R. v. Yeung Wai Mei

HCMA001165/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1165 of 1996

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Coram: Hon Leong J. in Court

Date of hearing: 22 January 1997

Date of judgment: 22 January 1997

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J U D G M E N T

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1. The appellant was convicted of theft. She was fined and ordered to pay costs. The charge was that she stole one package of lipsticks and one Classe wallet from the Duty Free Shop.

2. The prosecution evidence against her was that of the lady store detective PW1. Her evidence was that when she was on duty in the store on 26th August 1996, she observed the appellant at the section selling leather goods amongst which were Classe wallets. She saw the appellant pick up a Classe wallet and put it under a shoulder bag the appellant was then carrying on her shoulder. The appellant then walked to the cosmetics counter and there she put the wallet into a side zip compartment of her shoulder bag. PW1 then saw the appellant pick up the package of lipsticks and put them into her jeans pocket.

3. Later, the appellant left the shop without paying for either of these items. PW1 then followed her outside the shop and stopped her. PW1 told her she had taken things from the shop without paying. When she attempted to run, PW1 grabbed her from behind. The appellant denied having taken anything. When PW1 opened the appellant's shoulder bag and showed the wallet inside it to the appellant. The appellant took it out and threw it onto the ground. The appellant was taken to the manager's office. There the appellant took out the lipsticks and threw them on the floor. She denied they were on her person.

4. PW1 said that the appellant when putting the wallet into her carrier bag had bent her body so as to hide her act. PW1 denied manhandling the appellant but she admitted that she had embraced the appellant to prevent her from getting away. She denied that she put the wallet on the appellant's hand to frame her. She admitted that there were racks of goods in the manager's office but no cosmetics were stored in that room. She admitted that inside the room, there was a struggle between her and the appellant, as a result, they had bumped onto the racks.

5. PW1 denied assaulting the appellant and framing her up but she admitted she was not happy with the appellant.

6. PW2, the police officer who responded to the call, investigated the allegation of theft. He told the magistrate that when he arrived, PW1 told him that after the appellant was taken back to the room, the wallet and the lipsticks were found on the person of the appellant. On the other hand the appellant denied stealing anything and said that PW1 had framed her. The officer did not see any loose items in the room let alone lipsticks. He had no knowledge if the items were found on the person of the appellant.

7. The appellant told the magistrate that she had a clear record and she would be doing her 3rd year degree course in a U.K. University in September 1996. She had saved up by working in a tutorial school for her further education.

8. What happened on that day, according to her evidence, was that she had gone into the shop just looking around and she had picked up a Classe wallet and held it in her hand while she walked around for a while in the shop. Then her pager vibrated and she put down the wallet near a cashier counter to respond to the call. She left the wallet at the cashier counter and when she went out of the shop, PW1 threw her arm around her neck and accused her of taking things without paying. PW1 tried to inspect her shoulder bag. She refused and asked PW1 to call the police. Eventually she opened the shoulder bag as well as the side packet for her to inspect. PW1 took out a wallet and thrusted it into her hand but she threw it down the escalator. She was forced into the room of the manager. Inside the room PW1 told her she was cheeky and that PW1 would definitely frame her up this time. The appellant said she would call the police. PW1 then assaulted her during which she bumped against some racks in the room and some lipsticks dropped to the floor. PW1 then told her she would also allege that the appellant stole the lipsticks. The appellant told PW1 that she did not steal the lipsticks. Police Officers arrived. The appellant denied the accusation of theft. The officers found nothing on her person. She also told the officers that PW1 had framed her up. She also told the officers that the lipsticks came from the room and not from her.

9. The magistrate in his findings recognised that this was a case of two conflicting versions and one witness against the other so that it was very much dependent on the credibility of the witnesses.

10. The magistrate was aware of the good character of the appellant and he had, as he was required, directed himself as to the necessary considerations on the appellant's credibility and propensity in committing an offence having regard to her good character. He had reminded himself of the determination of the appellant to achieve her goal and managed to save up sufficiently to enable herself to pursue further education overseas. Nevertheless he disbelieved her evidence and accepted the evidence of PW1. He convicted the appellant.

11. The appellant appealed against conviction. The magistrate in his findings said he did not accept the appellant as a truthful witness and he felt that the appellant had a very strong sense of hatred towards PW1. The complaint was that the magistrate failed to appreciate that the appellant's case was framed up and it would not be unreasonable for the appellant to display anything but hatred for the person responsible for the frame up. The appellant's display of hatred towards PW1 was consistent with her case of being framed up by PW1. The magistrate had commented on such display. But he did not say this had led him to disbelieve the appellant. PW1 admitted she was not happy with the appellant when she did not co-operate. However, the magistrate did not find that PW1 had, because of that, framed up the appellant. The magistrate did not construe the display of hatred against the appellant.

12. Complaint was made that the evidence did not indicate clearly where the properties were found. The evidence of PW1 was clear that the wallet was inside the side pocket of the appellant's shoulder bag when she stopped the appellant outside the shop. It was the appellant who took it out and threw it on the floor. The magistrate did not believe that the wallet was put into the hands of the appellant by PW1. The evidence of PW2 on where the property was found was based on what he was told. In fact PW2 was not sure as to what he was told by PW1 as to the finding of the properties. On the evidence of PW1 which the magistrate accepted, there was amply evidence to convict the appellant. The magistrate had evaluated the background and the clear record of the appellant and he was entitled, as he did, that despite that background, to find the appellant had stolen the properties in the charge. The conviction cannot be regarded as unsafe and unsatisfactory. The appeal against conviction is dismissed.

Representation:

Ms Polly Wan, C.C., for Crown/Respondent

Mr E.L. McGuinniety (M/s Hampton, Winter & Glynn), for Appellant