HKSAR v. Li So Yu

HCMA000972/2003

HCMA972/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 972 OF 2003

(ON APPEAL FROM TWCC 1971 OF 2003)

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Coram: Hon Jackson J in Court

Date of Hearing: 4 February 2004

Date of Judgment: 4 February 2004

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J U D G M E N T

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Introduction

1.On 11 September 2003 at Tsuen Wan Magistracy the appellant was convicted of one charge of theft (by shoplifting). She was sentenced to a fine of $2,000. She appealed to this Court against her conviction which appeal I dismissed on 4 February. My reasons are as follows.

2.The charge arose out of events on 12 June 2003 when the appellant entered a Giordano store in Tung Chung, Lantau, carrying a bag. She was seen to inspect a black and white shirt and to walk around the shop with it. She subsequently attempted to leave the shop but was stopped by a staff member at which time the shirt was found in her bag. The police were called and the appellant was arrested for theft. A computer search revealed no sales of that particular type of shirt during the preceding two days.

3.At trial the prosecution evidence was given by a sales assistant; a manager giving computer entry evidence, the arresting officer, and a computer expert. The appellant gave evidence that she had purchased the garment at that store the previous day and that she had brought it back to exchange it but had then changed her mind. She called her boyfriend to give evidence and he said that he had seen the appellant with the shirt on 11 June.

The grounds of appeal

4.The appellant relies upon the following perfected grounds of appeal :

"Ground 1

The Learned Magistrate erred in law in drawing the following adverse inferences against the appellant :

(i)	that the T-shirt was the property belonging to the Giordano Ltd when the appellant was carrying it both inside or outside the Tung Chung Giordano shop at the material times;
(ii)	that there was sufficient evidence of appropriation by the appellant, of the property of Giordano at the material times.

Ground 2

The conviction is unsafe and unsatisfactory in that the Learned Magistrate erred in attaching due weight to the computer sale record (in the absence of any evidence any physical stock check to prove the accuracy of the data in that computer) as conclusive evidence of proving the loss of one T-shirt by the Giordano Ltd at the material time."

5.In his Reasons for Verdict, the magistrate says, inter alia, the following :

" The defendant's case was very basically that she had been to this Giordano shop the day before and purchased this garment. She had lost the receipt. She had then decided on the day in question to return to the shop to change the garment for a bigger size but changed her mind when she was in the shop and she decided to leave without changing the garment. She had been on medication when in the shop and not in a good mood. She had been stopped as she left the shop and she had called the police to the shop. She called her boyfriend who gave evidence of, inter alia, having seen the garment in the evening of 11th June. Both the defendant and her boyfriend were employed at the time as airport security guards.

[The] prosecution witnesses impressed me and I found they were honest and reliable witnesses and I accepted their evidence.

I found from PW1's evidence, inter alia, that the defendant had walked into the Tung Chung Giordano shop carrying only a bag. Inside the shop PW1 offered her assistance and when this offer had not been taken up PW1 went to help another customer. PW1 subsequently noticed the defendant carried a V neck short sleeve garment, which was white with black stripes, and she walked around some furniture in the shop holding it, but when she went past the cashier counter PW1 noticed the garment had disappeared and the defendant held only the bag. The defendant eventually went to the exit and there she had been stopped by PW1. PW1 at this time noticed the garment was inside the top of the paper bag. The defendant told PW1 that she had bought the garment the day before and when asked where she had bought the garment, the defendant said Tung Chung (meaning the same Giordano shop). The defendant also told her the purchase had been between 3 pm and 4 pm. PW1 then asked a colleague, Pui Yee, to check the computer (but the result of this check I found was hearsay). There was a Giordano logo on the garment and for this particular design of garment there had also been a label with serial number 023499 on it. The label had not been on the garment when the defendant was stopped. The label was made of paper and such labels regularly became detached from garments. The loss of the label did not affect the shop's operation, as the staff members were very familiar with the design number of this article of clothing. Giordano does not have any other shop in Tung Chung.

I found from PW2's evidence that he was the shop manager and he had done a check by computer using the internet. ... He found from the company computer that there had been no sales recorded in the Giordano Tung Chung shop for this design of garment on both the 12th June 2003 and for the previous day. He found the office computer was operating properly that day. ...

PW3 was the police officer that had arrested the defendant at the scene. I found from his evidence that the defendant had said under caution that the garment in her paper bag was the one she had bought herself the day before that is 11th June - and she had lost the receipt. I also found from his evidence that the defendant had on her at the time $900, an Octopus card and a bank ETC card. He seized the garment and the bag. He agreed that PW1 had said to him that she had suspected the defendant, but since it had taken place so fast, she could not be sure at the time what had actually happened.

I found PW4 was a qualified computer technician who was adequately qualified for maintaining the Giordano computer system in which Giordano recorded, stored and reproduced, inter alia, its garment sales at its shops as part of its daily business. I found his evidence covered the necessary evidential requirements for the production of the computer-generated information in evidence. ...

I listened carefully to the evidence given by the defendant and I gave myself both limbs of the 'Berrada' directions when so doing, but even after so doing I found that I was not impressed with her evidence and I found I did not believe she was telling the truth. I therefore rejected much of her relevant evidence.

I disbelieved the defendant's evidence that she had gone into the shop to change the item, and I disbelieved her assertion she had purchased the item the day before in the same shop. The defendant was a security officer by profession and I believed she would have been even more aware than a layperson of the need for a receipt and for the need to take care when entering a shop and changing an item. I found that she would have noticed whether a receipt had been issued to her. I found her physical condition did not play any part in the incident on either of the days as I found she was fully aware of what she was doing when in the shop. I found the defendant would have said something to PW1, when PW1 had offered her assistance, of her intention to change the garment and not kept quiet about this intention. I found the defendant knew when in the shop there was a possibility of a member of staff mistakenly thinking that she had taken the garment and she knew at the tine she had no receipt on her.

I listened carefully to the evidence given by the defendant's boyfriend and when so doing I reminded myself of the defence suggestion that because he was airport security guard he would be unlikely to tell untruths. However, even after so doing, I still found that I did not believe the he had seen the garment on the 11th June 2003 in the defendant's bag. I noted he was able to confirm in cross-examination the evening's events when he had met PW1, but I found that this did not change my findings. I therefore rejected much of his relevant evidence."

6.At the hearing of this appeal Mr Leon Tang who appeared for the appellant repeated and expanded upon his grounds of appeal and, in so doing, sought to emphasise the fact that there had been no physical stock check and to minimize the evidential value of the computer sales record.

7.Whilst I accept that the computer sales record would only reveal information that a sales assistant had fed into it, there was more evidence (as will plainly be seen from the magistrate's findings) than that record alone.

8.And whilst I also accept Mr Tang's contention that there was no evidence that the appellant was actually seen to go near to the shelf where the shirts were displayed (let alone take the shirt from that shelf), and that there was no evidence that the 'tag' missing from the shirt was found anywhere in the shop those facts, of themselves, do not assist the appellant in her appeal.

9.As to the magistrate's expressed view that, as the appellant was a security officer, she would have exercised more care when obtaining a receipt and when seeking to exchange an item of clothing, Mr Tang boldly suggests that he (the magistrate) disbelieved the appellant merely because of her occupation. In my judgment that was plainly not the case. All that he was seeking to do was to analyse the evidence presented to him.

10. The magistrate had the inestimable advantage of seeing and hearing all of the witnesses (both prosecution and defence) giving their evidence. He formed a view of that evidence and drew inferences from it which I am unpersuaded can properly be criticised.

11. It was for all of these reasons that I dismissed this appeal.

Representation:

Mr P.K. Madigan, SGC of the Department of Justice, for the Respondent

Mr Leon Tang, instructed by Messrs Lawrence K.Y. Lo & Co., for the Appellant