The Queen v. Tsui Lau Wai Ling

HCMA001084/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1084 OF 1989

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BETWEEN

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Coram: Cons, V. P., sitting as an additional High Court Judge

Date of hearing: 20 September 1989

Date of delivery of judgment: 20 September 1989

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J U D G M E N T

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Cons, V. P.,

1. TSUI LAU Wai Ling ("the Appellant") was convicted of theft by Miss Betty Kwan sitting as a magistrate in the Western District.

2. The evidence accepted by her from a store detective showed that the Appellant and her daughter aged 15 entered the Manning Dispensary in Queen's Road, Central, about 12 noon on the 28th of March this year. On that day the store was running special offer by which a customer could obtain a soft toy at a cheaper price, provided that the customer had already purchased goods to the value of`$40.

3. Once inside the store the Appellant picked out from the display counters a lipstick worth $45. She handed this to her daughter who straight away put it into the pocket of the jeans that she was wearing. It is suggested by Miss Toh, who appears for the Appellant today, that that was not an appropriation within the Theft Ordinance, a suggestion which, with respect, begs the question of the Appellant's honesty, a crucial matter in the circumstances.

4. As soon as the lipstick had been put into the daughter's pocket the Appellant and her daughter both walked towards the cashier's desks. When they got near to them the daughter walked on one side, waited a while and then left by the side entrance to the Dispensary. Meanwhile the Appellant went on, past the cashier's desks, paused to look at another counter, and then too left the store, but by the main door and turned in a direction which would bring her immediately in contact with her daughter. Both of them were then apprehended, the lipstick being found still in the daughter's pocket. There followed certain conversations between the Appellant and the store detective.

5. The Appellant's evidence was that the whole object of the exercise that day was to obtain a soft toy, taking advantage of the special offer, and that the lipstick had been deliberately chosen as being over $45. In her view her daughter had left the store, although she had instructed her to wait at the cashier's counter because she may have seen the arrival of a car which was expected to pick them up. The Magistrate was not impressed by the Appellant's evidence. She spoke of her demeanour as being "continuously evasive" and her evidence self-contradictory, albeit it was in what seems to me to be only a minor matter. The Magistrate also noted that the side door through which the daughter had left the shop led only to a corridor and not to any road.

6. The daughter was not called to give evidence and the Magistrate was given no explanation, not even second hand, as to why she had not purchased the soft toy which had been the original purpose of the expedition. A character witness was called, who spoke to the more than exemplary conduct of the Appellant in the past and of her excellent character.

7. The Magistrate having considered, as she said, all the evidence, found "in all the circumstances of the case, the only reasonable inference to draw was that the Defendant handed the lipstick to her daughter intending that the lipstick was not to be paid for".

8. The present appeal is brought on the suggestion that there are several matters which should raise in the court a lurking doubt that injustice may have been done in the particular instance.

9. With all respect there is only one matter that merits further discussion, that is the suggestion that joint enterprise was not the only reasonable inference to be drawn from the circumstances, but that the daughter might have stolen on her own initiative or perhaps merely forgot to pay for the lipstick. These were not suggestions put forward by counsel defending at the trial, and perhaps for that reason the magistrate has not expressly mentioned them. It is however implicit from her findings that she did not think so.

10. It is, of course, well accepted that where there is more than one inference, to be reasonably drawn from a given situation and not all are only consistent with guilt, then a defendant is entitled to be acquitted. But that is not the situation here. The inferences suggested in relation to the daughter are not reasonable when considered in the light of all the circumstances and the evidence accepted by the Magistrate. At best they are remote possibilities.

11. It has to be said that this is an extremely sad case and it is to be hoped that the matters which have been urged upon me today with regard to be character of the Appellant will be taken into account by the proper authorities if they should be called upon to consider any further action. But despite the efforts and eloquence of Miss Toh I am not left with any lurking doubt and the appeal must be dismissed.

Representation:

Miss Esther TOH (M/s T. C. Foo & Co.) for the Appellant

Samuel Leung Crown Prosecutor for the Respondent