HKSAR v. Yeoh, Poh Lean

HCMA 431/2021

[2022] HKCFI 1962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 431 OF 2021

(ON APPEAL FROM ESCC 1079 OF 2021)

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BETWEEN

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Before:  Hon Barnes J in Court

Date of Hearing and Judgment:  24 June 2022

Date of Handing down Reasons for Judgment:  30 June 2022

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REASONS FOR JUDGMENT

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A.  Background

1.The Appellant was charged with an offence of “Theft”, contrary to section 9 of the Theft Ordinance, Cap 210.  She pleaded not guilty before Mr Paul Yip, a Deputy Magistrate (the Magistrate)  sitting at the Eastern Magistracy.  She was convicted after trial and was fined $3,500.  She appealed against conviction.

2.The particulars of offence stated that the Appellant, on 17 February 2021, at the Aeon Store at Kornhill, stole the following:

“three packs of pork, one pack of fish roe, two packs of salmon, four boxes of cheese, one pack of Japanese kelp, one box of milk, one bottle of kimchi, one pack of egg, one cool bag, one wooden spoon, one piece of ginger, one onion, one white radish, two packs of scallion and one pack of egg tofu, the property of the said Aeon Stores.”

3.I allowed the appeal against conviction after the hearing and I indicated I will give my full reasons.  This I now do.

B.  The prosecution case

4.The prosecution case, in a nutshell, was that the Appellant was seen leaving Aeon Stores (the store)  without making payment for the items mentioned in the charge (the goods).

5.During trial, it was admitted that the Appellant placed the goods inside two recycle bags while shopping inside the store; that the Appellant did leave the store without making payment; upon arrest by the police the Appellant claimed under caution that she did not steal, that it was a misunderstanding.  The CCTV footages and still photographs capturing what had taken place were not in dispute.  It was also an admitted fact that the Appellant has a clear record.

6.The prosecution mainly relied on the evidence of one security guard in plainclothes (PW1)  who testified having observed the Appellant putting the goods into her recycle bags, walked out of the store without making payment.  PW1 said he intercepted the Appellant outside the store and the Appellant said to him “I will pay in a moment”.

7.It should be noted that under cross-examination, PW1 admitted he did not intercept the Appellant nor did he has any conversation with the Appellant.  He said he got mixed up and only became clear after viewing the CCTV footage.  PW1 also agreed that the Appellant was looking at the mobile phone at various times and left the store in a slow pace.

C. Defence case

8.The Appellant gave evidence.  she said she had been to the said store regularly and she knew the layout of the store.  At the material time the shop was crowded and there were no trolleys or baskets available, explaining why she had used the recycle bags.  She claimed the place was so crowded that it would not allow people to walk around carrying shopping baskets.

9.The Appellant said she went to the store to buy ingredients to try out a new dish for a friend. She shopped alone as her domestic helper had to look after her son, who stayed at home due to the Covid-19 pandemic.  She was busy with the distance learning for her son earlier that day; with her work and having to deal with a Court Summons against her company, the hearing of which was scheduled for about one month later.  She said she was checking her mobile phone to see what ingredients she had to get and also to communicate with her work colleagues.

10.The Appellant said after she picked up all the goods, she went to the cashier and seeing there was a long queue, she intended to use the self-help counter.  However, she walked right past the counter and exited the store.  She was intercepted by a lady staff and she told the staff “I will go pay now.”

11.She was brought to the security’s control room and later to the police station.

D. Magistrate’s findings

12.After reminding himself of the burden and standard of proof, and that the Appellant was a person with a clear record, the Magistrate evaluated the evidence.  Despite inconsistency in PW1’s evidence as to who had intercepted the Appellant and whether PW1 had spoken to the Appellant, the Magistrate found that PW1’s observation of the Appellant was consistent with what was depicted on the CCTV footages.  The Magistrate found that “save for the part after he intercepted the [Appellant]”, PW1 was an honest and credible witness and he gave full weight to PW1’s evidence before PW1 intercepted the Appellant.

13.The Magistrate referred to the evidence of the Appellant. He noted that her evidence appeared to be unshaken under cross-examination. However, he referred to what the Appellant was seen doing, such as picking up various items and packing them; looking at her phone and using it for a few seconds; and so on, and came to the decision that the Appellant was “very focused with her shopping”, and that the occasional use of the phone had not affected her “determination to shop”.

14.The Magistrate also referred to the Appellant having looked behind her 3 times prior to picking up the pack of eggs; and having looked back once immediately before she exited from the store.

15.According to the Magistrate, the Appellant could not explain why she looked behind her when asked by the Court.  As the Appellant was shopping alone, the Magistrate was of the view that she would not have been expecting or looking for anyone.  The Magistrate was of the view that the Appellant appeared to be “alerted as to whether she was being followed”.  The Magistrate said these actions did not support the Appellant’s version that her mind was pre-occupied at the material time.

16.Whilst PW1 agreed there were no spare trolleys or baskets at the material time, the Magistrate disagreed with the Appellant’s assertion that the place was so crowded that it was impossible to move around, saying that the CCTV footages showed people could use trolleys with enough space to spare.

17.The Magistrate referred to the Appellant’s admission that she had planned to buy a lot of items but had no intention of asking the shop staff to assist.

18.The Magistrate then said this:

“41. Whilst I accept that this alone could not be solid proof that [the Appellant] intend to steal, her choice, together with her behaviour as depicted in the CCTV, collectively cause me to reject her explanation and draw the only and irresistible inference that she intends to steal those items in the first place.”

19.The Magistrate then referred to the element of dishonesty according to the test in Ghosh and found the prosecution had proved beyond a reasonable doubt all the elements of the offence of theft and found the Appellant guilty.

E. Grounds of Appeal

20.Mr Edward McGuinniety, counsel for the Appellant both below and before me, submitted 5 grounds of appeal:

a.  The Magistrate erred in law to regard PW1 as an honest and credible witness despite the fact that he lied outright in Court;

b.  The Magistrate erred in law to imply the intention to steal was drawn from an irresistible inference based on rejection of the Appellant’s evidence;

c.  The Magistrate wrongly focused on the Ghosh test when it was irrelevant in the present case;

d.  The Magistrate wrongly found the Appellant guilty on her demeanour when shopping; and

e.  The weight of the evidence did not prove the case beyond a reasonable doubt.

F.  Discussion

21.An appeal under s.113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.  Where the facts are concerned, the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed as the hearing is on papers (see Chou Shih Bin v. HKSAR [1]). Unless the findings are “plainly wrong”, the appellate court will not interfere with the findings.  If the magistrate has made a serious mistake, the appellate court may quash the conviction if it is just to do so.  Even when the appellate court cannot find any mistake, or the grounds of appeal are not successful, the appellate court still has to decide whether the evidence adduced by the prosecution successfully proved the appellant’s guilt beyond a reasonable doubt.  If the appellate court is unsure, then the conviction must be quashed (see HKSAR v Ip Chin Kei and Others [2])

F.1. Ground (a)

22.It is admitted that the Appellant was intercepted and brought back to the store by a female, the same woman in plainclothes seen on the CCTV footage chasing after the Appellant after the latter left the store.  From the CCTV footages, it can also be seen that before the Appellant left the store, PW1 (a fairly stocky man)  had either looked at or walked in the direction of the Appellant. PW1 ran out of the store after the female security guard gave chase. Although the CCTV footages did not show the interception of the Appellant, it is rather odd that PW1 claimed he was the one who had intercepted and spoken to the Appellant and only admitted he had made a mistake under cross-examination. It is difficult to see how he could have “mixed-up” such an important piece of evidence. Even if PW1 was honest in giving his evidence, it is hard to describe him as a credible witness. But for the fact that there was no dispute as to what the Appellant had done as shown on the CCTV footages, one would have to have doubts about the credibility and reliability of PW1.  

23.For the purpose of this “rehearing” on appeal, I only consider what I could see from the said footages, and not the evidence of PW1.

F.2 Ground (c)

24.It is correct that the Magistrate referred to the Ghosh test.  I do not see anything wrong with that approach. The Magistrate was merely pointing out the elements of the offence of theft and Ghosh is the leading authority on the issue of dishonesty.

F.3. Grounds (b), (d)  and (e)

25.These three grounds could be dealt with together.

26.When considering the evidence before the Magistrate, I took into consideration that the Appellant is a professional, a mother and a person with no previous convictions.  Her explanation of having to get the food stuff to prepare a new dish for a visitor sounds credible, in particular when one examined the various food items among the goods she picked up.  

27.From the CCTV footages the supermarket was indeed crowded at the time.  PW1 agreed that when the Appellant was shopping, there were no trolleys or baskets available for her use.  As to the Appellant’s own comment that the place was so crowded that one could not even walk around carrying baskets, whilst that comment might have been an exaggeration, it did not change the fact that there were no trolleys or baskets available for her use and the store was crowded.

28.There is no doubt that the Appellant was looking at her mobile phone from time to time.  Her explanation as to why she was looking at her phone again sounds credible.  According to the evidence of the Appellant, she was doing a new dish and was checking the phone to see what ingredients she needed to buy before getting the items.  Such behaviour is common among shoppers.

29.I bore in mind that it is not unusual for one to go to a supermarket to buy certain items and ended up buying many more than intended.  That being the case, it is understandable that the Appellant did not ask anyone to go shopping with her, particularly when her evidence was that her domestic helper had to stay at home with her son, who was home because of the Covid-19 pandemic.

30.The Appellant also gave evidence about the various matters on her mind, in particular the Court Summons against her company that she and her colleagues had to deal with.  Although the case was scheduled to be heard one month later, it is impractical to say that one would or could only worry about such matter later, and not while one is shopping.  One cannot normally control the thoughts going through one’s mind which one was worrying or concerned about.  The fact that the Appellant was able to pick up various items and packed them in the two recycle bags did not, by itself, show that she was clear-minded, or that her mind was not pre-occupied.  

31.In my view, the only “suspicious” action of the Appellant before she left the store without payment was her looking behind her for a few times (while shopping and immediately before leaving the store).  It is true that when she was asked by the Magistrate why she did that she was not able to answer.  It is also true that she was not expecting to meet anyone.  On the other hand, the security guards employed by the store were not wearing any uniform and there was no evidence that the Appellant knew who were the guards and was looking out for any of them.

32.Looking at all the evidence, though the act of looking behind her raised some suspicion, to say that this professional woman with a clear record would so blatantly collect so many items with the intention of not paying for them, to steal them, risking her reputation and her career, is not the only and irresistible inference I could draw.

G. Conclusion

33.For these reasons, I allowed the appeal against conviction and quashed both the conviction and the fine imposed.

Mr WONG Sin Fai Ryan, Public Persecutor of Department of Justice, for Respondent

Mr Edward Luke McGuinniety, Counsel instructed by Ho & Associates, Solicitors for Appellant