HKSAR v. Wong Wing Mei

HCMA001275/2000

HCMA1275/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1275 OF 2000

(ON APPEAL FROM WSCC 12309 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 28 March 2001

Date of Judgment: 4 April 2001

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J U D G M E N T

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1. The appellant was convicted on 14 November 2000 of theft and sentenced on the same day to a fine of $1,000. She now appeals the conviction.

2. The facts alleged by the prosecution were that the appellant entered the Giordano shop in Queensway and changed the jacket at the customer service desk at the back of the shop. The shop is in the shape of an "L" with the customer service desk at the bottom of the "L" and the exit to the corridor of Queensway at the top of the "L".

3. PW1 said that she saw the appellant leaving the bottom of the "L" and when she was about 25 feet from PW1, she picked up a pair of socks from the display and put them into the bag that she was carrying. She then turned to the corner of the "L" away from the witness.

4. PW2 on being told by PW1 of what she had seen, hurried after the appellant and testified that she stopped her outside the shop and in the corridor of Queensway. Thereupon, she said that the appellant's first response was to offer to pay. She was taken back into the shop but she offered to pay again. The police were called and the appellant said to the police officer she did not steal a pair of socks and that she was intercepted by the staff whilst still inside the shop. The appellant said that she has exchanged a jacket and that she was passing through the shop when she picked up a pair of socks to purchase and that they fell to the floor. She put them into the mouth of the bag that she was carrying to stop them from falling on the floor. She then went to the front of the shop where she looked at some mannequins that were dressed in a jacket that she thought might suit her better than the one she had purchased. At this point, she said that she was stopped inside the shop that she had no intention to steal and that she had intended to pay for the socks before she left the shop.

5. The grounds of appeal revolved about where the appellant was stopped by the shop assistant. The magistrate found that PW1 and PW2 had both seen the appellant leave the shop. However, on an examination of the transcript through which Mr Tse, counsel for the appellant, has taken me, there are, on some portions, indications that PW1 would not have been in the position to see the appellant for some time after she left the area where the witness was and turned left into the other portion of the shop, going towards to the front door.

6. In other portions of her evidence, however, she testifies as to the portion of the front door through which the appellant exited and clearly indicates that she saw the appellant at the time she left the shop. Mr Tse argues that there is a further apparent contradiction as to where PW2 was when she first spoke to the appellant compared with the evidence of PW1 as to where she said she saw a conversation between the appellant and PW2 take place.

7. Mr Tse argues that either credit should not be given to the prosecution witnesses so as to rely upon their evidence to convict or the magistrate had misconceived their evidence and that his reasoning was a fault.

8. I have examined what was said by PW1 and by PW2 with great care. The evidence of PW1 is that after the appellant left her and proceeded round the corner inside the shop towards the entrance, she went to PW2 and told her what she had seen of the appellant picking up the socks and placing them in the bag she was carrying. She then followed PW2 who set off in pursuit of the appellant.

9. It is clear from the only reasonable inference that can be drawn that thereafter, PW1 proceeded towards the front door and was in time to see the appellant leave the front door of the shop. There is no contradiction between PW1 and PW2 in the evidence that they gave. PW2 says that the appellant left the shop and she stopped her in a position some feet outside the doorway in the corridor in Queensway.

10. The further contradiction as to where the appellant was when she was spoken to by PW2 amounts to this. PW2's evidence was that she stopped the appellant outside the shop and took her to the middle of the shop where conversation with her took place. PW1's testimony was that she saw PW2 and the appellant in conversation just inside the door at the point which could not be described as in the middle of the shop. This is a contradiction but not one which, in my view, is of such moment as to raise any doubts in respect of the safety of the conviction.

11. The arguments raised, have been purely on the facts to be derived from the evidence and the magistrate's consideration of those facts. There is nothing in the Statement of Findings that I can find which indicates that he has approached those facts improperly or has inferred matters which he ought not to have inferred.

12. I am satisfied that the conviction is neither unsafe nor unsatisfactory and the appeal against conviction is dismissed.

Representation:

Miss Denise Chan, SGC of Department of Justice, for HKSAR

Mr Joseph Tse, instructed by Messrs Weir & Associates, for the Appellant