HKSAR v. Liu Hing

HCMA000730/2001

HCMA 730/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 730 OF 2001

(ON APPEAL FROM FLC 552/2001)

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Coram: Deputy High Court Judge Gill in Court

Date of Hearing: 6 December 2001

Date of Judgment: 6 December 2001

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J U D G M E N T

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1.The appellant, a male aged 45 years, appeared before W Lam Esquire, magistrate, charged with theft of two Duracell 9V batteries individually packed, the property of Wellcome Supermarket. He was convicted after trial. He now appeals that conviction.

2.The prosecution's case can be summarized as follows: PW1 was a plain clothed security guard at the Wellcome store in question. He watched the appellant take two packets of Duracell batteries from a rack, look around, put them inside his jacket and walk out without paying. PW1 followed him out, revealed his identity and confronted him with the theft. The appellant denied it. PW1 then invited him to return to the shop. He was unwilling. PW1 called to an assistant manageress for assistance. She became PW2. En route to the shop's office PW1 heard something drop to the ground. It was a Duracell battery in its package. The appellant then said loudly "I did not take anything from your store." PW1 then spotted a second packaged Duracell battery on the floor nearby. The two packages matched those PW1 spotted the appellant removing. They were produced and marked as exhibit P4. PW2 said on the way to the office she saw the appellant holding a battery packet behind his bag. PW3 was a shop assistant who took possession of P4 which was then handed to the police. PW4 was a senior cashier. She said Duracell 9V sales are comparatively rare. The day before the incident she had stocked the shelf with ten packets one to a pack. Each had placed on them anti-theft tags. Returning to work the next day after the incident, she saw the rack had eight batteries out of the ten she had put there. A check of the computer records revealed no sale of the other two batteries in the intervening period. Shown P4, she saw no anti-theft tags but indications that paper had been torn from the packs. PW5 was the arresting officer. Exhibits P5 and P6 were respectively a post-record and record of interview. They were exculpatory. Finally there were admitted facts. They revealed that the appellant was a serving police officer with a clear record, and further that fingerprint tests proved to be inconclusive.

3.The defendant elected not to give evidence. He called one witness, another police officer, who had known the appellant for 20 years. He testified to his good character.

4.In reviewing the evidence, the magistrate found he believed PW1 who emerged after intense cross-examination unscathed. This, of course, was crucial to the prosecution's case, as it was he who said he saw the appellant remove two batteries and walk, almost immediately, from the store without paying for them. He also believed the other witnesses; PW4's account of no previous sales that day of 9V batteries was unchallenged.

5.Aside from PW1's evidence that he believed he found ten further factors damning to the defence case as follows:

(1) given that no Duracell battery was seen out of place at or near the tissues rack only 5-10 minutes before;

(2) given that PW2 saw the defendant holding one battery packet behind him on the way into the office;

(3) that there was a dropping noise and a battery packet falling from the area of the two men by the tissues rack;

(4) that PW1 immediately saw a Duracell pack which was the same Duracell as he had seen PW1 take earlier; (by which I think he meant as he had seen the defendant take earlier).

(5) that there was a second pack of Duracell on the tissues rack where the defendant was leaning over;

(6) that there were exactly two "misplaced" Duracell packs altogether where the defendant was shuffling with PW1, no more and no less;

(7) that immediately after the two packs had been discarded the defendant loudly asserted he had taken nothing from the supermarket;

(8) that there were missing exactly two packs of Duracell 9V batteries from the only such rack in the whole supermarket;

(9) that there was no sale which would explain the shortage of two packs from the ten-pack rack filled up by PW4 before; and

(10) that the defendant had made no purchase during that visit to Wellcome.

On the basis of those findings, he found all the essential ingredients proven and convicted the appellant.

6.In his grounds of appeal, the appellant raises seven. The first is that the magistrate placed too much emphasis on his reaction when apprehended; the second was that when PW2 gave evidence, she folded one of the packs comprising P4 to demonstrate how she said it had been held by the appellant. This amounted to tampering with the exhibit which effectively contaminated it, but the magistrate gave himself no proper direction concerning this; the third was that P4 should not be regarded as property appropriated from Wellcome because PW2's evidence on this issue was hearsay on the point ; the fourth was P4 contained no anti-theft sticker whilst PW4 said the missing batteries had them attached. There was no evidence that he had torn these off; the fifth was hard to fathom save that it seems he wanted to re-enforce the point already made in ground no. 4; the sixth was that the magistrate attached insufficient weight to the fact that there was no conclusive fingerprint evidence; the seventh was that in relying on the ten points that I have already reproduced the magistrate arbitrarily and erroneously found him guilty of the offence.

7.Before me, he added that as a police officer with 25 years in the Force and with a substantial pension awaiting his retirement would he have risked his pension for the sake of two batteries worth about $45?

8.My overall impression of the case is that the magistrate properly assessed all the evidence that was adduced before him, exercising a considerable degree of care as he did so.

9.Of vital importance was how he regarded PW1's evidence, because unless he was found to be truthful, there was nothing before him that would have amounted to evidence upon which he could rely to incriminate the appellant. However, with that evidence accepted the vital ingredients of the offence of shop theft were established. The remainder of the evidence taken in the round supported the finding that he come to.

10.I have considered the grounds of the appeal, first ground 1. I do not find the magistrate attached too much weight to the appellant's reaction when apprehended. It was simply one of many features to which he paid heed as he was entitled in weighing all the evidence in the balance. As to ground 2, the magistrate did caution himself about the fact that one of the witnesses did fold the packet that was part of P4 in the demonstration, and I am satisfied that he by that properly answered this ground.

11.I find nothing in grounds 3 to 5. As to the 6th, the magistrate attached no weight to the fact that there was no conclusive fingerprint evidence which was the correct approach. As to the 7th, he was entitled, indeed it was appropriate, for him to consider the ten features listed in the overall balance.

12.The magistrate was well aware of the appellant's good character and attached the appropriate weight to that status.

13.All in all I am satisfied that the magistrate considered the evidence before him with great care. Having done so he found all elements of the offence of theft proved. An appellate court will be slow to reject a trial court's finding of fact given that it has not had the benefit of hearing and watching the witnesses first-hand. There is nothing in this case that indicates that exceptional course should be pursued.

14.The magistrate dealt with all the issues thoroughly and without fault. Based on his findings of fact the appellant's guilt became foregone. The appeal against his conviction is dismissed.

Representation:

Mr P K Madigan, SGC for Director of Public Prosecutions, for the respondent

Appellant, Liu Hing, present