刑事檢控科各律師/高級律政 - Department of Justice

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16 MA 912/99 Chu DJ (1.9.2000) *Vivien Chan #Eric Kwok CHAN Hoi-ying Result - Appeal dismissed. Magistrate’s findings/No direct evidence of offence /Need to identify primary facts and inferences drawn/Specific findings to be indicated - - - The Appellant was convicted after trial of an offence of theft. The particulars of offence alleged that the Appellant on 21 April 1999, at a Wellcome Supermarket in Yuen Long, stole a total of 10 items belonging to Wellcome Company Limited. On appeal, it was submitted, inter alia, that the magistrate failed to make a specific finding that the 10 items were property belonging to Wellcome, and that he did not appear to have properly drawn an inference that the 10 items were the property of Wellcome. Held : (1) There was no direct evidence that the Appellant took the 10 items from the goods racks inside Wellcome, and there was no direct evidence that they were the goods of Wellcome. Since it was a case of drawing inferences from primary facts, it was prudent and necessary for the magistrate to indicate and set out the primary facts as proved and then to state the inferences drawn from the proven facts. This had not been done in either the oral reasons or the statement of findings. The omission was not necessarily fatal where the facts were straightforward and the inferences to be drawn were apparent. However, it was the Appellant’s case that she purchased the ten items elsewhere and the burden was on the prosecution to prove beyond reasonable doubt the issues of appropriation and of property belonging to another. That required the magistrate to evaluate the evidence and to make specific findings on these issues; (2) It was not sufficient for the magistrate to state in his findings that in reliance on the evidence of the prosecution witnesses he found the prosecution had proved each ingredient of the offence of theft beyond reasonable doubt. That was insufficient because the credibility of the prosecution witnesses, including the supermarket cashier and manager, was not conclusive of the matter, particularly so since the manager testified under cross-examination that goods sold in other shops could still be registered on Wellcome cash registers when being scanned by the scanners at the supermarket cashier counters. This was not explored further, and it was not clear how goods sold by the
17 supermarket could be distinguished from goods sold elsewhere. There was a reasonable doubt or, at least, a lurking doubt as to whether all or any of the 10 items were taken from Wellcome and whether they were the property of Wellcome; (3) The failure of the magistrate to make a specific finding on the issues of appropriation and property belonging to another, and his omission to set out the process whereby he came to his findings, rendered the conviction unsafe and unsatisfactory. Result - Appeal allowed. MA 231/2000 Tong DJ (2.9.2000) *David Leung #Kevin Egan YEOH Kar-miin Comments by court after no-case submission and before ruling/Caution necessary at sensitive stage of trial/Possibility of accused being misled by court - - The Appellant was convicted after trial of three offences of accepting an advantage as an agent, contrary to ss 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap 201. On appeal, complaint was made about remarks made by the magistrate after counsel had completed his submission of no case to answer. After the submission, the magistrate asked defence counsel to confirm his assumptions that the Appellant would not give evidence, that there would be no defence witness and further that defence counsel would simply adopt the no-case submission as the final submission if he were to find a case to answer. The magistrate had also adjourned the ruling to a date when counsel had to return to the High Court at 10 am. In reply, the Respondent submitted that the magistrate was simply dealing with case management. Held : (1) The no-case submission stage was a sensitive stage of the proceedings. Magistrates tended to be very cautious in what they said at that juncture because any comments from the bench could be misinterpreted as some kind of hint, and counsel gave advice to clients based on such comments. The magistrate had, perhaps inadvertently, given the impression that he was giving an indication; (2) It was inappropriate for the magistrate to have made such
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX A. p. 4 - p. 7 Hong Kong Co
Page 5 and 6: 5 consciously taken the potentially
Page 7 and 8: 7 other steps taken to prevent the
Page 9 and 10: 9 CA 200/2000 Leong, Wong & Keith J
Page 11 and 12: 11 A court ….. should think long
Page 13 and 14: 13 and his offer to plead to mansla
Page 15: 15 C. MAGISTRACY APPEALS/ AGAINST C
Page 19 and 20: 19 Section 148A of the Ordinance pr
Page 21 and 22: 21 letter dated 22 October 1997 to
Page 23 and 24: 23 (3) [English digest of MA 9
Page 25 and 26: 25 keep them abreast of what he was
Page 27 and 28: 27 (1) R v Lennard [1973] 1 WLR 483
Page 29 and 30: 29 D. MAGISTRACY APPEALS/ AGAINST S
Page 31 and 32: 31 The facts showed that whilst the
Page 33 and 34: 33 (2) Although the magistrate did
Page 35 and 36: 35 (1) (2) 20 [English d
Page 37 and 38: 37 E. PRACTICE AND PROCEDURE CA 87
Page 39 and 40: 39 F. COSTS IN CRIMINAL CASES HK

刑事檢控科各律師/高級律政 - Department of Justice

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