HKSAR v. Chow Sze Yu

HCMA 73/2018

[2018] HKCFI 1272

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 73 OF 2018

(ON APPEAL FROM STCC 2521 OF 2017)

________________

________________

________________

JUDGMENT

________________

1.The Appellant appeals against her conviction after trial in the Magistrates’ Court on a charge of theft at a shop. She was charged with stealing two items, namely a box of hair dye and a box of what is said in the charge to be “skincare product” but was referred to by the Magistrate as “pigmentation cream”. At the trial, a box of pigmentation cream was produced as exhibit P3 and a box of hair dye was produced as exhibit P4.

2.After being intercepted outside the shop by a security guard (who gave evidence as PW1), the Appellant was taken back into the shop and brought to an office there.  In his Statement of Findings, the Magistrate said that in the office the Appellant “claimed to be suffering from asthma‌… bent her body and put her hand in her handbag” and that “[a] box of pigmentation cream then dropped from her body”.  Although the Magistrate found that the Appellant had put a box of pigmentation cream into her handbag while in the shop, he noted that she was already holding that box when PW1 first saw her and that she was not seen taking it from a shelf.  The Magistrate said that since such cream “can be bought elsewhere in town”, he “[could] not draw an irresistible inference that [the box of pigmentation cream produced as P3] must be owned by the shop”.  “It could have been”, he said, “the appellant’s property”.

3.As far as the box of hair dye produced as P4 is concerned, however, the Magistrate felt sure that it “belonged to” the shop, and he found that the Appellant had stolen it.

4.In the result, the Magistrate convicted the Appellant on the basis that she had stolen a box of hair dye although not a box of pigmentation cream.

5.The prosecution’s case was that the Appellant had put the box of hair dye into her handbag.  But it was not in her bag that it was found.  The Appellant was escorted from the shop to a hospital.  The two police constables who had attended at the shop (and who gave evidence as PW4 and PW5) were joined at the hospital by a woman police constable (who gave evidence as PW6).  PW6 found the box, as the Magistrate expressed it, “between the appellant’s calves and the hospital bed” which she was lying on.  The Magistrate said that the irresistible inferences were that it came from the Appellant’s handbag having been taken by her from a shelf at the shop.

6.The CCTV footage produced shows the Appellant taking a box of hair dye from a shelf at the shop but no CCTV footage showing her put it into her handbag.  Might she have taken that box from the shelf for some purpose other than putting it into her handbag?  The CCTV footage showed her approaching the shelf with a mobile phone in her hand and, having taken that box from the shelf, examining, photographing it and walking away with her back to the camera.  So she might have taken that box from the shelf to photograph.

7.The security guard PW1 was insistent that he had seen the Appellant put a box of hair dye into her handbag.  But he was also insistentthat he told the police constables PW4 and PW5 that he had seen her putting both a box of hair dye and a box of pigmentation cream into her handbag.  PW4 and PW5’s evidence was that the only thing that PW1 told them that he had seen the Appellant putting in her handbag was a box pigmentation cream, saying that he believed that there were other items from the shop inher bag.  So the reliability of PW1’s evidence that he had seen the Appellant putting a box of her hair dye into her handbag is highly questionable.

8.Also calling PW1’s reliability as a witness into question is the fact that he said that a police officer had called him to ask him to go to the hospital to see if a box of hair dye was the one that he saw.  But PW4 saidthat it was before P4 had been found that he asked PW1 to go to the hospitalfor further investigation and he had not told PW1 that a box of hair dye had been found.

9.None of this means that PW1 should be treated as having lied.  But it does seem that he might well have been mistaken in believing by thetime he gave evidence that he had seen the Appellant put a box of hair dye into her bag.

10.No evidence was led to suggest that this type of hair dye was exclusive to the shop concerned.

11.There are other points which have been advanced on the Appellant’s behalf, but there is no need to go into any of them.

12.The Magistrate of course went about his task conscientiously, and had the advantage of receiving the evidence at first-hand.  But an appeal like this one is by way of rehearing albeit on the papers.  That caninvolve, and does in the present case involve, scrutiny on appeal of the state of the direct evidence, the state of the circumstantial evidence and the state of the two combined.  In my judgment, the evidence in the present case did not make it safe to convict.

13.Accordingly, the appeal is allowed and the conviction is quashed.

Mr Steven Kwan, counsel on fiat, for the Respondent

Mr John Reading SC, leading Mr Alan So, instructed by Tam & Partners, for the Appellant