The Queen v. Leung Kit Yuk

HCMA000314/1985

BETWEEN: -

______________

Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 29 April 1985

Date of delivery of judgment: 29 April 1985

__________

JUDGMENT

__________

Preliminary

1. The appellant in his case was charged with two offences of theft of material samples. The first charge related to a period between the 10th May 1984 and the 3rd July 1984 when she was alleged to have stolen 520 samples from the Wing Hing (Tangs) Fabrics Manufacturing Co. Ltd. and the second charge relating to a period between the 15th September 1983 and the 1st May 1984 from the Amana Garment Factory Ltd. the number of samples in that charge being 89. Having heard the evidence, according to the record, the magistrate entered a conditional discharge upon the appellant entering into a recognizance in the sum of $500.00 to appear for conviction and sentence when called upon at any time within 12 months. In his statement of findings, however, and in the certificate which he signed it would appear that in fact a conviction was entered. Section 36(1) of the Magistracy Ordinance Cap. 227 provides that in such cases conviction may or may not be recorded. It does not seem clear from the record which course was followed, but in view of fact that I have allowed this appeal it does not seem to be of any consequence.

The evidence

2. In relation to the first charge Mr. Tang Siu-sang said that he was managing director of the Wing Hing (Tangs) Fabrics Manufacturing Co. Ltd. and that between the 10th May 1984 and the 3rd July 1984 the appellant was employed to replace the company's shipping clerk who was on maternity leave. On the 3rd July the appellant did not come to work and certain documents were found to be missing. A report was made to the police. Consequently, on the 1st November he was asked by the police to go to an office in Star House to make identification of certain exhibits. He said that he went there the following day, but in fact it would seem from the evidence that it was the 3rd November when he went and there he did identify some exhibits as his fabric samples. These were produced as P1 and P2. Confirming evidence was given by the shipping clerk and the secretary of the company. They both identified the exhibits as being the property of the company.

3. Mr. Hong Kam-wing, proprietor of the Amana Garment Factory Ltd. said that the appellant was employed by him from September 1983 to May 1984. At the request of the police he also went to the office in the Star House where he identified certain fabric samples. as being the property of his company. These were produced as exhibits P3, P4 and P5.

4. The appellant denied that she had taken any of these samples from either company and Mr. Hong agreed that he did send samples to a company called Interlache Ltd. and that records were not always kept of samples being sent.

5. Evidence was also given by Inspector Ngan Cho-kwok who said that pursuant to a search warrant he went to the appellant's office in Star House on the 1st November where he found some documents. These were recognised by Mr. Tang and pursuant to that a further search warrant was obtained and some fabric samples were then found on the 3rd November. These samples were identified by Mr. Tang as being the property of his company. He said that on the 8th December in the same office Mr. Hong of the Amana Garment Factory Ltd. identified a further lot of samples P3, P4 and P5 as being the property of his company. The constable also said that on the 1st November the appellant told him that whilst she was working in Mr. Tang's office she obtained "these things" for her own use.

The findings

6. The magistrate found that the articles which were discovered in the appellant's office belonged to the two companies with whom she had been employed. He found that at the time she had made no comment, but he also said:-

"P.W.6 D.P.C. 13730 substantiated the evidence given by P.W.5".

D.P.C. 13730 had in fact said:-

"I briefly remember her saying while she was working at P.W.1's office she obtained these things for her own use.".

It is quite clear in fact from the evidence that first of all this did not relate to events on the 3rd November when the fabric samples were found, but to the 1st November when the documents were found which, however, were not the subject of any charge. I have also been informed, very properly, by Crown counsel that the constable is not correct in the evidence he gave relating to the contents of the appellant's statement.  She did not say that she had obtained the garment samples for her own use and in fact denied taking them at all.

Decision

7. I am satisfied that the only evidence against the appellant was simply:-

I satisfied that is not sufficient evidence upon which a conviction can be entered. There is no question of the doctrine of recent possession applying here and there is certainly a possibility that the appellant obtained the samples in a perfectly legal manner. There is undoubtedly strong suspicion against her, but I do not think that the evce is sufficient whereby a court could be satisfied beyond reasonable doubt of her guilt.

8. The appeal must therefore be allowed and the conviction is quashed. I specifically direct that there be no entry made in the police record relating to any conviction against the appellant.

Representation:

D.B.Gunston of Hampton Winter & Glynn for the Appellant.

M. Jennings, C.C. for the Crown/Respondent.