HKSAR v. Chan Hoi Ying

HCMA000912/1999

HCMA 912/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 912 OF 1999

(On Appeal from Tuen Mun Magistracy Case No. TMCC 1359 of 1999)

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Coram: Deputy High Court Judge Chu in Court

Date of Hearing: 1 September 2000

Date of Judgment: 1 September 2000

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J U D G M E N T

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1. The Appellant was convicted after trial of 1 charge of theft and was sentenced to a fine of $2,500.00 and costs of $2,500.00. Upon review, the fine and the costs were reduced to $1,500.00 and $1,000.00 respectively. The Appellant now appeals against both conviction and sentence.

2. The particulars of the charge alleged that the Appellant on 21 April 1999 at a Wellcome Supermarket in Yuen Long stole a total of 10 items, namely, 1 book, 2 boxes of corn flakes, 1 bottle of peanut oil, 1 packet of crisp, 1 custard bun, 1 set of playing cards, 2 markers and 1 bottle of glue, being the property of Wellcome Company Limited.

3. The prosecution evidence is that the Appellant was seen by a cashier of Wellcome Supermarket to have entered the supermarket carrying, among other things, a pink plastic bag which appeared to be thin and empty or containing very light items. She was observed to be walking around in the supermarket and picking up some bread, corn flakes and eggs, which she placed in a shopping basket provided by the supermarket. Moments later, she presented 3 eggs for payment at the cashier's counter. She was stopped as she was leaving the supermarket. From the pink plastic bag she was carrying, the 10 items that are the subject matter of the charge were found. The supermarket manager scanned the 10 items with the scanner at the cashier counter and a receipt was printed, showing the total value of them to be $78.50. The Appellant asserted on the spot that she had earlier on bought the 10 items from other places. Later on, she offered to pay for them, but was refused. When she was eventually arrested and taken to police station, she repeated her assertion that the items were purchased from other places. She was then taken to a store from which she said she had bought 4 of the items. The store owner however stated that he had not sold the 4 items to the same person. The owner however accepted in cross-examination that he was not the only person attending to the business of the store.

4. The Appellant elected to give evidence. In essence, she stated that she did purchase the 10 items from other shops before she went to Wellcome Supermarket. She produced several receipts which, she accepted, were only obtained on the day after her arrest, but were back-dated to 21 April 1999. She claimed that the police officer was unwilling to go with her to the area(s) where she said she purchased the items, and he only took her to the store mentioned above. She said, and this accords with the evidence of the supermarket manager, that the 10 items were readily available for sale in other shops.

5. The trial Magistrate found the prosecution witnesses truthful and reliable. He disbelieved the Appellant and rejected her evidence. He convicted the Appellant as charged.

Appeal against Conviction

6. The first ground of appeal is that the Magistrate failed to make a specific finding that the 10 items were properties belonging to Wellcome Company Limited. The second ground of appeal says that the Magistrate did not appear to have conducted a proper process of drawing an inference that the 10 items are properties of Wellcome Company Limited. These 2 grounds can be conveniently dealt with together.

7. Mr Kwok for the Appellant submitted, and I agree, that there is no direct evidence to the effect that the Appellant took the 10 items from the goods racks inside Wellcome Supermarket, and there is also no direct evidence that they were the goods of Wellcome Company Limited. It is a case of drawing whatever inferences from the primary facts. It is therefore prudent and necessary for the trial Magistrate to indicate and set out the primary facts as proved and then to state the inferences to be drawn from these proven facts. Unfortunately, this had not been done in either the oral reasons delivered or the statement of finding. The omission is not necessarily fatal where the facts are straightforward and the inferences to be drawn are apparent. In this case, however, the Appellant's case is that she purchased the 10 items from elsewhere. The burden is therefore on the prosecution to prove beyond reasonable doubt the issues of appropriation and property belonging to another. This will require the trial Magistrate to evaluate the evidence and make specific findings on these issues.

8. The trial Magistrate had stated in his statement of finding that relying on the evidence of the prosecution witnesses, he found the prosecution had proved each ingredient of the offence of theft beyond reasonable doubt. That is insufficient because the credibility of the prosecution witnesses, including the supermarket cashier and manager, is not conclusive of the matter. This is specially so in the light of the manager's evidence under cross-examination that goods sold in other shops could still be registered on Wellcome Supermarket cash registers when being scanned by the scanners at the supermarket cashier counters. He did not elaborate further on this and had not explained how then, if at all, could one tell goods sold by the supermarket from goods sold elsewhere. This is a crucial aspect of the case which should have, but unfortunately had not, been explored at the trial. At the same time, the supermarket cashier, when being pressed by the Appellant under cross-examination, accepted that she could not be sure whether the pink plastic bag carried by the Appellant was empty or not when she entered the supermarket, although she insisted that the bag had become more bulky when the Appellant left the supermarket. In the light of these evidence, there must be a reasonable doubt or, to say the least, a lurking doubt as to whether all or any of the 10 items of goods were taken from Wellcome Supermarket and whether they were properties of Wellcome Company Limited. The Magistrate's omission to make a specific on the issues of appropriation and property belonging to another and his omission to set out the process whereby he came to such findings therefore render the conviction unsafe and unsatisfactory.

9. The third ground of appeal turns on the 4 receipts of purchase produced by the Appellant at the trial. The Magistrate initially refused to accept them as being irrelevant and of no value. Upon the insistence of the Appellants, they were admitted into evidence, despite the objection from the prosecution. The makers of these documents were however never called. Mr Kwok submitted that the Magistrate erred in making no reference to and considering these receipts in coming to his verdict. He argued that these receipts are business records and they prima facie speak for the contents therein. I do not agree. The Appellant had come nowhere near to proving that these documents are business records, let alone the truth of the contents therein. The Appellant admitted that she obtained 3 of these documents on the day after her arrest and that they were back-dated to the date of her arrest. Whether these documents are capable of evidencing purchases of the items mentioned therein and on the dates stated therein depends on whether the Appellant's evidence is to be accepted. Once the trial Magistrate found the Appellant's evidence incredible and rejected it, these receipts would have no value and the failure to refer to them in the oral reasons for verdict or the statement of finding is no ground for complaint. In addition, one of the receipts (D24) admittedly is not a receipt for the purchase of any of the items named in the charge.

10. The final ground of appeal states that the trial Magistrate had failed to consider the relevance of the Observatory's weather report for 21 April 1999, when concluding that the police officer who accompanied the Appellant to the store where she said she had purchased 4 of the 10 items was a credible witness. At the trial, the Appellant sought to adduce the weather report to contradict the police officer's evidence as to the time they left the police station. That was part of her attempt to show that the officer was in a hurry to go off duties, hence half-hearted in the attempt to locate the places she claimed to have made the purchases earlier on. After the Appellant's repeated questionings of the officer and indications that she had a weather report to support her case as to the time they left the police station, the Magistrate explained to her that she could state her case when it was her turn to give evidence and there was no point in repeating the questions. It is obvious from the transcript on this part that the Magistrate was fully aware of the purpose of the weather report and its alleged effect on the credibility of the police officer. No doubt he would have borne that in mind when he concluded that the officer was a truthful witness, although he had not set this out specifically when giving his reasons for verdict and in his statement of finding.

11. On the basis of the first and second grounds of appeal, the appeal against conviction is allowed. The conviction is quashed and the sentence and costs order are set aside. The fine and costs already paid by the Appellant will be refunded to her.

Appeal against Sentence

12. Having quashed the conviction, it would not have been necessary to deal with this part of the appeal. But for completeness sake, I would point out that I do not consider the level of fine to be in any way excessive. While accepting that the court has to have regard to an accused's financial means in imposing a fine, it has not been demonstrated that the $1,500.00 fine is beyond the means of the Appellant. The transcript shows that at the review hearing, the Appellant told the Magistrate that she was receiving monthly public assistance of $3,000.00 odd a month and had to pay monthly rent of $2,000.00. She also stated that she had borrowed $3,000.00 "concerning the case", which on the face of it suggests that she had incurred a $3,000.00 loan for meeting the sentence of $2,500.00 and $2,500.00 costs initially imposed. Considering these matters, the Magistrate's decision to reduce the fine and costs to $1,500.00 and $1,000.00 cannot be faulted. This is so despite that the total value of the goods alleged to have been stolen worth only $78.50. In order that a fine in a shoplifting case has any punitive and/or deterrent effect, the level of fine has to be in some way disproportionate to the actual value of the properties stolen.

13. As to the costs order, it is accepted that an accused is not to be penalised in costs for exercising his constitutional right of requiring the prosecution to prove his guilt: HKSAR v Chan Kwok Wah [1999] 1HKC 697. The costs order in this case is however not unjustified. The trial had taken 6 days to conclude, although it is a simple case with 6 witnesses in total. It is evident from the transcript that the Appellant conducted her case on the basis that each and every of the prosecution witnesses was untruthful and was setting her up. Although Mr Kwok rightly observed that her case does not have to turn on credibility because the prosecution witnesses, especially the cashier, could well have been mistaken in her observations, the Appellant had chosen to run her case on the basis of a set-up. Her cross-examinations, testimony and submissions were unduly repetitive and lengthy and many a times irrelevant. She repeated and insisted on her way, despite rulings against her had been made by the Magistrate. It is true that she was acting in person, but it does not take a lawyer to appreciate the difference between a lie and a mistake. As a litigant in person, she had been given a great deal of indulgence by the trial Magistrate. It must be stressed that litigants in person are not entitled to unlimited use of the limited resources of judicial as well as prosecution time and resources. Where they have conducted their case frivolously and irresponsibly, they are not to be exempted from a costs order simply because they are acting in person and do not have the benefit of legal advice.

14. Had it therefore been necessary to deal with the appeal against the sentence and the costs order, I would have dismissed it. But as the conviction is quashed, it becomes unnecessary for me to decide on the appeal.

Representation:

Miss Vivien Chan, Government Counsel for Director of Public Prosecutions, for the Respondent

Mr Eric Kwok, instructed by Director of Legal Aid, for the Appellant