Au Lai-yung v. The Queen

CACC000215/1976

IN THE HIGH COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 215 OF 1976

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Coram: Cons, J.

Date of Judgment: 24 March 1976

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JUDGMENT

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1. The appellant is a lady with a long history of thefts and other offences. Last October she was off again. She chose the cut-price garments store at the entrance to the Daimaru Department Store in Causeway Bay. When the opportunity arose she unzipped the handbag of one of the customers and took from the bag what appears now to have been two receipts for school fees paid through the medium of a local bank. The appellant had a quick look at the two receipts and immediately replaced them in the bag. Then she walked out of the store, to be arrested by detectives who had been watching her.

2. These are the facts as found by the learned magistrate. But his conduct of the trial has been criticised. In particular it is said he should not have declared hostile the lady victim who was called by the prosecution; by doing so, and as a result rejecting in effect all her evidence, he deprived the appellant of the benefits of those parts of her evidence that were in favour of the appellant's version of the incident. It is said that there was insufficient material on which the magistrate could have found the witness hostile; that she betrayed no animosity to the Crown and at the most gave evidence that was to some extent at variance with an earlier statement made to the police. It is conceded that it is sufficient if a witness gives evidence "in flat contradiction" of an earlier statement: Reg. v. Warren⁽¹⁾. But it is suggested that in the present instance matters did not go that far. However it seems to me on looking at the record that they did. The magistrate had every justification for his decision.

3. That leaves one simple point in this appeal. It is also a question of fact, although of one to be inferred rather than the subject of direct evidence. It is what was the appellant's intention at the time she first took the two receipts from the handbag. If her taking at that moment was "conditional", that is if she intended to see what they were and if they were of value then to keep them, she is not guilty of theft. If on the other hand she intended from the very beginning to keep them, whatever they turned out to be, she is guilty of theft. The subsequent return, after she found they were worthless, would not purge her guilt.

4. The distinction may not be easy to resolve in any particular case. But it is a vital distinction. It was so in the case of Reg. v. Easom⁽²⁾. There the defendant took a lady's handbag whilst sitting close to her in a cinema. He rifled through the contents, found nothing of value, returned the bag to near the lady and left. His conviction by the jury was upset on appeal because the jury were in effect directed that they must convict if satisfied that the defendant was the person concerned. It is suggested that the learned magistrate in this instance directed himself in similar terms. With respect I do not agree. It is clear from the way in which he has set out his statement of findings that he had the point very much in mind. He came to the definite conclusion that at the time the appellant took the receipts she had the intention of depriving the victim of them permanently. What has given me cause for anxiety is whether in the circumstances there was before him sufficient evidence from which he could draw such an inference. As I read the evidence on the record the appellant's conduct clearly falls within the conditional category. At the least it is consistent with both inferences. Unfortunately the learned magistrate has not set out the particular matters that influenced his choice. In the circumstances I am compelled to quash the conviction. There is therefore no need for me to consider the appeal against sentence. Both conviction and sentence are set aside.

Representation:

Mr. Gunston of (Gunston & Chow) for appellant.

C.W. Reid, Crown Counsel, for the Crown.

(1) [1956] 40 Cr. App. R. 160

(2) [1971] 2 Q.B. 315