HKSAR v. Sung Siu Kam

HCMA000097/2001

HCMA 97/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 97 OF 2001

(ON APPEAL FROM WSCC 12031/2000)

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Coram: Deputy High Court Judge Toh in Court

Date of Hearing: 26.7.2001

Date of Judgment: 26.7.2001

Date of Handing Down of Reasons for Judgment: 13.8.2001

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J U D G M E N T

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1.The Appellant in this case was charged with one count of theft contrary to Section 9 of the Theft Ordinance (Cap. 210). She was convicted after trial and she appeals against the conviction.

The Prosection Case

2.PW1 is the supervisor of the Park'N Shop Supermarket, he gave evidence that, at the material day and time, he noticed the Appellant pushing a Park'N Shop trolley. Inside the trolley were some bananas. He saw the Appellant pick up 3 pears and place them inside the trolley beside the bananas. About 2 minutes later, he saw the Appellant again and at that time he noticed that the 3 pears had been placed inside a half-transparent red plastic bag which was not a plastic bag belonging to Park'N Shop. He then saw the Appellant take 2 bottles of wine from a rack in the shop and placed them inside the trolley. About 2 minutes later, he saw the Appellant pushed the trolley towards the checkout counter and at the same time he noticed that the bottle of wine and the pears were inside the red plastic bag. When the Appellant reached the checkout counter, he noticed that the Appellant only took out the bananas from the trolley and placed them before the cashier.

3.After paying for the bananas, the Appellant then put the bananas back into the trolley and pushed the trolley away from the counter. At that time, the red plastic bag containing the bottles of wine and the pears were still inside the trolley. At that time, PW1 then approached and intercepted the Appellant and asked her why she did not pay for the pears and the wine. The Appellant then told him that she had intended to use her credit card to pay for those goods. When PW1 inspected the red plastic bag, he noticed that the red plastic bag was tied with 2 firm knots and when he untied the knots, he found the 3 pears and the 2 bottles of wine inside. Subsequently, he reported the matter to the police.

4.The second prosecution witness was the cashier and she gave evidence about the Appellant having only paid for the bananas.

5.The third prosecution witness was a police officer who arrived at the scene and made enquiries. He subsequently arrested the Appellant for theft and having cautioned the Appellant. The Appellant then told him that she had intended to pay for the goods with her credit card so that she could get bonus points and that she had brought the red plastic bag to Park'N Shop for environmental reason, and that she was about to pay for the pears and wine with the credit card when she was stopped by PW1.

6.PW3 subsequently searched the Appellant and found amongst some cash, one Hang Seng Bank credit card.

The Defence Case

7.The Appellant elected to give evidence, and, she agreed that on the day in question, she had gone into Park'N Shop in order to do some shopping. She had brought along with her a red transparent plastic bag. She said that after she had picked up some bananas and placed them into her trolley, she then took 3 pears and 2 bottles of wine and placed them inside the shopping trolley. But the bottles of wine were rolling about, as she did not want to damage the pears, therefore, she had then subsequently placed them into the red plastic bag that she had brought with her to Park'N Shop.

8.When she went to the cashier counter, she paid for the bananas with a $20 note. After that, she had intended to reach for the red plastic bag which was still inside the shopping trolley. But as her arm was not long enough, she inadvertently pushed the shopping trolley forward which bumped into other empty shopping trolleys. The Appellant therefore went forward to push the empty trolley away. At that point, she was told by PW2, the cashier, to get her change. The Appellant said she told PW2 that she was going to use her credit card to pay for the pears. At that time, she had already taken the pears out from the red plastic bag and was intending to pay for them when she heard PW1 tell PW2 not to let her pass. She said PW1 then accused her of using the red plastic bag to steal the pears. The Appellant said she explained to PW1 that she only had the red plastic bag for environmental reason, but PW1 did not accept her explanation and reported the matter to the police.

9.The learned Magistrate when delivering his verdict orally went through the evidence of both the prosecution and the defence and gave cogent reasons as to why he believed the prosecution witnesses and not the Appellant. The learned Magistrate fell into error when at the conclusion of his oral reasons for the verdict, he said this;

"The Court also adds that this court has dealt with many shop theft cases, but it has not seen any Defendant who is as shameless as this Defendant. Certainly, in other words, the Court has not found up until this stage that the Defendant has shown any remorse. The Defendant is convicted."

10.This last remark, as Mr Madigan Counsel for the Respondent conceded, was both unfortunate and unnecessary. The issue of remorse is irrelevant when considering the guilt or innocence of a particular Appellant. Here the learned Magistrate fell into grave error when he considered this issue of remorse and also the 'shameless' defence put up by the Appellant when he convicted the Appellant of this offence.

11.The learned Magistrate, obviously, subsequently realized his error and these remarks were not included in his written statement of findings. Unfortunately, the damage had been done, and as justice has to be seen to be done, the appeal against conviction is allowed and the conviction is quashed. It is clear from the statement of findings that there was cogent evidence upon which a trial magistrate could properly find that the Appellant was guilty of the charge.

12.I therefore invited submissions from counsel as to whether I should order a re-trial. Mr Macrae, counsel for the Appellant, submitted that since the charge was not such a serious one and the offence had taken place at the beginning of this year that the Appellant therefore deserved some finality to this matter particularly when this happened through no fault of her own. And, therefore, he submitted the balance sheet be tipped in her favour.

13.While it is true that shoplifting offences are not the most serious offences in the catalogue of criminal offences in Hong Kong, nevertheless, there are serious offences which cause shops and department stores a large amount of money every year in stolen items. These stores then in turn recoup their losses by marking the prices of goods up, so in the end, the customers who are ordinary citizens of the SAR, then have to pay higher prices for the goods. I therefore decide that in fairness to both the prosecution and defence, this is a suitable case to be remitted back to the Magistracy for a re-trial.

14.Mr Macrae also applies for costs for the trial and on the appeal. I allow costs to the Appellant on the appeal but not for the trial and the costs will be taxed if not agreed.

Representation:

Mr Madigan, SGC for DPP

Mr Andrew Macrae, SC instructed by Messrs C W Heung & Partnes, for the Appellant