R. v. So Lai Wah & Other

HCMA000949/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.949 OF 1995

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Coram: Hon. Duffy, J. in Court

Date of hearing: 5 December 1995

Date of delivery of judgment: 11 December 1995

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J U D G M E N T

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1. These were appeals by both appellants against their conviction for handling stolen goods.

2. The facts were that the two appellants on 3rd April 1995 at about 8:40 pm went to the UNY Department Store in Taikooshing. They were observed by a security guard to each take some goods from the shelves to the cash out counter. There the 1st appellant was seen talking to the cashier, a conversation which the security guard could not hear. The security guard testified that he saw the cashier putting the goods into a plastic bag, and then taking one of the items out of the bag again, and speaking to the 1st appellant. The security guard could not hear what was being said. The 1st appellant, he stated, took one $10 note from her wallet, gave it to the cashier, who operated the till, and received change in the shape of a coin. The two appellants went to leave the shop and were stopped by the security guard.

3. The security guard asked the 1st appellant to show him the receipt she had been given, and the receipt showed that only $8 had been spent. When asked if she had other receipts, the 1st appellant said she had not taken any other receipts. They were then both asked to go to the security office while the till was checked. At that time the 1st appellant was holding the plastic bag with the goods inside, and it was an agreed fact that the plastic bag contained the eight items mentioned in the charge, having a total value of $445.40, and that only the eraser had been rung up on the till. The cashier was the sister of the 1st appellant.

4. After the cash register was checked, the police were summoned. PC10405 Tsang Wai Heung asked the 1st appellant for an explanation, and she told him that she had intended to use her credit card to pay for the goods but that her elder sister, the cashier, told her there was no need. He arrested her for theft and cautioned her and she said: "Ah Sir, I also know it is wrong to take away other's thing without paying for them. I hope Ah Sir will give me a chance and not to arrest me."

5. PC49323 spoke to the 2nd appellant and asked her for an explanation. She told him that it was the original intention that the 1st appellant would use her credit card to pay for the goods, but the cashier, the 1st appellant's elder sister, told them there was no need to pay. He then arrested her for theft and cautioned her and she said: "I understand, Ah Sir. I know it is wrong to steal. I beg you to give me a chance, can you? It is a momentary greediness. Can you give me a chance, Ah Sir?"

6. Both the 1st and 2nd appellants, who gave evidence, denied that any money had been handed over to the cashier. Both maintained in their evidence that the 1st appellant took out her credit card to pay for the goods but her sister, the cashier, said there was no need and that she would pay for them herself later. The cashier, the 1st appellant's sister also testified to that effect. Both appellants explained their replies to the police under caution by saying that they only found out the sister did not pay for the goods after they had been apprehended by the security guard, and that is why they both acknowledged to the police officer that they knew it was wrong to steal. They were not, in other words, they said, admitting that they had themselves stolen.

7. Originally, the 1st and 2nd appellants and the 1st appellant's elder sister were jointly charged with theft of these items from the supermarket. The elder sister pleaded guilty to that charge of theft when pleas were taken, and both the 1st and 2nd appellants pleaded not guilty. At the conclusion of the prosecution case, the learned magistrate, on his own motion, amended the charge to one of handling stolen goods. That meant, of course, he had taken the view that the offences were committed only after the goods had been taken to the cash-out counter. Indeed the learned magistrate in his Statement of Findings said :

"The goods had become stolen goods from the moment they had been placed in the bag by the sister."

8. Mr Martin Lee, QC, who appeared for both appellants in the appeal, though not in the court below, submitted that the convictions could only be sustained on the basis that the appellants became aware of the cashier's intention to let them take the goods away without paying for them, when she spoke to them at the cash-out counter; and then made them aware that she would not pay for them either. Mr Lee submitted that the learned magistrate had no evidence from the prosecution about what had been said between the appellants and the cashier at the cash desk. The only evidence on that matter was from the appellants themselves, who maintained that, though the 1st appellant presented her credit card to pay for the goods, the cashier told them that she would settle the matter herself later.

9. Mr Lee submitted that, therefore, there was no basis in the evidence for the learned magistrate's findings that the cashier told her sister, the 1st appellant, that she should pay for the cheapest item, the eraser and that both appellants, on hearing that, knew that the cashier was going to steal the goods, and that the cashier never said that she would pay for them herself. However, these findings by the learned magistrate came at the end of his Statement of Findings and were clearly based on his review of all of the evidence, which would include the eye witness account by the security guard and the admissions made by the appellants.

10. It seems to me that one real difficulty confronting Mr Lee was these admissions. While both appellants did in their evidence attempt to explain why they both acknowledged to the police officers, who had arrested them for theft, that they knew it was wrong to steal, the reasons they gave for saying that, that they only then realised that the sister had not paid for the goods, was unconvincing, and was clearly rejected by the magistrate, who relied on what they said as admissions. The 2nd appellant actually pleaded that what she did was as a result of a momentary greediness. Both asked for a chance.

11. Mr Lee attacked the learned magistrate's conclusion that the security guard gave a "truthful and accurate" account of what happened, which, he submitted, was reached without proper consideration of discrepancies between the guard's evidence and his statement to the police. In particular he pointed out that on the important matter of the receipt, and whether or not the 1st appellant handed over $10 to the cashier and got a coin as change, the security guard had to concede that he had not mentioned these matters in his statement to the police. However, there was the evidence of the receipt, and it was not surprising that the learned magistrate found the cashier's evidence that she had the receipt from an earlier transaction "most unconvincing". I agreed also with the learned magistrate's conclusion that the receipt's failure to include a reference to change did not necessarily contradict the security guard's evidence that he saw change being given.

12. I have not dealt with all the matters raised by Mr Lee, but suffice it now to say that I found no merit in the points that I have not dealt with. I felt that the learned magistrate's amendment of the charge, though unnecessary, was not wrong, and that his findings of fact were consistent with a conviction for handling stolen goods. It is always sad when young people of otherwise good character and with good careers risk their futures and their careers because of some act of silliness such as the facts of this case describe. I have given the matters raised careful consideration, but despite Mr Lee's well presented and eloquent submissions, I have found against him. Clearly, in my view, the learned magistrate, on a review of the whole of the evidence, was entitled to come to the conclusion that the two appellants knew when they took the goods away from the cash desk that these goods were not going to be paid for and had therefore been stolen. I must dismiss the appeal.

Representation:

Mr F. Veltro, S.C.C., for Crown

Mr Martin Lee Q.C. leading Mr Raymond Tsui (Peter W.K. Lo & Co.) for both Appellants