HKSAR v. Ko Elle Wai Sum

HCMA 374/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 374 OF 2015

(ON APPEAL FROM KCCC 1536 OF 2015)

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REASONS FOR JUDGMENT
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1.The appellant appeals against her conviction after trial of an offence of Theft contrary to section 9 of the Theft Ordinance Cap 210 (the Ordinance). The magistrate[1], imposed a fine of HK$1,500.00 on the appellant.

2.At the end of the hearing I dismissed the appeal and now hand down my reasons for so doing.

The facts

3.On 29 April, 2015, at about 12:20pm, PW1 (the security guard) was on duty in plainclothes at Market Place by Jasons Supermarket (the supermarket). She noticed the appellant use an iPad to take a photo of two apples. She continued to observe the appellant. At a later time, she saw the appellant put an apple into her rucksack. The appellant then walked around the supermarket for about 5 minutes before walking past the cashier counter without making payment.

4.The appellant was intercepted by the security guard outside the supermarket. The case was reported to the police. Upon police arrival, the apple and the rucksack were seized as exhibits. The apple belonged to the supermarket, Dairy Farm Group Ltd and was valued at HK$35. PW2 (PC 18642) arrested the appellant.

The Defence Case

5.The appellant was not legally represented at her trial. She was of clear criminal record. She elected not to give evidence, nor to call any witness to testify on her behalf.

6.Much of the prosecution case was not disputed. She accepted that :-

I. whilst she was in the supermarket she took the apple and put it into her rucksack,

II. she walked around the supermarket for about 5 minutes after that,

III. she walked out of the supermarket without making payment for it,

IV. when she was stopped by the security guard outside the supermarket the apple was in her rucksack and

V. the apple belonged to Dairy Farm Limited.

7.The appellant contended that she had the consent of the owner to take the apple and not pay for it. It was her case that the prosecution had not satisfied the elements of appropriation or dishonesty to prove the offence of theft.

Findings by the magistrate

8.The magistrate ruled that the prosecution did not have to prove that the property was appropriated “without the owner’s consent.” Having considered the test as laid down in R v Ghosh [1982] QB 1053, the magistrate was satisfied that the appellant had the dishonest intent. In addition, an irresistible inferrence was also drawn against the appellant that she had the intention of permanently depriving the owner of the apple.

Grounds of appeal

9.In the appellant’s notice of appeal she relies on three grounds of appeal. They were that the magistrate:-

(i) repeatedly displayed prejudice towards her;

(ii) disregarded statutes in arriving at his judgment;

(iii) disregarded case law in arriving at his judgment where such case law is relevant to the case in question.

10.The appellant was not legally represented at the hearing. She orally elaborated on her grounds of appeal.

Discussion

Ground 1 – The magistrate was prejudiced against the appellant’s arguments

11.The appellant complained that at the commencement of the trial, the magistrate was prejudiced against her arguments on law which incorporated grounds 2 and 3 of the grounds of the appeal. She claimed that before evaluating her arguments the magistrate had made up his mind and therefore he was unfair. She requested an adjournment of the appeal hearing to apply for the transcripts of the trial to support her contention.

12.Mr Vincent Lee Public Prosecutor for the respondent objected to the appellant’s application. He submitted that the transcripts would not be of assistance as in the present case there were no facts in dispute and the only issue was as to law of which this court was able to decide without the transcripts and therefore no adjournment was required.

13.The appellant confirmed to this court, that during the trial, despite the appellant’s view that the magistrate had prejudged her arguments he had nevertheless gone on to hear and consider those same arguments by the appellant again, twice during the trial, once at the no case to answer stage and again at the closing submissions. Taking the appellant’s complaint at its highest, even if the magistrate had expressed his view on a point of law at the outset of the trial, these were matters concerning a point of law of which he was at liberty to do, moreover, at that time the appellant was not legally represented. As the appeal concerned the same points of law and as there was no dispute on the facts, I refused the adjournment.

14.Having regard to the fact that the magistrate considered the appellants arguments of law twice during the trial and had set them out again in the statement of findings giving reasons for his decision, I find there to be no merit in this first ground of appeal that the appellant was not given a fair hearing by the magistrate.

Ground 2 and Ground 3 – the magistrate disregarded case law and statute in arriving at his judgment

15.I shall deal with these grounds together. The appellant repeated the same legal arguments as she did before the magistrate. That is that the prosecution failed to prove appropriation and dishonesty.

16.The magistrate correctly pointed out the elements of offence as stated in section 2 of the Theft Ordinance Cap 210[2]. The burden was on the prosecution to prove beyond reasonable doubt that the appellant was guilty of theft. This was proved if the appellant dishonestly appropriated property belonging to another with the intention of permanently depriving the other of it.

17.It was her case that she had not “appropriated” the apple. In support of her argument she submitted that as the security guard of the supermarket did not stop her placing the unpaid apple into her rucksack and saw her walking out of the shop, such “inaction” by the security guard indicated that the appellant had an implicit ‘consent’ to take the apple. Given she had obtained the ‘consent’ she did not appropriate the apple and therefore she was not dishonest. The appellant relied on the case of R v Morris [1984] AC 320 to support her submission that if the owner consents to the appropriation of the property then there was no appropriation. She further contended that as the guard permitted her to leave the supermarket without payment, the guard as the agent of Dairy Farm consented to giving her ownership of it.

18.The appellant’s argument that the security guard was giving her the rights of an owner has no merit. Dairy Farm was the owner of the apple not the security guard. In any event the magistrate found that Dairy Farm did not consent he said[3] :

“14. There is no evidence that the owner of the property (my emphasis) gave the defendant any consent.”

19.The magistrate also noted that there was no evidence as to the appellant’s belief of implied consent. In paragraphs 19 and 20 of his statement of findings he said this :-

“19. Regarding the implied consent, there is no evidence as to the defendant’s belief of implied consent. Assuming for a moment there is, it is suffice for me to say that the prosecution does not have to prove that the property was appropriated without the owner’s consent.[4]

20. However, in all fairness, the defendant’s belief that she had the owner’s consent could be relevant in deciding whether the defendant acted dishonestly.”

20.At Paragraph 22-28, page 1453, Archbold Hong Kong 2015 states:-

“Section 2(1) of the Theft Ordinance is not to be construed as though it contained the words “without the consent of the owner” and accordingly it is not necessary for the prosecution to prove that the appropriation was without the owner’s consent: Lawrence v Metropolitan Police Commissioner [1972] AC 626 HL In Lawrence, the House of Lords considered the question of the extent to which consent was relevant to the issue of whether or not there had been an appropriation within the meaning of section 3 of the Theft Act (section 4 of the Theft Ordinance). Viscount Dilhorne delivering an opinion in which the other Law Lords concurred said at 632:

‘Section 3(1) states any assumption a person of the rights of an owner amounts to an appropriation…A fortiori a person is not to be regarded as acting dishonestly if he appropriates another’s property believing with full knowledge of the circumstances that other person has in fact agreed to the appropriation… When Megaw said that if there was true consent, the essential element of dishonesty was not established, I understand him to have meant this. Belief or the absence of belief that the owner had with such knowledge consented to the appropriation is relevant to the issue of dishonesty, not to the question whether or not there has been an appropriation. That may occur even though the owner has permitted or consented to the property being taken.’

In consequence of the subsequent decision of the House of Lords in R v Morris [1984] AC 320 there was confusion for several years as to the status of the decision in Lawrence … (which) decided that to be within the Theft Act 1968, an appropriation had to be unauthorized appropriation.

In R v Gomez [1993] AC 442… (the Court) effectively overrules all of those cases that proceeded upon the basis that appropriation required an act not authorized by or consented to by the owner.”

21.As is observed from the passage in Archbold R v Morris has been overruled. The appellant can appropriate property whether or not the owner had given her consent. It is clear that belief or the absence of belief that the owner has consented to the appropriation was relevant to the issue of dishonesty. The magistrate correctly rejected the appellant’s argument on appropriation and rightly considered that the belief of appropriation went to the question of dishonesty.

22.The magistrate identified the main issue at the trial was one of dishonesty. He said[5] quoting Smith’s Law of Theft (9^thed. Para 2-19 at p22):

“A customer taking goods from the shelf in the supermarket also has the consent of the owner but he is appropriating the goods and, if he does so dishonestly intending permanently to remove the goods from the shop without paying, he commits theft then and there.”

23.As the appellant rightly states the guard was there to protect the property, which duties encompassed ensuring the property was not to be taken out of the supermarket without payment of it first.

24.On the facts of this case the magistrate found that a customer would know payment at the cashier counter was required before leaving the supermarket. He rejected the appellant assertion that it was her belief that she had consent from the owner and that she was entitled to take the apple and not make payment for it. He drew an irresistible inference that the defendant dishonestly appropriated the apple with the intention to permanently deprive the owner of it.

Conclusion

25.The magistrate demonstrated his understanding as to the meaning of each element of the offence and his application of the law in the instant case.

26.There are no merits whatsoever in any of the grounds of appeal.

27.The undisputed facts giving rise to the offence of theft against the appellant was overwhelming, I am satisfied and sure that the case was properly established against the appellant.

28.The conviction is neither unsafe nor unsatisfactory, accordingly the appeal is dismissed.

Mr Vincent Lee, PP, of the Department of Justice, for the respondent

The appellant appeared in person