actually so at the start of the case.

Mr. Ting: Yes.

Court: I made a mistake when I looked at it at the time, now I know it’s not mine, can see the evidence, I will take it back out, this case could probably have ended this way, who knows, now you are still insisting, still saying that it had come from the sale of this--sale of this computer, I look here to see whether there is dishonesty, whether she dishonestly appropriated property of another person, here’s where I look, you could say, “I got it wrong at the time, I thought it was [mine], but now that there is such evidence to say that it really isn’t [mine], I now give [it] back to you.”  Well, I could [have] many--it’s for you to take your time and read it yourself.

Mr. Ting: Yes.

Court: But I also need to tell you all the questions I have here for you to…

Mr. Ting: Understand, understand, yes.

Court: So that you could deal with them.

Mr. Ting: Yes.

Court: It’s very hard for such legal arguments of yours to stand.”

The magistrate further said in line G:

“Court: That is, I want to say, you don’t need to waste further time on this aspect.”

Later, after lunch, defence counsel tried to make submission on choses in action.  He pointed out the evidence of the appellant’s mother (PW4) showed that the account was jointly used by the mother and daughter. He also gave an example to say what would happen if A and B were in the same car. The magistrate said (pp. 189 L to 190 S):

“Court: So you want the mother prosecuted too?

Mr. Ting: I want to say that on this level, on those facts, the prosecution….

Court: The whole case concerns the daughter, it has nothing to do with the mother.

Mr. Ting: Yes, I …

Court: What you are saying means that the mother will have to be added too?

Mr. Ting: My main focus now is...

Court: It’s because she is the account holder.

Mr. Ting: Your worship, there is only one defendant in the--this case.

Court: Now from start to finish, you people have been saying that the transactions were between the defendant and others.

Mr. Ting: Yes, your worship…

Court: That’s why there is no basis for you to bring the mother in as well this way.

Mr. Ting: Your worship, there is only one defendant in this--this case, however, in [respect of] this account, there is one holder, as well as a daughter, the account was jointly used by two people, well, from start to finish, there is only one defendant in this case, well, under the circumstances, one account shared by two people, from the prosecution’s point of view….

Court: In the whole case, the defendant’s transactions in the account, the defendant does not dispute that that part [ i.e.] the sum of $11,000 was handled by her, she did not return [it], right[?] She carried out the transaction, right [?]

Mr. Ting: She--your worship, in a while…

Court: The mother has nothing to do with it, right [?]

Mr. Ting: In a while, I will mention, well, mention dishonesty, whether…

Court: That is to say, you don’t know whether it’s the mother or the daughter who is guilty?

Mr. Ting: That’s not [the case]. Basically, that is to say, suppose--an example is that A and B are in a car which has dangerous drugs inside.

Court: Forget about examples, don’t talk about those examples, you yourself do--you are just talking to yourself, so many examples of yours, talking about this case now is enough already.

Mr. Ting: This case…

Court: You say there is a person, there is a car, two people have dangerous drugs, well, you yourself are going round in circles over this thing, looking for trouble. You talk about this case, talk about this case [which is] very clear, one account, used by the daughter, now there is no dispute that it’s the daughter who carried out the transaction with others from which the sum of money was obtained.

Mr. Ting: Yes, this is the prosecution…

Court: It had nothing to do with the mother.

Mr. Ting: This is the defence’s …

Court: Well, it’s all very clear.

Mr. Ting: Yes.

Court: Well, why then do you still need to answer your own questions with those examples of yours?

Mr. Ting: Yes, your worship, the legal burden is on the prosecution to establish appropriation, appropriation, and this appropriation thing, that is to say, in [respect of] this account, the burden of proof is on them to prove when it was in fact that…

Court: Then your mother can come up, “I took [it], you are prosecuting the wrong person”, can’t she?

Mr. Ting: Then when was this? Was it the mother or was it the daughter who committed this act of appropriation?

Court: Well, you will have to sort out you people’s logic first, firstly, [if] you don’t admit to have received it, you can say you don’t admit. But now that you admit the daughter did receive it, once you called the aunt too, saying that she had sold the computer, otherwise having that part would be meaningless [sic].

Mr. Ting: Your worship, that sum of money was deposited into an account held by her mother.

Court: It was used by her.

Mr. Ting: It was the mother’s account that received this sum of money.

Court: Yes.

Mr. Ting: Well, in this case, her daughter…

Court: We are now talking about possession, whoever has physical possession will suffice, [we are] not talking about legal possession.

Mr. Ting: Your worship, in…

Court: I understand what you are saying, that is to say the account is that of two persons.

Mr. Ting: Yes.

Court: Either both are guilty or both are not guilty, or it’s unknown who is guilty, is that the case?

Mr. Ting: If it is unknown as to who committed this act of appropriation, basically there is no case against A or against B as well.

Court: Alright.” (Emphasis added)

15.As far as this case is concerned, as the appellant used her mother’s account and there is evidence from the prosecution to show that the mother and daughter jointly used that account, the defence is entitled to raise queries as to whether or not the prosecution was able to prove on the evidence the appellant did appropriate the money in her mother’s account.

16.Defence counsel was merely making submission based on authorities regarding the appropriation of choses in action.  However, the magistrate would not let defence counsel make submission on this area at all.  He also kept on questioning defence counsel as to whether he wanted to “have the mother added too”.

17.Although it was probable that since the appellant was holding her mother’s bank card, which allowed her to make deposits or withdrawals at ATMs anytime, she already had sufficient “right of control” in law that rendered her able to appropriate the money in her mother’s account.  And had the magistrate eventually found that PW3 did indeed deposit the money by mistake, that the appellant was aware that the other person had deposited the money by mistake, and while being under an obligation to make restoration of the money (section 6(4) of the Theft Ordinance), she kept it for herself, then she would have committed the offence of “theft”.  However, another aspect of this case is whether or not PW3 did indeed “deposit the money by mistake”?  Or did the appellant really sell a computer to Mr. Li?  Was the money involved the balance of the payment for the purchase of the computer?  It was necessary for the magistrate to make findings of facts. 

18.After detailed analysis, I understand that the appellant’s version was indeed unconvincing. However, every defendant shall have the right to a fair trial (Article 87 of the Basic Law and Article 14 of the International Covenant on Civil and Political Rights).  A magistrate must on no account make decisions or seem to have made decisions before the conclusion of a case, however absurd the defendant’s version may be.

19.When the defence counsel was making final submissions, the magistrate kept on indicating that the prosecution witness had deposited money by mistake while the appellant refused to make restoration of the money; and that the appellant stated that the balance of the payment for the computer sold happened to coincide with the sum mistakenly deposited into the account of the appellant’s mother by the prosecution witness after the price adjustment.  It is obvious that the magistrate held that the prosecution witness had told the truth and the appellant’s version was incredible even before the case was concluded. 

20.The reasons set out in the magistrate’s statement of findings are similar to what he said in court while the defence counsel was making his final submissions.  The magistrate did not deal with the legal arguments raised by the defence at all, and he even indicated that the account concerned was “a savings account opened by” the appellant (p.33 of the appeal bundle).  Although the magistrate did later point out that the account belonged to the appellant’s mother, it is obvious that he had dealt with it as if the account was that of the appellant’s without paying regard to the legal issues involved.

21.I indicated my concern over the above situation and asked the appellant and the respondent to make submissions.  The appellant entirely agreed with my view.

Respondent’s response

22.Miss Chiu also conceded in respect of my concern above and indicated that she could not raise any objection.

Discussion

23.In Yeung Mau Lam[1], the Court of Appeal ruled on the propriety of a judge’s questioning of the witness.  Power JA made the following remarks on p.473 of the judgment of that case:

“We are satisfied that the authorities establish the following five propositions apposite to our considerations:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge’s duty throughout to ensure that a trial is properly and coherently conducted.”

24.As for the test to be applied for determining whether the trial judge was “biased”, the appellate court in Nattrass[2] and Fong Chun Kwok[3] held that it was not sufficient to formulate the test as whether there was a “reasonable suspicion” that a fair trial of the defendant was not possible, and that the correct test should be whether there was a “real danger” that the defendant might not have had a fair trial.

25.My view is that the number of occasions and circumstances under which the magistrate conducted his own cross-examination alone do not necessarily show that he was biased.  However, with regard to his behaviour while the defence counsel was making final submission, I am of the view that an informed bystander listening to the case would think that the appellant had not had a fair trial.  Judging it in another perspective, I find that, after considering all the circumstances, there was a real danger that the appellant had not had a fair trial.

26.For the above reasons, I allowed the appeal, quashed the conviction and set aside the sentence as well as the compensation order.

Application for retrial

27.On an application of appeal, it is necessary for the court to consider all the surrounding circumstances.  These include the seriousness of the offence, the history of the proceedings, the evidence for both the prosecution and the defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial, and the length of the sentence which the appellant may have served.

28.It is then necessary to weigh the public interest in ensuring that those guilty of serious crimes are brought to justice and punished against the effect of putting a successful appellant through the ordeal of a further trial.  Obviously, if after all these matters have been considered, the court’s conclusion is that there are no reasonable prospects of a conviction on a new trial, one would not be ordered. (R v Holgate(No 2) [1996] 3 HKC 324)

29.After consideration, I am of the view that a retrial should not be ordered, particularly in view of the fact that the appellant has already served the Community Service Order.

15 August 2013

The appellant, acting in person, present

Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the HKSAR

20 December 2013

Jeremy Cheung, instructed by George Chan & Co. and assigned by the Legal Aid Department, for the Appellant (on conviction)

The appellant, acting in person, present (on sentence)

Samantha Chiu, Senior Public Prosecutor of the Department of Justice, for the HKSAR

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law

[1] The Queen v Yeung Mau Lam [1991] 2 HKLR 468

[2] Nattrass v Attorney General [1996] 1 HKC480

[3] HKSAR v Fong Chun Kwok, HCMA417/2001, 18 December 2001, unreported