HKSAR v. Yip Wai Man

HCMA001180/2003

HCMA 1180/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1180 OF 2003

(ON APPEAL FROM TWCC 2195/2003)

____________

____________

Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 12 March 2004

Date of Judgment: 12 March 2004

_______________

J U D G M E N T

_______________

1.The Appellant was convicted in the Magistrate's Court for a single charge of theft after trial, she was charged that on or about 7th of February 2003 in Hong Kong, she did steal some Clarins cosmetic with a total value of HK$230.

2.The prosecution case was largely agreed and the only issue in the case was whether the Defendant had acted dishonestly at the time of the offence. The facts show that the Appellant had travelled on Cathay Pacific on a trip to Cebu, Philippines about two or three years ago and subsequently prior to the offence, she had received a letter from Cathay Pacific addressed to a person called "Yip Wai Man", which is the same English name as the Appellant, informing her that she is a Marco Polo member and this letter was sent to her office. It was sent to the 23/F of her building and the Defendant in her caution statement said that her office was on the 27/F but that the 27/F was used as a sort of mail room, so she had not checked the actual address on the envelope when she opened the letter.

3.Subsequently, the Appellant had telephoned Cathay Pacific and Cathy Pacific had confirmed that she was a Marco Polo member and, few days later, the Appellant redeemed the Clarins cosmetics using Yip Wai Man's Asia Miles points and subsequently the victim, that is the person Yip Wai Man, who actually possessed the Asia Miles point, contacted the Cathy Pacific about the loss of her points. At that time, Cathy Pacific telephoned the Defendant and it was at that time that Cathay Pacific was alerted to the possibility that there had been a mistake.

4.The Defendant in her 1st caution statement admitted that she had changed the address in Yip Wai Man's Asia Miles account back to the original address, that is the victim's address, because she did not want any trouble. But in her 2nd caution statement, she said that she could not remember precisely.

5.The learned Magistrate after reviewing the evidence for the prosecution and also the caution statements made by the Appellant which were mixed statements, eventually found that the only irresistible inference to draw from all the facts was that the Appellant was acting dishonestly on the day when she took the cosmetics and thus convicted the Appellant.

6.Counsel representing the Appellant, Mr Poon, has put forward many grounds in his written grounds of appeal. But today, he basically concentrated on two main grounds. The first ground is that the learned Magistrate, when he convicted the Appellant, was himself not sure whether the Appellant was dishonest on 7 February. Mr Poon in support of his argument refers to paragraph 12M in the learned Magistrate's Statement of Findings, where the learned Magistrate had said:

"I kept in mind when drawing irresistible inferences that this change of details had happened after the redeeming of the gifts and there could have been a change in the defendant's belief by that stage."

So, Mr Poon says it is showed that the learned Magistrate himself was not sure. Well, I beg to differ because what the Magistrate was clearly saying in that paragraph was, that he found that the Appellant was lying in her caution statement, but when he was considering what irresistible inference to draw, he did keep in mind the possibility, as the defence had suggested that the Defendant could have had an honest belief when she redeemed the gift, but that the belief changed when the change of details was made. So that was all the Magistrate was saying, he was not saying he was not sure that the Appellant's dishonest at the time of the theft. I also agree with Mr Madigan that the Magistrate made it very clear at paragraph H of his Statement of Findings when he said that:

"I rejected the assertion that the defendant believed that there had been a mix up in information."

7.As for the second ground of appeal, Mr Poon submitted that the learned Magistrate in his oral judgment had made a mistake when he referred to the facts as disclosed in the caution statement. In the learned Magistrate's Statement of Findings, he corrected that mistake and then the learned Magistrate said that despite that mistake, he found that it did not affect his ultimate conclusion. Mr Poon complains that this was a review and therefore the learned Magistrate should have called all counsel together for a review hearing and by not doing so, he had therefore acted unfairly.

8.Well, looking at what mistake the learned Magistrate was referring to, if one looks at his oral judgment which is at p. 177 of the appeal bundle at letter F, he said this:

"I disbelieved the defendant's second witness statement was the truth when she said she had looked that the computer after her trip as I found that, if that had been the case, she would have filled in her address details and she would have received some correspondence from Cathay Pacific or Asia Miles over the period until she moved to the Queensway offices."

9.The learned Magistrate at paragraph 14 of his Statement of Findings said:

"I have noted that I said in my judgment that I disbelieved the part of the defendant's second caution statement where she said she had looked at her computer after her (Cebu) trip and I had found therefrom that if that had been the case, she would have filled in her address details and she would have received some correspondence from Cathay Pacific or Asia Miles over the period till she moved to the Queensway offices. Upon reviewing this case, I have found I that had mistakenly read that section of the statement as relating to a time after the defendant's trip to Cebu, whereas it was in fact a supplement to her answer 25 given in her previous caution statement. I have therefore carefully reconsidered the whole case with the correct position in mind and with the removal of my finding to see whether my mistake affected the rest of my findings and my final decision. I have found after this review that it did has not done so."

10.Mr Poon therefore complains that the learned Magistrate himself used the word "review" and therefore that should have been done in open court or at least with the parties present.

11.There is no doubt that if it was a review and the learned Magistrate should have called all parties together, but this was simply a mistake on the fact.

12.The learned Magistrate used the word "review" and it is unfortunate that Mr Poon considered that to mean exactly what is referred to under section 104 of the Magistrate's Ordinance. Upon a proper reading of paragraph 14 of the Statement of Findings, it is clear that by "review" what the learned Magistrate is saying is merely that he was revisiting the facts and that when he revisited the facts he found that he had made a mistake and so he corrected that mistake and he further considered whether that mistake would affect his decision in the case and he found that it did not . So, it is not a review as would be considered to be covered under section 104 of the Magistrate's Ordinance.

13.On the proper reading of the Magistrate's Findings, it is clear that the learned Magistrate has ample evidence before him to draw the necessary inference about the dishonesty of the Appellant. I note here that the Appellant did not give evidence in the trial and so the learned Magistrate could only consider the evidence as produced by the prosecution and which included the caution statements. But, of course, the learned Magistrate is entitled to considered what weight he would give to the exculpatory parts of the statement and the learned Magistrate did properly consider that, and, at the end of the day, he was left with the only irresistible inference that the Appellant had acted dishonestly.

14.So, in these circumstances, I do not find that the learned Magistrate had made a mistake either in fact or in law and there is no ground to upset the learned Magistrate's conviction and I therefore dismiss the appeal.

Representation:

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

Mr Albert Poon, instructed by Messrs Cheng, Yeung & Co., for the Appellant