HKSAR v. Lee Heung Yee

[English Translation – 英譯本]

HCMA 563/2021

[2022] HKCFI 1152

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 563 OF 2021

(ON APPEAL FROM ESCC 215/2021)

——————————

BETWEEN

——————————

——————————

JUDGMENT

——————————

Introduction

1.The appellant was charged with one count of “Theft”[1]. The particulars of offence alleged that on 30 November 2020, at “HKTVmall”, G/F., Emperor Group Centre, 288 Hennessy Road, Wanchai, Hong Kong (“the subject branch”), she stole five packs of lingzhi capsules and three packs of fish calcium oil tablets (“the subject goods”), which were the property of Chow Ka Wai (transliteration) (PW1).

2.The appellant pleaded not guilty and was tried before Ms Leona Chan, a deputy magistrate (“the magistrate”). On 16 September 2021, the magistrate found the appellant guilty. On 30 September 2021, the appellant was sentenced to two months’ imprisonment, which was suspended for 24 months.

3.The appellant now appeals against the aforesaid conviction and sentence. The hearing of the appeal was originally fixed at 8 April. However, due to the pandemic, on 8 March 2022, the court gave a direction that the original hearing be vacated and this appeal case be dealt with on paper.

Prosecution Case

4.The appellant was a staff member of HKTVmall, and worked in the subject branch. PW3 was her superior, while PW1 and PW2 were her colleagues working in the same branch.

5.On 27 November 2020, PW1 made purchases from HKTVmall, including the subject goods valued at about HK$1,200 in total, using a mobile phone app. Two days later, PW1 received a notification that the goods had been delivered to the subject branch and were ready for self-collection. However, PW1 was under (Coronavirus Disease 2019) home quarantine at that time and the goods could be stored in the warehouse for only three days, otherwise the order would be cancelled and the ordered goods would be returned to the warehouse of the headquarters at Tseung Kwan O. She therefore asked PW2 to sign to acknowledge receipt and collect the goods for her. Subsequently, PW1 received a notification from the mobile phone app that a signature had been put to acknowledge receipt of the goods, and she also confirmed this with PW2.

6.On 29 November 2020, PW2 collected the goods at the warehouse of the subject branch and casually put the carton box containing the goods ordered by PW1 (including the subject goods) in a red plastic container, and did not move it further afterwards. On the following day, PW2 came to work and was on duty together with the appellant. He did not notice whether PW1’s goods were still in the red plastic container. However, the fact that the aforesaid goods had been taken away by the appellant subsequently was not in dispute. The course of events had been captured by the CCTV in the subject branch, and [the footage] was submitted in court as an exhibit (P2) by consent of both parties.

7.Regarding the regulations of HKTVmall as to how goods that had not been collected three days after arrival should be dealt with, both PW1 and PW2 explained that only fresh food would not be returned to the warehouse and would be thrown away directly, but they would first take photos, make reports to the [chat] group of the company and inform the colleagues responsible for customer service before throwing them away. If they were not perishable goods, then the return-to-the-warehouse procedures, with the code being G99, would be activated. Whether or not the goods were perishable, colleagues were not allowed to use them themselves. Such regulations were explained both during the induction training or [sic] in the code of conduct for staff.

8.On the afternoon of 1 December, PW3 received a phone call from PW1 and learned that PW1 could not find the ordered goods. Since PW2 was on duty on that day, he instructed PW2 to be responsible for looking for the goods. In the evening, PW2 could not find the goods, but said that the applicant had dealt with them. Later on, PW3, using a mobile phone app, logged in the CCTV system of the shop for watching and suspected that the appellant had first put the goods aside, opened the packing, studied [them] for a while and then put [them] into her bag. PW3 said that staff would only open the packing when there was obviously liquid leaking from the goods, otherwise the packing would not be opened no matter whether a signature had been put for acknowledgement of receipt of the goods or not, and therefore suspicion against the appellant was aroused. Later on, PW3 returned to the office again and, using the computer system, watched the CCTV footage carefully and captured screenshots and subsequently made reports to the general operation manger and the regional manager. The three of them watched the CCTV footage together again and on the afternoon of 3 December, the appellant was summonsed to go to the head office at Tseung Kwan O for questioning.

9.PW3 confirmed that on the day the appellant was informed to go to the head office at Tseung Kwan O, she was not told the reason and after she arrived, she did not know what had happened. It was only when the general manager, the manager of the human resources department and PW3 were present together that the two managers told the appellant for the first time that she was suspected of theft and asked her whether she had done it. After being silent for a while, the appellant said, “Could [you] not make a report to the police?” Later on, PW3, together with the general manager, took the appellant to Wanchai Police Headquarters to report the case.

10.At 1925 hours on 3 December 2020, PW4, a police officer, declared the arrest of the appellant for the offence of “theft”. Under caution, the appellant said, “Out of momentary greed, I stole [them] for my own consumption.” Subsequently, PW4 post-recorded the above verbal admission in the appellant’s record of interview (P8). At 2200 hours on the same day, PW5, a female police officer, took the appellant home for a house search and the subject goods were found upon search at the appellant’s home. After the house search, PW6, a police officer, made a record of interview with the appellant under caution (P12), and the appellant again admitted that she had stolen the subject goods due to momentary greed while taking stock at the warehouse of the subject branch.

Special Issue

11.Regarding the appellant’s objection to the production of the record of interview and the related documents in court, the magistrate dealt with this issue in an “alternate procedure”. After careful consideration, she found that PW4-6 were honest and reliable witnesses[2], and attached full weight to their evidence. However, she was of the view that the appellant’s evidence was unreasonable[3], self-contradictory[4] and exaggerated[5] in a number of respects, and even if part of the appellant’s account were accepted[6], it would not have affected the admissibility of the record of interview concerned. Eventually, the magistrate found that the records concerned were accurate records that were made by the appellant voluntarily, and did not exercise the discretion to exclude them, and formally accepted them as prosecution exhibits.

Defence Case

12.The appellant did not dispute that she had taken away the subject goods from the subject branch on the day of the incident, they were subsequently found upon search at her home and they were property belonging to PW1 and so on. Her line of defence was that while tidying up stock, she misunderstood that the subject goods were abandoned objects, and as she did not want to waste them, she took them home for her own consumption. It was later found that they belonged to PW1 and so she at once contacted her and made a re-purchase as compensation. The appellant explained that she was only a part-time staff member and was not normally responsible for the return-to-the-warehouse procedures. She did not know the relevant procedures, nor did she know that there were the procedures mentioned by the prosecution witnesses above.

13.Regarding the incident on 30 November 2020, the appellant testified that only two persons, she and PW2, came to work on that day. PW2 told her to check the goods on the goods shelves/racks in the entire shop once and so she used a barcode device to “beep” [scan] the goods. During that time, the appellant saw that “order completed” was shown on the device for the subject fish calcium tablets and lingzhi capsules. She reckoned that the goods should not have appeared in the shop and therefore she put the goods aside pending disposal in one go. PW2 had instructed her to throw away a box of detergent directly. The appellant did not know the value of the subject fish calcium tablets and lingzhi capsules at that time. Since she believed that the goods had no owner, it would be a great pity if they had to be abandoned eventually and so she put those items into her own backpack and took them home when she knocked off work. That night, she received WhatsApp message[s] from PW2, saying that the two pieces of goods on the plastic drawer in fact had been purchased by PW1 and asking her whether she had dealt with them. The appellant replied that it seemed that [she] had, and if the goods were missing, she would re-purchase them for PW1. And PW2 said that it was not necessary and it was only that he himself had not written it clearly (D4). On the following morning, the appellant contacted PW1 by way of WhatsApp and asked what the two pieces of goods were, and PW1 replied that they were supplements. The appellant then said that she thought they were “superfluous”, meaning that there was no owner, and so [she] took them away and she would re-purchase them for PW1, and PW1 also agreed and told the appellant to select delivery of the goods to the shop on 13 December after placing the order (Defence exhibit D3). And afterwards, PW1 received the goods concerned.

14.The appellant agreed that the subject exhibits, P4 and P5, did not belong to her. PW1 or PW2 never authorised her to take away the subject goods. And on that day, she did not ask PW2 whether she could take P4 and P5 home either. However, the appellant did not agree that when she took away the subject goods, she knew that doing so was dishonest.

Reasons for Conviction

15.Regarding the general issue, the magistrate was of the view that the only issue in this case was whether the appellant had dishonest intent. She took the view that merely depending on whether the appellant used wordings like “stole” or “took/got” or “greed” under caution, it could not accurately reflect from the literal meaning what the appellant actually thought. Therefore, when considering the final verdict, she attached limited weight to the content of the two records of interviews, which would not affect the final verdict on the general issue[7].

16.As for the testimonies of PW1-PW3, the magistrate was of the view that their testimonies provided background information for the court to draw inferences[8]. After an analysis of the evidence, the magistrate did not accept the appellant’s claim that she had misunderstood that the subject goods were abandoned items. She did not accept her to be an honest and reliable witness and attach no weight to her evidence. She took the view that as the appellant found that a signature had been put to acknowledge receipt of the goods concerned and according to the inventory record, they should not have appeared at the warehouse and so even if the goods went missing, it would not be easily discovered and there was no way to track them down, hence [she] stole the goods concerned dishonestly[9]. Therefore, the magistrate found that the prosecution had proved their case successfully to the standard of beyond reasonable doubt and found the appellant guilty of the offence of theft[10].

Reasons for Sentence

17.The magistrate took into account the mitigation for the appellant, and agreed that the subject goods were not of high value when compared to those in cases of the same kind and after the incident came to light, PW1 was at once compensated by the appellant and so on. On the other hand, she pointed out that the seriousness of this case was that the appellant acted in the capacity of a warehouse attendant of the company and obviously had weak law-abiding awareness[11].

18.In view of the content of the appellant’s background report, the deep self-reflection that she appeared to have had after being remanded in custody and the fact that she had been remanded for 14 days, the magistrate decided to give her a chance and sentenced her to two months’ imprisonment, which was suspended for 24 months[12].

Grounds of Appeal

19.Regarding the conviction, the several complaints below were set out in the appellant’s “Perfected Grounds of Appeal”:

(1) The magistrate did not fully consider the fact that the appellant had a clear record, and neglected that her propensity to commit crime was relatively low;

(2) The magistrate erroneously found that the appellant had dishonest intent;

(3) The magistrate erred in failing to consider that the appellant did not have the intent to deprive “another person” of her property; and

(4) The relevant CCTV footage was misunderstood, the appellant was not given a chance to explain, and the appellant’s actions were erroneously reckoned to be evasive.

20.Regarding the sentence, the several complaints below were set out in the appellant’s “Perfected Grounds of Appeal”:

(1) The appellant was erroneously reckoned to have committed a breach of trust; and

(2) Taking all the circumstances of the case into account, the sentence imposed on the appellant was manifestly excessive.

Legal Principles concerning Appeals

21.A magistracy appeal is conducted by way of “rehearing” on the evidence before the magistrate: Chou Shih Bin v HKSAR[13]. In HKSAR v Ip Chin Kei[14], McWalters J (as he then was) summarised the legal principles concerning the approach to magistracy appeals, which included the following:

(1) The appellate court will only depart from the lower court’s finding of fact and assessment of a witness’s credibility where the trial magistrate’s finding of fact is plainly wrong;

(2) The test in deciding whether the trial magistrate has erred so that an appeal should be allowed is whether it is just for the conviction to be quashed;

(3) Notwithstanding the absence of any error by the trial magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”. The appellate court is therefore required to closely examine whether on the evidence adduced, the charge is proved beyond reasonable doubt, failing which the appeal should be allowed.

22.On point (1), the appellate court is required to have regard to the fact that the trial magistrate enjoyed the advantage of having seen and heard the witnesses giving evidence, which it does not enjoy: Raymond Chen v HKSAR[15]. In general, the credibility and reliability of a witness is within the assessment of the trial magistrate. As Barnes J pointed out in HKSAR v Chan Wai Yip Albert[16], when the findings of the trial magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the trial magistrate has misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.

23.Stock J (as he then was) pointed out in R v Kwong Wing On[17] that microscopic dissection of a transcript will always uncover something unreasonable, a failure to answer a question, a piece of evidence not included in witness statements, and a myriad of bits and pieces upon which to build pages of grounds of appeal. Even with truthful witnesses, the circumstances are the same. Thus, a magistrate is not expected by the appellate court to deal expressly with every detail to which the defence may be able to point. The court would also encourage the magistrate to take a realistic attitude to deal with the attacks on the evidence of the witnesses[18].

Considerations – Appeal against Conviction

Ground of Appeal (1): Incomplete “Good Character Direction”

24.Regarding this ground of appeal, the magistrate’s verbal reasons for conviction were in fact almost identical to her Statement of Findings. In the latter, she stated[19]:

“35. The court has also been told that the defendant has a clear record. I have reminded myself to give directions favourable to the defendant when considering her testimony. I have also borne in mind that the burden of proof lies on the prosecution to the standard of beyond reasonable doubt”

25.That the appellant had a clear record was one of the “admitted facts” of this case[20]. Mr Pun, counsel for the appellant, contended that the principal issue in this case was whether the act of the appellant concerned was dishonest, and whether she genuinely believed that the subject goods had no owner. Therefore, apart from the higher credibility of the appellant’s evidence, her lower propensity to commit crime was also a significant consideration. However, in either her verbal verdict[21] or Statement of Findings, the magistrate only reminded herself to give directions favourable to the appellant when considering her testimony, and did not mention the appellant’s lower propensity to commit crime. Mr Pun submitted that this was a critical omission, rendering the conviction unsafe and unsatisfactory. In support of his argument, he cited the following cases: R v Chan Wu-nam[22]; R v Lai Lam-hing[23]; HKSAR v Chan Yuk Kwan (transliteration)[24]; and HKSAR v Tsang Suk Lan (transliteration) and Wong Man Hon (transliteration)[25].

26.In a criminal case tried by a jury, a complete “good character direction” includes two aspects, “credibility” and “propensity”, that is to say, when compared to a person without good character, a person of good character has higher credibility and lower propensity: R v Vye[26]. Of course, whether to give a “good character direction” or not is a decision of the trial judge on the basis of the specific circumstances of the case. If the trial judge decides to give the jury a “good character direction”, apart from the defendant’s “credibility” and “propensity”, the following paragraph may also be adopted[27]:

“You have heard that the defendant is a person/young person of good character [meaning not only that he has a clear record, but also that he has the good qualities stated by the witness[es]]. Of course, good character itself cannot be a defence against a criminal charge, but when you are considering the following matters, you should regard his good character as evidence in his favour.”

27.As to under what circumstances the trial judge should give to the jury a “good character direction” and what consequences there will be if that is not done, the local authority is the Court of Final Appeal’s majority opinion in Tang Siu Man v HKSAR (No 2)[28]. The defendant of that case was convicted of one count of “Manufacture of a dangerous drug” and one count of “Trafficking in a dangerous drug”. In summing up, the trial judge mentioned the defendant’s criminal record, but directed the jury to regard him as a person of good character, and gave the “credibility” direction, but not the “propensity” direction. The Court of Appeal dismissed the defendant’s appeal against conviction, and he appealed to the Court of Final Appeal. The defendant submitted that since the trial judge had decided that he should be regarded as a person of good character, the “credibility” and “propensity” directions should have been given. The Court of Final Appeal held by a majority that the Vye direction (namely an unchanged practical rule that a person of good character was entitled to the “credibility” and “propensity” directions unless such directions were absurd) did not apply to Hong Kong and dismissed the defendant’s appeal. In the main judgment of that case, Litton PJ concluded on the relevant legal principles as follows:

“Conclusion

(1) There is no need in this jurisdiction to impose the Vye and Aziz regime on trial judges. The regime has not been demonstrated to work well in other jurisdictions. At the extremity, those rules of practice require trial judges to give directions testing the limits of common sense, and then to add qualifications in an attempt to return to the confines of common sense. Whatever the imperatives making that regime desirable in England, none has been demonstrated here.

(2) Where positive evidence of good character has been adduced and nothing discreditable concerning the defendant has emerged, a summing-up which fails to give a full Vye direction – and if needs be something more – might well render the summing-up unbalanced and unfair.

(3) As a matter of humanity and indulgence – expressing the traditional inclination of the common law in favour of the defendant in criminal trials, springing from “the time when the law was according to the common estimation of mankind severer than it should have been” per Cockburn CJ in R v Rowton (1865) 10 Cox CC 25 at p.30 – trial judges have often in practice given both limbs of the good character direction on mere absence of previous convictions. They will doubtless continue to do so in the future. Sometimes one limb of the direction is enough: for example, where in essence the central issue is credibility and an inclination on the part of the jury to believe the defendant means in effect he is entitled to an acquittal: to fail to give the “credibility” direction in such circumstances may well render the summing-up unbalanced and unfair: to give the “propensity” limb may be a surplusage.

(4) “Absence of previous convictions” is a concept indulgently construed by trial judges. One or two minor offences, not related to the charges in question, may be overlooked. A string of offences, even though unrelated, will begin to strain against common sense in the context of “good character”. The judge’s margin of assessment is wide in this area.

(5) Where a person with a clear record is before the court, but in the course of the trial, discreditable matters concerning him (or her) are revealed, the judge again has a wide margin of assessment. Dishonest conduct, to borrow an example from Thomas J’s judgment in R v Falealili [1996] 3 NZLR 664, may be very relevant to credibility, but irrelevant to propensity towards sexual offences. To simply give the “propensity” direction alone may be appropriate – or none at all.

(6) At the end of the day, the summing-up will be looked at by the appellate courts to see if it is fair and balanced. That is the ultimate test.” (emphases added)

28.In HKSAR v Mohammed Saleem (No 2)[29], when interpreting Tang Siu Man v HKSAR (No 2), the Court of Appeal pointed out that even if there was evidence of the defendant’s good character, the court did not necessarily have to give directions on “credibility” and “propensity”. If there was evidence showing that the defendant had positive good character, and he did not show any discreditable conduct, then failure to give a full Vye direction to the jury might render the judge’s summing-up unbalanced or unfair. If the defendant merely had a clear record, but there was no evidence of positive good character, then it was not necessarily a reason to give a “good character direction”. “Discreditable conduct” may be related to or contemporaneous with or peripheral to the act particularised in the charge against the defendant.

29.In HKSAR v Tam Ho Nam (No 2)[30], the defendant was convicted of murder after a retrial. He pleaded not guilty to murder but admitted that he was provoked and so he killed his girlfriend with a knife, and it was manslaughter. The defendant had a clear record and a witness testified on his non-violent personality and temperament. One of the grounds of appeal against conviction was that the judge gave to the jury a “good character direction” only on the “credibility” of his evidence, but not on “propensity”. His appeal was dismissed. The Court of Appeal cited R v Richens[31] and Tang Siu Man v HKSAR (No 2), as mentioned above, and took the view that given the circumstances of that case, it was unassailable for the trial judge not to give the “good character direction” on propensity.

30.The Court of Appeal pointed out in a number of cases that even if a full “good character direction” should be (but was not) given, that, in itself, might not necessarily render the conviction unsafe. The ultimate test was whether the judge’s summing-up as a whole was fair and balanced: see HKSAR v Siti Handayani[32].

31.The Court of Appeal pointed out in R v Lin Kae-tzong[33] that when a case was tried in the District Court or the Magistrates’ Court, the trial judge or magistrate was not required to give himself or herself a Berrada or Vye direction. Unless otherwise indicated, the appellate court should assume that the lower court was well aware of the evidence on the defendant’s good character and had attached appropriate weight to it: R v Fok Tin Yau[34].

32.Turning back to this case, regarding the clear record of the appellant, the magistrate reminded herself “to give directions favourable to the defendant when considering her testimony”. The meaning of this sentence was relatively vague. However, I tend to take the view that she intentionally did not give the direction on propensity for the following reasons: (1) From the meaning conveyed by her use of words, [namely] “her (the defendant’s) testimony” as said by the magistrate, it appeared that she meant to emphasise the consideration on the “credibility” of the appellant’s evidence; (2) where appropriate, for a defendant of “good character”, even if he did not give evidence or did not reply under caution, the court may still be required to consider his propensity to commit crime. This is a well-established legal principle, which the magistrate should know; (3) In this case, there was no evidence of the appellant’s “positive good character”, and therefore the magistrate had considerable discretion as to whether to give a “good character direction” or not. (2) and (3) above are well-established legal principles, which the magistrate should know.

33.Whether or not the absence of the magistrate’s direction on the appellant’s propensity was intentional, it did not necessarily affect the conviction. As stated earlier, the ultimate test was whether it would render the circumstances unfair or unbalanced. Regarding this point, I am of the view that it would not. The reasons are as follows:

(1) Although the appellant did not consider herself dishonest, the evidence before the magistrate showed that she did perform some acts that could be regarded as “discreditable conduct” - namely without authorisation or permission and without asking the colleagues, she took from the shop goods that she knew did not belong to herself, and the goods were in intact packing and state and of considerable value. Solely for this reason, according to Tang Siu Man v HKSAR (No 2) and HKSAR v Mohammed Saleem (No 2), the magistrate in fact was not required to give herself the direction on the appellant’s “propensity”;

(2) When giving evidence, the appellant did not deny that she performed the act of “taking without asking”, but she explained why she was not dishonest. The crux of this case was the “credibility” of the appellant’s explanation. Immediately before giving the direction favourable to the appellant’s evidence, the magistrate stated, “the burden of proof lies on the prosecution to the standard of beyond reasonable doubt”. From this, it can be seen that the magistrate fully understood that even if the appellant’s explanation might be true, she would have acquitted the appellant. Therefore, according to Tang Siu Man v HKSAR (No 2), it was sufficient for the magistrate to give herself the “credibility” direction only. If the “propensity” direction had been added, not only would it have been unnecessary, but it would even have “ruined the effect by adding something superfluous”; and

(3) The appellant admitted under caution upon the arrest, “Out of momentary greed, I stole [them] for my own consumption” [35]. Subsequently, she said under caution, “My momentary greed was aroused, and [I] put the above items into [my] own backpack, intending to take [them] home after knocking off work for my own consumption”[36]. In respect of the above utterances that, I believe, would be regarded by ordinary people as clear admissions, the magistrate said:

“33. Nevertheless, I am of the view that the focus of this case is whether the defendant had dishonest intent. Merely depending on whether the defendant used wordings like “stole” or “took/got”, with the latter being relatively neutral, or how “greed’ should be defined, it cannot accurately reflect from the literal meaning what the speaker, namely the defendant, actually thought at that time. Therefore, when I am considering the final verdict, I attach limited weight to the content of these two records of interviews, or there is even no need to consider these two records. Thus, even if I give a different ruling on the special issue, it will not affect the final verdict on the general issue.”

I am of the view that when the magistrate was analysing the evidence, not only was it fair and balanced as a whole, it could even be said that it was an approach relatively favourable to the appellant.

34.In the light of the above, regarding the absence of the “propensity direction” on the appellant’s “clear record”, I am of the view that it would not render the appellant’s conviction unsafe or unsatisfactory.

Ground of Appeal (2): Dishonest Intent

35.Mr Pun contended that the appellant did not know that the subject goods belonged to PW1 on the day of the incident. When she found that PW1 was the owner, she at once contacted PW1 and placed a new purchase order of the goods as compensation for PW1. The WhatsApp conversation between the appellant and PW1 (D3[37]) showed exactly what was in her mind at that time, namely that the subject goods were “superfluous”. During examination-in-chief, the appellant also explained that she thought the goods had no owner. Under such circumstances, the magistrate should have considered section 3(1)(c) of the Theft Ordinance[38] and acquitted the appellant because that section addressed the subjective thinking of the defendant: Smith’s Law of Theft, 9^th edition, 2.187-2.284 and R v Adrian Anthony Small[39].

36.In respect of the above submission, the first issue that I have to deal with is what actually the magistrate’s finding on the appellant’s state of mind was, and whether it was like the appellant said, “thought that the subject goods had no owner”. The magistrate stated in the relevant paragraphs of her Statement of Findings[40]:

“37. Firstly, the defence counsel often emphasised that in the clauses of the company, there was a three-day limit for storage in the warehouse. If [the goods] were not collected beyond that limit, the order would be cancelled without separate notification or refund. This clause in fact was not related to this case, because this clause only applied to goods of which a signature had not been put for acknowledgment of receipt. A signature had already been put for acknowledgment of receipt of the goods in this case. Moreover, the goods arrived and a signature was put for acknowledgment of receipt on 29 November, and the defendant took away the goods on 30 November. The goods were not stored in the warehouse for as long as three days. Besides, the clause concerned only changed the owner of the goods from the original purchaser back to the company, HKTVmall. It would not change the goods to something that could be thrown away casually or that had no owner. Even when the defendant was testifying, she admitted that this clause was not related to the facts of this case.

38. In addition, the defence also often emphasised that fresh food would perish and rot. When no one collected [it/them], there was no need for the staff of the shop to send the goods back to the warehouse and could throw them away directly. Such a statement was not supported by the evidence of any of the prosecution witnesses. They unanimously said that even if the goods concerned could be thrown away, it had to go through a series of procedures, including photo-taking, reporting to the [chat] group, obtaining an approval from the superior and reporting to the customer service department. When giving evidence, the defendant explained that she was a part-time staff member. She was normally not responsible for the return-to-the-warehouse procedures. She did not know the relevant procedures, nor did she know the procedures stated by the prosecution witnesses above. However, in any event, the subject goods were not fresh goods, nor were they food that was perishable like sashimi or frozen meat mentioned by the defence as examples. So in fact the two could not and should not be mentioned in the same breath.

39. Besides, when the defendant was testifying, she always claimed that she was only a part-time staff member and was not familiar with the return-to-the-warehouse procedures. If she was not familiar with them, why did she make a decision without authorisation to reckon the goods concerned as not belonging to anyone and regard them as something that could be treated as thrown away items and take them for her own use?

40. In fact, the WhatsApp conservation between the defendant and PW1 in D3 actually showed exactly what the defendant had in mind at that time, namely that she thought the goods concerned were “superfluous”. Under cross-examination, she also explained that she thought the goods had no owner; but it was not that she thought the goods were going to be thrown away and took them away in order not to waste them.

41. A reasonable person knows that even if the owner who originally ordered the goods abandoned the goods in the company, HKTVmall, for various reasons, the company, HKTVmall, still had the right to own and deal with the goods concerned. Such reasoning was not difficult to understand, and there were examples that could be followed from the working experience of the defendant, because the so-called G99 return-to-the-warehouse procedures that the defendant dealt with were exactly returning goods, which no one claimed for or had been delivered repeatedly, to the head warehouse of HKTVmall for disposal.

42. In addition, [as seen] from the CCTV footage viewed in court, the defendant’s actions and demeanour when handling the goods concerned were, as described by the prosecution, evasive. At around 133119 hours, the defendant inspected the goods concerned. Later, when PW2 entered the warehouse from the front of the shop twice, the defendant at once put the goods concerned aside. At another time, [she] at once picked up the computer and pretended to be working. After PW2 had left, she resumed tidying up the goods concerned and put them into her bag. If what happened was like what the defendant claimed, [that is] she genuinely reckoned that she had the right to take away the goods, why did she need to act in such an evasive way?

43. I am of the view that from the packing of the goods and the information shown on the counting device, the defendant indeed would not have known the goods were ordered by PW1. And it was also for this reason that after the defendant found that PW1 was the owner, she at once sent messages and re-purchased the goods concerned as compensation for PW1. However, a person with dishonest intent to permanently deprive another person of property did not need to know the true identity of the owner, and so it does not affect the court’s finding that the defendant was dishonest. Therefore, the court does not accept the defendant’s account that she misunderstood the goods were abandoned items. [The court] does not accept her to be an honest and reliable witness, nor attach weight to her evidence.” (emphases added)

I have carefully compared the above text and the magistrate’s verbal reasons[41]. The latter is similar to the above text, with differences between verbal and textual expressions only.

37.From the context of the above paragraphs, it could be clearly seen that paragraph 40, which the appellant relied on, in fact was not the magistrate’s finding of fact on the appellant’s state of mind. The magistrate was only quoting the appellant’s evidence in paragraphs 37-40, and stating the reasons why she did not accept the appellant’s evidence. The magistrate’s finding of facts on the appellant’s state of mind was in paragraph 43, namely that the appellant indeed would not have known that the subject goods were ordered by PW1. But this did not affect the conviction, because in order to convict, the appellant’s knowledge of the owner’s true identity was not required. Even if they were goods that no one claimed for or had been delivered repeatedly, the company still had the right to own and deal with them. Moreover, from the appellant’s actions and demeanour at that time, it could be seen that she did not genuinely reckon that she had the right to take away the goods. Eventually, the magistrate did not accept the appellant’s account that she misunderstood that the goods were abandoned items.

38.Whether or not the defendant was “dishonest” was an element of the offence of “theft”, which was indispensable for a conviction. As for the definition of “dishonest”, the two-stage considerations[42] of section 3 of the Theft Ordinance and R v Ghosh were rather fundamental and well-known legal principles. Even though the magistrate, being a professional judge, did not specifically mention them in her Statement of Findings, unless there were signs to the contrary, I could assume that she was definitely aware of them and had already considered them: HKSAR v Kwok Chi Wah[43].

39.Regarding the definition of “dishonest” in the Theft Ordinance, a two-stage approach for consideration were put forward in Ghosh. I borrow from HKSAR v Chan Ting Kwan Tyrone[44] the Court of Appeal’s interpretation of the relevant law as follows[45]:

“33. It was pointed out in Ghosh that when a judge was to find whether a defendant was dishonest or not, considerations had to be made at two separate stages. The first stage was that if a judgment was made according to the ordinary standards of reasonable and honest people (hereinafter referred to as “those standards” for short), was the defendant’s act dishonest? If his act was not dishonest according to those standards, that was the end of the matter and the offence could not be established. The second stage was that if the defendant’s act was dishonest according to those standards, then consideration was to be made on whether he actually knew that according to those standards, his act would be regarded as dishonest by ordinary people.

34. According to Ghosh, under most of the circumstances, when the defendant’s act was obviously dishonest according to those standards, for instance, a defendant committed robbery on the street, it would be certain and undoubted that his act was dishonest, and it was obvious that the defendant himself knew that his act was dishonest. Even though the defendant strongly asserted or firmly believed that his act was in line with morality and justice, but if he knew well that his act would be regarded as dishonest by ordinary people when judged according to those standards, but he clung obstinately to his own course, then he was still dishonest. For instance, although Robin Hood, the “chivalrous robber”, firmly believed that robbing the rich to give to the poor was righting wrongs in accordance with heaven’s decree, but if he knew well that it would be regarded as dishonest by ordinary people, then when the court was making the consideration at the second stage, he should be found dishonest.

35. Following Ghosh, a number of cases cited and elaborated on the principles of Ghosh. One of the cases was R v Small (1988) 86 Cr. App. R. 170. In Small, the Court of Appeal of the United Kingdom made the following explanation:-

“In considering whether a belief is honest or not, it seems to us that a belief can, in certain circumstances, be honest or genuinely held, even though it is not reasonably held. The relevance of reasonableness is this. It is certainly relevant as to whether the belief was in fact held, because the fact that such a belief would be objectively viewed as unreasonable is a factor--and a strong factor--for the jury to take into account first in considering whether that belief was held, and secondly, if held, in considering whether it was honestly held.”

And that is to say, under certain circumstances, even though a certain belief was unreasonable, it could still be honestly and genuinely held. The relevance of whether that belief was reasonable or not is that when the court has to find whether a defendant honestly and genuinely held that belief, whether that belief would be objectively viewed as reasonable is one of the important factors for consideration. However, the Court of Appeal of the United Kingdom also stated clearly that although a certain belief was unreasonably held, it did not necessarily mean that the defendant definitely did not honestly or genuinely hold that belief. As shown by the above paragraph, it is only one of the factors, though an important one.

I understand that the test of the two-stage considerations (the second stage of which in particular) in Ghosh was no longer followed for a long time in the United Kingdom: Ivey v Genting Casinos (UK) Ltd (t/a Crockfords Club)[46]; Barton[47]. Ivey has not yet been adopted by the higher courts in criminal cases in Hong Kong: HKSAR v Lai Kin Hang Erwin & Ors[48]. I am of the view that if the test in Ivey was followed, it might be unfavourable to the appellant. However, since this case has not been cited for the appellant or the respondent, I will not make a judgment on this. In the following discussion, I will base on the test of the two-stage considerations in Ghosh still being the common law applicable in Hong Kong.

40.Mr Pun submitted that the magistrate stated in paragraph 41 of the Statement of Findings, “A reasonable person knows” and used the wording “In fact, a reasonable person knows”[49] in the verbal verdict, and these showed that she judged whether the appellant was dishonest or not only according to the ordinary standards of reasonable people and neglected the second stage of the considerations of Ghosh.

41.I do not agree with the above submission. In view of the context, the magistrate used [the expressions], “A reasonable person knows” and “In fact, a reasonable person knows”, so as to highlight that the appellant’s account was contrary to common sense and incredible. As for the magistrate’s findings that the appellant did not genuinely believe that the subject goods were abandoned items and that she was not an honest or reliable witness, her reasons were as follows:

(1) The company’s clause that for goods that were not collected after the time limit, the order would be cancelled without separate notification or refund was not related to this case, because that clause only applied to goods of which a signature had not been put for acknowledgment of receipt[50];

(2) The subject goods had stayed in the shop for only a short period of time and were then taken home by the appellant: they arrived at the shop and PW2 signed to acknowledge receipt on 29 November, but were taken away on the following day (30 November)[51];

(3) The appellant could not offer a tenable statement: on the one hand, she claimed that she was only a part-time staff member and was not familiar with the return-to-the-warehouse procedures, but on the other hand, she regarded the subject goods as items that could be thrown away and took them for her own use without authorisation[52];

(4) The appellant’s account was contrary to common sense, because even if the owner had abandoned the goods in the shop, the company still had the right to own and deal with them. From the appellant’s working experience, there were previous examples that could be followed, because she claimed that she “might have done G99”[53], and G99 procedures were exactly relating to the return of goods, which no one claimed for or had been delivered repeatedly, to the head warehouse of HKTVmall for disposal[54]; and

(5) As seen from the CCTV footage (P2), when the defendant was dealing with the subject goods, her actions were evasive, and it showed that she did not genuinely reckon that she had the right to take them away[55].

42.The above (1)-(4) were related to the inherent improbability of the appellant’s evidence; they were not related to her words or deeds. I agree with the magistrate’s views. As for (5), which is the main theme that Ground of Appeal (4) addresses, I will discuss it below.

43.The appellant testified that she misunderstood that the subject goods had no owner, meaning that they were abandoned property, and so it was not dishonest of her in taking them home and keeping them for her own use. Regarding this, the magistrate found it incredible. If this finding was correct, I am of the view that there was in fact no need for the magistrate to further consider section 3(1)(c) of the Theft Ordinance. It was because although the onus of proof was on the prosecution, if the appellant’s evidence was incredible as a whole, there was in fact no basis for the magistrate to take the view that the appellant might believe that she had taken reasonable steps but still could not discover their owner.

44.As for whether it was safe for the magistrate to make the finding of fact that the appellant’s evidence was incredible as a whole, I will consider it at the same time when I deal with Ground of Appeal (4).

Ground of Appeal (3): Intention of depriving the other of the property

45.According to section 2(1) of the Theft Ordinance, the prosecution was required to prove that the appellant had “the intention of permanently depriving the other of the property”. Therefore, the prosecution must prove that the appellant knew that the items concerned belonged to “the other”: R v Adrian Anthony Small (above); and Regina v Smith (David)[56].

46.Regarding this, Mr Pun contended that as the magistrate had already found that at that time in the appellant’s mind, she thought that the goods concerned had no owner, and that meant it was not possible for her to have the intention of permanently depriving “the other” of the property, because the two could not co-exist. However, the magistrate did not consider this point.

47.The above submission was entirely based on a wrong presupposition, because the magistrate did not find that the appellant “thought that the goods concerned had no owner”. I have already discussed it above and will not repeat it here. Without this wrong presupposition, this complaint cannot stand at all.

Ground of Appeal (4): Misinterpretation of the CCTV footage (P2)

48.This Ground of Appeal addresses the following findings by the magistrate in particular[57]:

“42. In addition, [as seen] from the CCTV footage viewed in court, the defendant’s actions and demeanour when handling the goods concerned were, as described by the prosecution, evasive. At around 133119 hours, the defendant inspected the goods concerned. Later, when PW2 entered the warehouse from the front of the shop twice, the defendant at once put the goods concerned aside. At another time, [she] at once picked up the computer and pretended to be working. After PW2 had left, she resumed tidying up the goods concerned and put them into her bag. If what happened was like what the defendant claimed, [that is] she genuinely reckoned that she had the right to take away the goods, why did she need to act in such an evasive way?” (emphases added)

As seen from the above, the magistrate reckoned that the appellant’s “actions were evasive” due to two reasons:

(1) When PW2 entered the warehouse from the front of the shop for the first time, the appellant at once put the goods concerned aside;

(2) At another time, the appellant at once picked up the computer and pretended to be working.

49.Mr Pun pointed out that P2 had a number of channels, and the magistrate’s observation above relied only on the video recording of channel 6, but in fact channel 4 was also relevant. Regarding the magistrate’s observation of the appellant, Mr Pun put forward two complaints:

(1) The footage of channel 4 showed that at 13:30:00 hours, PW2 was working at a position of the front of the shop which was very close to the warehouse, and at that time, the appellant was inspecting the goods concerned (screenshot (4))[58]. Then, PW2 walked away for a few steps. At 13:31:13 hours, the appellant started putting the goods concerned back into the carton box, and PW2 was still facing the outside of the shop (probably attending to a customer) (screenshot (5))[59]. At 13:31:15, PW2 started turning his body, facing the warehouse (screenshot (6))[60]. At this juncture, the appellant had already put the items concerned back into the box and started putting that box of goods aside, and at 13:31:16 hours, the entire box of items was already put aside (screenshot (7))[61]. Then, PW2 entered the warehouse, and at 13:31:19 hours, near the doorway of the warehouse, a barcode device was handed to the appellant, and the appellant then used that device for work (screenshot (8))[62]. Since the magistrate did not watch channel 4, she misunderstood that the appellant put that box of items aside only because PW2 entered the warehouse, and hence formed the view that the appellant’s “actions were evasive”.

(2) As for the magistrate’s statement that the appellant “at another time, at once picked up the computer and pretended to be working”, it was believed that [she] was referring to around 13:46:30 hours, which was after PW2 had entered the warehouse, the appellant did pick up a portable computer: channel 6 (screenshot (9))[63]. This part of the footage had been played in court, but the prosecution never alleged that the appellant picked up the computer in order to “pretend to be working”, and the magistrate never told the defence counsel that she had a view either. It was only when the magistrate was delivering her verbal verdict that she said for the first time that the appellant “picked up the computer and pretended to be working”. In fact, after 20-odd seconds, (at 13:46:56 hours) PW2 was using that computer (screenshot (10))[64]. The appellant could explain this, but the magistrate did not give her a chance, and this was not fair to her: HKSAR v Xiang Yaozhi and another[65].

50.Miss Tang, Public Prosecutor, for the respondent, produced a summary of the events that took place inside the warehouse of the subject branch on the material day according to what was seen from P2, and Mr Pun for the appellant did not express any objection to the following:

Time shown	Channel	Event
12:25:26	6	The appellant put on the uniform.
12:52:12	7	The appellant tidied up the goods, and picked up that carton box of goods for the first time.
13:29:00-13:33:53	6	The appellant checked a barcode device and a mobile phone, opened that carton box of goods, and took out one of the boxes of subject items for checking. At 13:31:13 hours, the appellant put that subject item back into that carton box of goods, and then put down that carton box of goods, and placed another unopened carton box on top covering it. At the same time, PW2 entered the warehouse, handed a barcode device to the appellant and then left. At 13:32:35 hours, the appellant left the warehouse, and later on, at 13:32:59 hours, [she] returned. At 13:33:39 hours, the appellant took out a number of boxes of the subject items from that carton box of goods, and put them on a storage shelf/rack on the side, and then folded that carton box.
13:44:02-13:46:46	6	The appellant first took her backpack down from the goods shelf/rack and put it on a round stool, and put the subject items into the backpack, and later on, she opened the packing of the subject items and put them into the backpack. At 13:46:29 hours, PW2 entered the warehouse. At the same time, the appellant picked up a computer from the floor and put it aside, and tried to zip up the zipper of the backpack, but the backpack fell down onto the floor. The appellant picked up the backpack from the floor, and put a windbreaker into the backpack.

It is worth noting that when the appellant put the subject goods into her backpack, PW2 had not yet entered the warehouse.

51.Regarding complaint (1), I agree that at 13:31:13 hours, the appellant had already started putting the goods concerned back into the box, and then at 13:31:16 hours, [she] put the entire box of items aside. At 13:31:19 hours, PW2 entered the warehouse. Therefore, it was unsafe for the magistrate to say that when PW2 entered the warehouse from the front of the shop for the first time, the appellant “at once” put the goods concerned aside and hence form the view that her “actions were evasive”.

52.Regarding complaint (2), I have to point out that the court decides a case on the basis of adduced evidence, and during the process, the court may make references to but is not limited by the submissions put forward by counsel; and the court is entitled to consider perspectives that have not been put forward by counsel. The magistrate might but did not have the duty to state clearly to the parties the interpretations and renditions that she intended to make as well as the train of thought and process of analysis of the decisions that she intended to make and invite them to comment before making the findings of facts concerned. Common examples include evidence regarding identification. In HKSAR v Yeung Ka Lun[66], the Court of Appeal pointed out that:

“45. The trial judge described in his reasons for verdict the protruding upper front tooth/teeth of the applicant and the offender, and gave a proper account of the relevant circumstances. This court is of the view that the trial judge was entitled to and must consider all relevant evidence in order to make the findings of facts that he had to make. That the parties did not put forward certain arguments did not affect the powers and duties of the trial judge. That the trial judge did not mention to the parties the characteristics of the upper front row of the applicant’s teeth nor invite them to make further statements about these characteristics to the court did not constitute an unfair trial, nor did it render the conviction concerned unsafe.” (emphases added)

See also HKSAR v Lim Wai Lung Patrick Christian & Ors[67]. Besides, there was no difference between the basis on which the magistrate found the appellant guilty and the prosecution case, that is to say the appellant dishonestly took without asking from the shop where she was working goods that did not belong to her and took them for her own use. It was only that regarding which part of the adduced evidence could support the prosecution case, her points of view and those of the prosecutor were not entirely unanimous. The case that the appellant relied on, HKSAR v Xiang Yaozhi and another, which was related to the duty of the prosecution to put their case to the defence witnesses during cross-examination, was not the circumstances of this case. This case was related to whether the court (as a finder of facts) could come to any safe conclusions from observation of the exhibits. The two were not the same.

53.I am of the view that the crux of complaint (2) was whether the magistrate’s finding was in fact unsafe in stating that when PW2 entered the warehouse from the front of the shop for the second time, the appellant “at once picked up the computer, and pretended to be working”. As seen from the screenshot[s], soon after PW2 entered the warehouse again, he also used the same computer. Therefore, there might be an innocent reason for the appellant to pick up the computer before PW2 entered, but it appeared the magistrate did not exclude such a possibility, nor did she consider all the relevant evidence (including the video recording of channel 4). But if she had done so, she might not have formed the view that the appellant’s “actions were evasive” because PW2 entered the warehouse. The reason was that as seen from channel 4, before PW2 turned his body to enter and face the warehouse, the appellant had already put the carton box in place. Under such circumstances, I am of the view that this finding of the magistrate was unsafe.

Was the appellant’s evidence still incredible

54.So, was it still correct for the magistrate to reject the appellant’s evidence? As stated earlier, the magistrate provided 5 reasons, (1)-(5), for not accepting the appellant’s evidence. In the light of Ground of Appeal (4), I agree that (5) was not safe, but (1)-(4) were related to the inherent improbability of the appellant’s evidence and were not related to the appellant’s words or deeds, and were not affected by Ground of Appeal (4). Apart from the above matters mentioned by the magistrate, I also have the following observations:

(6) According to the evidence of PW2 accepted by the magistrate, on 29 November 2020, he collected the goods at the warehouse of the subject branch, and casually put that carton box of goods in the red plastic container, and it was his impression that the carton box was not damaged at that time[68]. Subsequently, he did not move those goods further. On 30 November, PW2 came to work again and was on duty together with the appellant. It could be seen from this that when the appellant saw the subject goods, they should still be in intact packing and state. As seen from the video recording footage, the appellant opened the carton box and checked the items inside. Thus, I am of the view that the only reasonable inference was that she knew what goods were in the carton box and the state of the goods;

(7) Even children know what “non-appropriation of lost property” means. The subject goods were 5 packs of lingzhi capsules and 3 boxes of fish calcium tablets valued at about $1,200 in total, which were of considerable value. Although the appellant was a part-time staff member, she had already worked at the subject branch for over one month[69]. The barcode device showed that the customer had already “received the goods” and not “returned the goods”. It was indeed incredible to say that the appellant, without trying to contact the customer for verification or discussing with her colleagues, asserted that the subject goods “had no owner” and even believed that she could fairly and reasonably appropriate them; and

(8) The appellant at first said in Whatsapp message[s] that she thought the subject goods were “superfluous”[70] and later on explained in her testimony that she thought those goods had no owner, but whichever account it was, it was incredible. According to the appellant’s account, a customer purchased goods online, the record in the shop showed that the customer had already collected the goods but the goods were still in the shop. I consider the following two situations: (1) The customer had already paid, and the company did not arrange for refund. So, unless the appellant knew that the customer had already stated clearly that the goods were given up, an ordinary person would not rashly put the goods into his/her own backpack because the customer might return to the shop to retrieve his/her goods at any time. What the appellant did was contrary to common sense; (2) If the customer had not paid for the goods or the company had agreed to refund, the goods still belonged to the company. If the appellant appropriated the goods, the company would suffer a loss. There was no reason why she did not know.

The above matters, which were all based on the undisputed or indisputable evidence before the magistrate and were also related to the “inherent improbability” of the appellant’s evidence and were not related to the appellant’s words or deeds, would not be affected by Ground of Appeal (4) and were not in conflict with Raymond Chen v HKSAR or HKSAR v Ip Chin Kei.

55.Although I am of the view that the magistrate should not have formed the view that the appellant’s “actions were evasive” at that time because of what she saw from part of the CCTV footage, on the basis of (1)-(4) that the magistrate relied on, I am of the view that the magistrate’s finding that the appellant’s evidence was incredible was still a correct judgment, especially upon taking (6)-(8) above into consideration.

56.As seen from the video recording, the appellant took the subject goods without asking and put them into her own backpack. Based on the accumulated weight of the evidence before the magistrate and applying the two-stage considerations of Ghosh, I am of the view that the only reasonable inference was that the appellant’s act was “dishonest”. Having considered all the evidence of this case and the submissions made for the appellant and the respondent, I concur that the magistrate’s conviction of the defendant was a correct decision. If necessary, I will exercise the powers vested by section 119(d) of the Magistrates Ordinance, Cap 227 of the Laws of Hong Kong, to affirm the conviction of Charge 2: Ching Kwok-yin v HKSAR[71].

Conclusion – Appeal against Conviction

57.Apart from considering the various Grounds of Appeal above, I have also reviewed all the evidence of this case by way of rehearing, but am of the view that the appellant’s conviction was correct. I therefore dismiss the appellant’s appeal against conviction.

Appeal against Sentence

58.The appellant is 29 years old, unmarried, and was born in Hong Kong. At the time of the offence, she worked as a part-time warehouse attendant of HKTVMall. After the case had occurred, she was employed as a full-time secretary for a real estate agency. She had a clear record before this case. She is living with her mother and is the sole breadwinner of the family[72].

59.Mr Pun put forward two Grounds of Appeal against sentence:

(1) The magistrate erroneously reckoned that the appellant committed a breach of trust; and

(2) Taking all the circumstances as a whole, the sentence of the appellant to imprisonment of two months, which was suspended for 24 months, was manifestly excessive.

Considerations

Ground of Appeal (1)

60.Mr Pun contended that although the appellant was a part-time shop assistant of the subject shop, she appropriated the goods concerned because at that time she thought that they had no owner. This was different from the normal act of theft by way of “embezzlement” or commonly known as “misappropriation of property of the company”. If this was also categorised as an aggravating factor of a “breach of trust”, the definition of “breach of trust” might have been too broad. The appellant was only “taking the opportunity to commit the offence”, and not committing a “breach of trust”.

61.I am of the view that there was no actual meaning in the argument for the appellant by paying excessive attention to wordings as to whether the appellant’s act was a “breach of trust”. I do not agree that cases of “theft by finding” could be comparable with this case, as the magistrate pointed out[73]:

“… the seriousness of this case was that the defendant, in her capacity as a warehouse attendant of the company, entered the location where the incident occurred, namely the warehouse of the company, and inspected, unpacked and took away the goods concerned without authorisation.”

62.As to Mr Pun’s contention that the appellant “thought that the subject items had no owner” at that time, I am of the view that it could only be a defence, because if it was true or might be true, the appellant should have been acquitted. However, this defence had already been rejected by the magistrate, to which I concur. This point raised by Mr Pun ran counter to the conviction.

Ground of Appeal (2)

63.Mr Pun submitted that the subject goods were not of very high value and that the appellant did not commit the offence with premeditation. When she found that PW1 was the owner, she at once offered to arrange a re-purchase of the goods concerned for PW1. PW1 agreed to this and later received the goods concerned. She did not suffer any loss. Besides, the appellant had already been remanded in custody for 14 days, which was already a bitter lesson for her. The appellant had a clear record in the past and the contents of the background report were positive. Taking all the circumstances of the case as a whole, Mr Pun contended that the sentence of the appellant to imprisonment of two months, which was suspended for 24 months, was manifestly excessive, and hoped that the court could consider substituting the imprisonment with a fine.

64.However, it was not the case that the magistrate had not considered each of the mitigating factors raised by Mr Pun at that time. The magistrate did not sentence the appellant to immediate imprisonment and passed a suspended sentence, having taken into account the following factors[74]:

“49. The defendant pleaded not guilty and was tried. When testifying in court, she stated candidly that she knew full well that the goods concerned did not belong to her, but she insisted that the goods with intact packing and in a saleable state did not belong to anyone and she could take them away as she liked and it was not ‘greed’.

50. Such a situation worried the court very much. Although it was the defendant’s first offence, she obviously had weak law-abiding awareness and had no remorse or shame. As long as her awareness had not improved, she would still fall foul of the law and had a high chance of re-offending.

51. Upon reading the background report obtained for the defendant, I [see] from the contents of paragraph 4 that the defendant frankly admitted that she had learned a bitter lesson from this experience and had gained an insight into the incident. She understood that she could not take anything without asking in future and promised to lead a law-abiding life.

52. As seen from the background report, the defendant grew up in a broken family. She ceased education in the early years and joined the workforce. She worked diligently and shared chores at home; the court accepts that she is not evil by nature. The conviction record due to this case will undoubtedly affect her job-seeking in future and can be regarded as a severe punishment on her.

53. Due to what has been stated above, even though the facts of the offence committed by the defendant were serious, since the defendant appears to have deep self-reflection after being remanded in custody and she has already been remanded for 14 days due to this case, I give the defendant a chance by dealing with her by way of a suspended sentence. The defendant is sentenced to imprisonment of two months, which is suspended for 24 months.” (emphasis added)

65.I am of the view that the defendant, as a shop attendant, with the convenience of her capacity, stole property belonging to another person in her employer’s shop, and the property was obviously belonging to the employer or a customer. It was an “opportunist” act, and at the same time an act of “embezzlement”. Although the goods were not of very high value, the case had a considerable degree of seriousness. The magistrate was of the view that the appellant had weak law-abiding awareness, and it was necessary to pass a suspended sentence for deterrence and rectification. I am of the view that it was a correct decision.

66.If not for the reasons set out by the magistrate and the fact that PW1 eventually did not suffer any loss, the appellant should have been sentenced to immediate imprisonment. I am of the view that even though it was the defendant’s first conviction, the sentence now imposed on her was not wrong in principle; even though it was not light, it was not manifestly excessive either. I cannot see any sufficient reason to interfere with the sentence imposed on the appellant.

Conclusion

67.In the light of the above, I dismiss the appellant’s appeal against conviction and sentence.

Miss Tang Tsz Lam, Lilian, Public Prosecutor of the Department of Justice, for the HKSAR, the respondent

Mr Chase C M Pun, instructed by Messrs Ho, Tse, Wai & Partners for the appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.