HKSAR v. Li Linlin

HCMA 145/2022

[2023] HKCFI 424

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 145 OF 2022

(ON APPEAL FROM STCC 3256/2021)

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BETWEEN

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and find $3500. Her appeal is now against conviction only.

The Prosecution’s Case

2.The prosecution’s case is that the appellant had taken many items including oranges, fish, eggs, vegetables, milk, soy milk and coffee to a total value of $563 from a Welcome supermarket without paying for them. She had put them in her shopping cart and bag and left the supermarket without making payment. A member of staff had seen her putting items into her bag and later stopped outside the supermarket.

3.The only issue at trial was whether she had an intention to permanently deprive the supermarket of the items she had taken. The central issue was whether the prosecution had proved her state of mind necessary to establish the offence. Did the prosecution prove she was dishonest or had she forgotten to pay on her way out?

4.The prosecution called two witnesses: a manager and a staff member of that Welcome supermarket. The staff member saw the appellant at about 4 PM on 26 March 2021 pushing a shopping trolley and her own shopping cart. There were items inside her shopping trolley. When he saw her next, she was only pushing her own shopping cart and not the shopping trolley belonging to the supermarket. This made him suspicious. He then watched her through the CCTV pay for a packet of blueberries at the self-checking out counter but not pay for any other items.

5.She then picked up her shopping trolley containing unpaid items which was nearby and walked down the stairs to the street level. PW2, the manager gave evidence that PW1 told him that the appellant might have left without paying for goods so he walked down to intercept her. He intercepted her outside the supermarket and what she said to him is in dispute but he is unable to recall her exact words.

6.PW2 gave evidence that the appellant said she had bought the blueberries, was holding the receipt in hand for the blueberries and told him that she had forgotten to pay. She said she had to rush home because she thought she had left the stove on at home and she was also in a hurry to pick up her son from school. The manager recognised her as a regular customer at that particular supermarket.

7.The prosecution also relied on CCTV footage of the appellant shopping in various aisles selecting various items that she put in her own bag or the shopping trolley initially.

8.There were 2 sets of admitted facts. What she had in her shopping cart and shopping bag was not disputed. It was not disputed she had not paid for anything but a packet of blueberries. It was admitted that under caution she had said “it was because at that time, I was in a hurry to pick up my son from school and go home to turn off the pot. Therefore, I forgot to pay and left in a rush.”.

9.The photographs of the scene and the exhibits were not in dispute nor was the CCTV footage submitted. The appellant’s clear record was an admitted fact. In the second set of admitted facts, records of very recent conversations between the appellant and her mother were agreed as was her mother’s medical diagnosis documents.

The Defence Case

10.The appellant elected to give evidence. Her evidence was that she had forgotten to pay; she was not dishonest. She had a lot on her mind and was under great stress at the time. She was a housewife, had a young son and her husband earned over $100,000 a month. She had no motive to steal nor any financial restraints. She shopped there regularly.

11.Just prior to the offence, she found out that her mother who lives alone in the Mainland had fallen down, suffered a spinal injury and was unable to care for herself properly. She had not slept for two nights after hearing this news. There was evidence of phone calls and video calls lasting hours where she could see her mother was injured, in pain and alone. She was unable to help her mother in anyway as travel was restricted because of the Covid pandemic. She was sick with worry.

12.On the day of the offence, she had sent her son to an interview class before going to the supermarket. She admitted that she did put the items she had in the supermarket shopping trolley into her own shopping bag whilst she was shopping because the aisles were narrow and she could not manage both at the same time so put the shopping in her own bag. She picked up blueberries on her way to make payment. It was at this time she suddenly thought she may have absentmindedly left her stove on at home. She wanted to check that as soon as possible but knew she also had to pick up her son. She remembered to pay for the blueberries because they were in her hand but not the items that were in her bag and shopping cart.

13.She had to go down a flight of stairs to leave the supermarket. When she reached the pavement she opened her bag to put the blueberries in and saw that there were items in her bag which she had not paid for. She turned left and started to walk towards the other entrance of Welcome which had a cashier on the ground floor. This was agreed by the prosecution. She wanted to make payment for the items she had not paid. It was at this moment she was stopped by PW2 and it was on the pavement.

14.She immediately told PW2 that she was on her way to make payment for items in her bags. She said she had forgotten to pay. She even told him why. She said the position where he stopped her showed that she was on her way back to the ground floor cashier and not on the road leaving the vicinity with stolen goods.

Grounds of Appeal

15.The appeal is based on the grounds that the conviction was unsafe and unsatisfactory “because the learned deputy magistrate erred in concluding that the appellant had the relevant state of mind required to establish the crime of theft.” The defence set out 6 particulars to support that ground or contention.

1) There was a reasonable doubt that the appellant was heading back to the entrance of the supermarket to pay for the unpaid items before she was intercepted by PW2.

2) A failure to consider the explanation given by the appellant immediately to PW2 was consistent with the absence of the required state of mind to prove all elements of this offence. The magistrate did not fully address this evidence which could create a doubt as to her mens rea.

3) The location and direction of travel of the appellant at the time she was intercepted was not adequately resolved. The location could have again created a doubt as to her mens rea.

4) The appellant gave credible and documentary evidence as to the cause of her anxiety and distracted state of mind. The magistrate erred in disbelieving that the stress she may have suffered was sufficient to temporarily distract her from ensuring she paid for items she had selected.

5) The magistrate erred in drawing the irresistible inference that her intention to dishonestly steal and appropriate property was proved by the fact there were 5 oranges in one bag and 6 oranges in the other. He erred in finding that the only reasonable inference was that this demonstrated the appellant had deliberately constructed a defence in case she was arrested to support the inference she was absent minded when shopping. It was submitted that this was speculation without evidence.

6) The last particular to support the grounds of appeal was that the magistrate where the prosecution relies only on circumstantial evidence, failed to consider whether what the appellant said was true or might be true. Essentially, the magistrate failed to consider whether her evidence was or may have been true and if it may have been true then, she deserved to benefit from that doubt.

16.The 1^st to 4^th particulars can be considered together in that they supported the testimony of the appellant, cast doubt on the necessary mens rea of dishonesty and militated against the conclusion or irresistible inference that she was dishonest and intended to permanently deprive the supermarket of its products.

17.The magistrate failed to properly consider whether there was another inference to be drawn and that was she did not have the necessary prerequisite mens rea. The evidence of the appellant as well as the admitted facts relating to her mother’s injuries and the two very long calls or video calls with her mother within 48 hours of the offence were sufficient to cast a doubt and support her oral evidence.

18.This submission leads into the 6^th particular and that is a failure to consider whether or not what the appellant said was true or might be true.

19.It was the 5^th particular which stood on its own. The magistrate was referred to the submission her haphazard shopping in choosing oranges and different brands of milk supported her confused, occupied state of mind at the time and absentmindedness. He found this should be taken into account but was insufficient to raise a reasonable doubt by itself. The criticism is aimed at the magistrate’s remark that “they may support the defendants mind was occupied, but they may also be a disguise.” Paragraph 53 of the statement of findings. This unwarranted speculation was a serious error that affected his consideration of the circumstantial evidence and the appellant’s defence.

The Respondent’s Reply

20.Counsel for the respondent submitted that the CCTV footage of the appellant’s actions in the supermarket supported the finding that she had the necessary dishonest intent. Emphasis was placed on the fact she took time to select some products such as eggs and fish. At the beginning, she was pulling or pushing her own shopping cart as well as the supermarket shopping trolley without difficulty before she only shopped with her own shopping cart. This went against her evidence that it was not easy to handle both.

21.Counsel also submitted the fact that she carried her shopping bag and shopping cart downstairs when they must have been quite heavy, yet she did not realise she had not paid for the items inside, beggared belief.

22.Even though the manager, PW2, could not recall exactly what the appellant said to him when he intercepted her, he did not think she had said she was on her way to pay for items she had in her bags. It was stressed that although much was made of where the appellant was positioned when he intercepted her, he remained consistent in his evidence that she was on the road and not on the pavement as suggested.

23.In reply to the submission that the magistrate had considered the fact the appellant chose different brands of milk and had put 5 oranges in one bag and 6 in the other when they were marketed as best price for 6 oranges as alternatively a deliberate ploy to put forward as a defence of absentmindedness if she was arrested, counsel for the respondent suggests this was an unfair interpretation and the magistrate was not using this piece of evidence to find the appellant was dishonest. Counsel submits that it appears the magistrate only meant to express that the nature of this piece of evidence was neutral.

24.It was said that the magistrate clearly applied the correct burden and standard of proof which indicates that he would not draw any adverse inference against the appellant based on something that he had no evidence of or based on something that he was not certain about.

25.Counsel for the respondent submitted that the magistrate was alive to the appellant’s clear record and the fact that there was only circumstantial evidence as opposed to direct evidence but correctly and with careful analysis of the evidence found against the appellant. He found on the whole of the evidence, an irresistible inference she was dishonest and intended to steal. His findings on the credibility of the appellant were not plainly wrong.

Discussion

26.A magistracy appeal is conducted by way of a “rehearing” on the evidence that was before the magistrate. The magistrate had the advantage of hearing and seeing witnesses give evidence.

27.What does concern me is the consideration of all the evidence that was not in dispute. She had a young child who was at an interview school at the time so she was shopping whilst he was occupied but would have had to pick him up at a specified time.

28.The appellant’s mother in the Mainland was seriously injured and lived on her own. It was admitted that she had a spinal injury. Her mother had only told her of her serious injury two days before the offence date even though she sustained her injury in January that year. The appellant had said she was very close to her mother which led the magistrate to find it simply unbelievable that the appellant was kept in the dark about the spinal injury for two months.

29.The magistrate did not believe the appellant’s evidence that she had only become aware of her mother’s spinal injury two days before the offence date which was why she had not slept much and why she was so preoccupied. He found the appellant was using this as an excuse to give credibility to a defence of no dishonest intent.

30.It was an admitted fact that the appellant had had a WeChat conversation with her mother for 106 minutes at 7:49pm on 24 March 2021. It was admitted that the appellant had had a WeChat video call with her mother only hours later lasting 193 minutes at 2:53am on the 25 March 2021. This was the day before the offence date. These admitted facts were adduced to support her evidence that she had only just found out about her mother’s spinal injuries and had had two sleepless nights.

31.To reject her evidence on this matter when the unusually long phone calls, particular the one at 3am, could suggest some sort of serious problem or emergency does appear to be a finding that is unsubstantiated, not based on evidence nor reasonable. I find merit in the 4^th particular.

32.The other concern I have is the magistrates conjecture or speculation that the appellant may have deliberately shopped in such a haphazard manner to give herself a chance at a defence of absentmindedness in case she was arrested.

33.It is suggested in reply that the magistrate did agree that her unusual selection of different brands of milk and different quantities of oranges in different shopping bags could support the submission that she was preoccupied or absentminded but neutralised this submission by his remarks that it may also be a disguise. I do not agree with counsel for the respondent that it was only a remark to demonstrate how the magistrate neutralised this fact.

34.To suggest, and there can be no other interpretation of that suggestion, that she may have deliberately shopped in this manner in order to provide herself with a defence cannot be sustained. It is unsubstantiated and speculation. I find merit in the 5^th particular.

35.As this is a rehearing, on the evidence of her sudden distressing discovery of her mother’s injuries and those two recent long calls coupled with her unusual haphazard selection of brands of milks and different quantities of oranges I do not find that the only irresistible inference was that she left the shop knowing she had not paid, she was dishonest and intended to deprive the supermarket of their goods.

36.The appellant certainly bought suspicion upon herself but this was a case where on the evidence adduced, what she said might be true which means she should benefit from the doubt raised. I find there was another possible reasonable inference to draw and therefore the adverse inference should not have been drawn against her.

37.The conviction is thus unsafe and unsatisfactory. I allow this appeal and set aside the conviction.

Mr Leung Ting Ngai, Anothony, Senior Public Prosecutor, of Department of Justice, for the Respondent

Mr Andrew Bruce, SC leading Mr David Khosa, instructed by Messrs Patrick Chu, Chonti Wong Lawyers, for the Appellant