HKSAR v. Chau Ming Shuen

HCMA001223/2002

HCMA1223/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1223 OF 2002

(ON APPEAL FROM NKCC 6929 OF 2002)

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Coram: Deputy High Court Judge Day in Court

Date of Hearing: 18 March 2003

Date of Judgment: 18 March 2003

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J U D G M E N T

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1.This is an appeal against conviction and sentence. The appellant was charged with theft. It was alleged that she had stolen a packet of sheets worth just $35 from a Pricerite store in Shamshuipo. She pleaded not guilty but was convicted after trial and was fined $3,000.

2.The evidence was straightforward. For the prosecution it was given by the store detective and an arresting police officer and the defendant herself chose to give evidence.

3.Madam Chau entered the Pricerite store carrying two bags of shopping which she had bought at other stores. She then selected four items, including the sheets, at Pricerite and was seen by the store detective to put the packet of sheets into one of the two bags she had brought with her into the store. She had paid for the three other Pricerite items but not for the sheets. She left the store.

4.She was intercepted outside the store and was told that she had taken something from the store without paying for it. She asked what she had not paid for and when reminded about the bed sheets, she said she had forgotten to pay for them. An account that she later repeated to a police officer.

5.She gave evidence telling the magistrate that when in Pricerite, she had two bags of shopping and her handbag with her. This had caused her to drop the sheets two or three times and so she put them into one of the shopping bags to enable her to carry them more easily. She had then simply forgotten to pay for the sheets, adding at one time that she had felt dizzy because she had not have her lunch and at another that she was dizzy because she had been in a traffic accident some three weeks earlier.

6.The magistrate noted that the store detective had kept the appellant under clear and unobstructed observation from when she had selected the sheets until she left the store. Significantly perhaps, his evidence was that she had never dropped the sheets.

7.The appellant was a lady of good character and the magistrate properly directed himself in relation thereto. The magistrate was clearly impressed with PW1, describing him as honest and believable but rejected the evidence of the appellant explaining why.

8.This was above all a matter of credibility of the witnesses who testified during the trial.

9.The appellant was tried by an experienced magistrate. He had the opportunity of seeing and hearing those witnesses, an opportunity denied me today. He was the person best placed to assess their testimony and evaluated the evidence as he was required to do. He explained why he accepted the evidence of the prosecution witnesses and rejected that of the appellant. He properly considered all the available evidence. Mr Wong today for the appellant suggests that on the evidence I should find a lurking doubt, and allow the appeal. I have no doubt the magistrate got it right. The appeal against conviction is dismissed.

10.Madam Chau you also appeal against sentence. You are a 46-year-old-married lady with two daughters. Your husband is a watchman. You have not been in trouble before committing this offence and the value of the sheets was just $35. A fine was clearly appropriate, but $3,000 does strike me as somewhat heavy in the circumstances. I shall allow the appeal against sentence and substitute a fine of $500.

Representation:

Ms Catherine Ko, SGC of the Department of Justice, for HKSAR

Mr Richard T.W. Wong, instructed by DLA, for the Appellant