HKSAR v. Yip Ping Chung

HCMA001084/2003

HCMA1084/2003

IN THE HIGH COURT OF THE

HONG KONG ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1084 OF 2003

(ON APPEAL FROM ESCC 2621/2003)

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Coram: Hon. Gall J in Court

Date of Hearing: 18 March 2004

Date of Judgment: 18 March 2004

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J U D G M E N T

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1.This is Magistracy Appeal No. 1084 of 2003. The appellant was convicted on 21 October 2003 of one charge of theft by Magistrate Julia Livesey. He was, on the same day, sentenced to a fine of $1,500. He now appeals the conviction.

2.The facts were, to a large degree, not in dispute. On 3 August 2003, the appellant went to a shop at Metropole Building, Kings' Road, North Point, by the name of Bossini. He went into the section where altered goods are to be collected and there collected two pairs of trousers which were put into a bag which he then carried.

3.He was observed by one of the salesladies standing in the menswear section, carrying the bag. This witness said that she saw him taking a pair of trousers from the menswear section and putting them in the bag. Her evidence in cross-examination was this: she was asked:

"Now, you saw the defendant put the third pair of trousers, in fact, a pair of trousers, Exhibit P2, into a bag. Did you actually see how he did it?

A. He picked up the pair of trousers.

Interpreter: Witness demonstrated.

A. And then very quickly put it into the bag."

4.It was her evidence that he then walked around that portion of the shop - the period is unclear - and that she called a colleague on the microphone set that she was wearing who came to her and spoke to her and who then went and intercepted the appellant as he left the premises.

5.The appellant did not disagree with much of what was said. He did disagree that he had placed the trousers quickly into a bag. He said that he looked at several garments and when he came to those trousers that he took them from the shelf and that he unfolded them and held them against himself to see if they were the right size, then refolded them and put them in the bag. This was not described by the first prosecution witness who gave evidence about what she had seen because it was not put to her in cross-examination that it had happened.

6.The case for the appellant, and no onus fell upon him, was that having put them in the bag, he considered the purchase of a birthday present for his grandson and then left the shop, forgetting that he had picked up the trousers and forgetting to pay for them. He said he had no dishonest intent and he had no intent to permanently deprive the shop of the trousers.

7.The first ground of appeal is that the magistrate failed to consider whether the appellant had the requisite mens rea at the material time, especially when the appellant was leaving the shop in question.

8.She did have squarely before her the defence of the appellant and, indeed, Mr Chan who appeared for the appellant said in his closing address:

"First of all, it's common ground that the defendant has agreed with the bulk of the prosecution case and apart from saying he forgot to pay the item in question, the pair of trousers, and he did all that as alleged by the prosecution witnesses."

9.That is not a completely true statement as he did not agree that he had placed the trousers very quickly in the bag, but it did place before the magistrate the issue that his defence was that he forgot to pay and, therefore, it was critical to her analysis to determine whether the taking had been dishonest, objectively and subjectively, and he had intended to permanently deprive the shop of the trousers.

10.She refers to that obliquely in her findings when she said:

"In determining the facts of the case, I bore in mind that the prosecution had to prove the charge against the appellant beyond all reasonable doubt and so that I was sure."

11.In saying that, and in later finding the charge proved beyond reasonable doubt, she could only have had in mind the defence raised that the appellant had forgotten to pay and, therefore, have considered fully the issues of dishonesty and the taking away of the goods.

12.It is not for a magistrate to set out every detail of her reasoning and it is sufficient for her to indicate that she had given the proper consideration to the elements of the offence, which she did here.

13.The next ground of appeal is that the magistrate placed undue weight on the fact that there is nothing in the video to suggest the appellant had the trousers unfolded at any stage, or refolded them, and undue weight to the fact it was not put to the prosecution witnesses that such incidents had happened.

14.Miss Wong, in her argument, analyses the transcript of the evidence and the magistrate's findings. It was said in the transcript that the counter from which the trousers were taken was not visible in the video. However, notwithstanding that, the magistrate said:

"There is nothing in the video to suggest the appellant had the trousers unfolded at any stage or, indeed, refolded them at any stage. PW1 certainly makes no mention of an action taking place. If it had occurred as described by the appellant, then it would have been observable at some point in the video."

15.Miss Wong's argument being that if the trouser counter was not visible in the video, the magistrate was not entitled to come to that conclusion.

16.I am not able to put myself in the position of the magistrate. She had the benefit of seeing the closed circuit television recording and she found, as a matter of fact, from what she saw on that recording that if the trousers had been folded and unfolded, notwithstanding that the trouser counter was not shown in the video - a fact to which he referred - then it would have been observable at some point on the video.

17.There is nothing in the transcript to indicate that the view she had of the appellant at the time of the taking of the item, which I note is not readily identifiable in the video, precluded her being able to see whether or not he unfolded and refolded the trousers.

18.The fact that these matters were not put to the prosecution witnesses was not given emphasis by the magistrate and can have been no more than the usual evaluation a magistrate makes of the evidence of a defendant in considering what matters are said in-chief, what emerges in cross-examination, and whether what has emerged has been supported by cross-examination of earlier witnesses. A magistrate is entitled to take that into consideration when assessing credibility.

19.The last ground of appeal is that the magistrate failed to consider or give sufficient weight to the duration of time the appellant stayed inside the shop, the behaviour of the appellant inside the shop at all material times, and the age of the appellant.

20.There is some confusion in the evidence as to the appellant's movement inside the shop after the placing of the trousers in the bag and between the two witnesses. There were discrepancies. The magistrate considered them and found them not to be material.

21.Nonetheless, Miss Wong makes a valid point that the appellant stayed for some four minutes inside the shop and acted perfectly normally, as far as can be determined, during that period of time. This, whilst a matter of some significance, is not a matter which, in my view, was sufficiently material for the magistrate to have dealt with it specifically, nor the failure to deal with it specifically is enough to cast doubt upon the conviction.

22.The last matter, Miss Wong urged upon me, is that a person of the age of 58 might be more likely than a younger person to pick up an item, place it in a bag and leave the shop without paying through inadvertence, and that the magistrate should have considered that fact. I am not attracted by that argument.

23.The last ground of appeal is that, in the premises, the conviction of the learned magistrate is unsafe or unsatisfactory. I do not find it to be so, and the appeal against conviction is dismissed.

Representation:

Mr Simon Tso, SGC of the Department of Justice, for the Respondent

Miss Catherine Wong, instructed by Messrs David Hui & Co., for the Appellant