HKSAR v. Yip Man Wai

HCMA 303/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 303 OF 2004

(ON APPEAL FROM STCC 92/2004)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 3 June 2004

Date of Judgment: 3 June 2004

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J U D G M E N T

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1.The Appellant, a woman of previous good character in her early 30s, appeals against her conviction on one charge of theft, she having pleaded not guilty and been convicted after trial by Miss L K Loh in the Magistrate’s Court at Sha Tin on 27 February 2004.

2.To understand the issue of fact which the Magistrate had to resolve, one turns at once to the helpful way in which she summarized in her Statement of Findings first the prosecution case and then the defence case.  Her summary of the prosecution case reads:

“Ms Cheng Man Wai is a shop assistant at PIT Fashion Shop.  She gave evidence that on the 7 January 2004, the appellant visited the shop and chose a black jacket after trying it on.  Shortly after, Cheng was making a call on her mobile phone, and wandered to the entrance of the shop.  As Cheng suddenly turned back into the shop, she saw the appellant take out a skirt from a paper bag she was holding, took a grey jacket from the rack, stuffed it into the bag, and covered it with the skirt.

Cheng and a colleague discreetly went to check.  She found the empty hanger, and also saw the sleeve of the jacket hanging out of the appellant’s bag.  Having confirmed this, she called her boss and the police.

In the meantime, the appellant paid for the black jacket she had earlier chosen, and asked for a big bag, into which she slipped her own smaller bag inside.  The appellant was later stopped outside the shop, and escorted back.

Whilst waiting for the police, Cheng said several things to the appellant, which she did not respond to, however, after Cheng told her that they were waiting for the police, the appellant said, “I have a daughter, give me a chance.  Now I pay, I really like this jacket.”  She continued begging for a chance until the police arrived.”

3.As for the defence case, the Magistrate summarized it like this:

“The appellant gave evidence that when she was in the shop, Cheng showed her a black jacket, which she liked, and decided to buy.  She wanted to pay and go home, but the sales staff pressurized her to browse and buy more clothes.  They showed her the grey jacket, but she did not like it, and laid it on the counter.

When she was ready to pay for the black jacket, the cashier asked her to put her small bag on the counter, and she did so.  The cashier took out a big bag, and folded all the clothes from the small bag, and the black jacket, into the big bag.  The appellant paid, and left without checking the big bag.

After being intercepted, she agreed that the police be called.  She denied asking Cheng for a chance, etc.  She did not intend to steal.”

4.The Magistrate then evaluated the evidence of Ms Cheng, on the one hand, and that of the Appellant, on the other hand.  As to Ms Cheng’s evidence, the Magistrate said this:

“Cheng gave clear and detailed account of how the appellant had put the grey jacket into her own bag, she had discreetly looked and saw a sleeve of the grey jacket handing out of the appellant’s bag, she witnessed the appellant ask for a big bag and put her own small bag inside, and the appellant made admission to her.  The evidence of Cheng was firm and detailed, and from her account and demeanour, I found her to be reliable and truthful.  Cheng did not know the appellant, and there is no reason for her to frame up another person.”

The Magistrate took a different view of the Appellant’s evidence, of which she said this:

“The appellant’s evidence was incredible.  She said she wanted to pay for the black jacket and immediately rush home to see her daughter, but they asked to browse some more, and she did browse for 5-10 minutes before paying, and another 2-3 minutes after she paid.  She said that the cashier assumed she had clothes in the small bag, and wanted to help her fold those clothes.  However, the cashier would not know this, nor would she know if the clothes needed folding.  Also, it is not important for her clothes to be folded up again, since she was rushing home soon.  She did not try on the black jacket – I find that incredible, especially for a person who obviously has such interest in clothes.  From her account and demeanour in court, I found the appellant to be unreliable and untruthful.  I make these comments about the defence evidence not because the appellant had anything to prove, she did not, but it went to weight to be given to evidence.”

5.On the matter of the two receipts given, the Magistrate said this:

“Upon paying for the black jacket, the appellant was given two receipts, and Cheng testified that the second receipt is simply a reprint of the first receipt, relating to payment for the black jacket.  The explanation is reasonable, and fits the facts of the case.  The appellant confirmed that she bought only the black jacket, so the two receipts did not go to any issue in this case.”

6.It was on the foregoing basis that the Magistrate acted on the evidence of Ms Cheng to convict the Appellant.

7.This brings me to the Perfected Grounds of Appeal filed on the Appellant’s behalf, in which Ms Cheng is referred to as “PW1”.  These grounds read as follows:

“1.     The conviction was founded on an acceptance of the account of PW1 as the basis for the findings of fact.  (See p. 4E of the transcript of the Reasons for Verdict and paragraph 12 of the Statement of Findings and Reasons for Decision).

2.             The magistrate was not justified in basing a conviction on an acceptance of the evidence of PW1 because:-

i)               PW1 expressed herself as ‘not sure’ about the actions of the appellant (see pp. 6E-G and 7C of the transcript of evidence of PW1) despite having an unobstructed and close view (see p. 14J-K of the transcript of evidence of PW1).

ii)             PW1 did not give evidence that she saw the appellant remove the grey jacket from the rack.  It was an assumption reached by PW1 after finding an empty hanger on the rack.  (See pp. 6T-7D of the transcript of evidence of PW1).

3.             Accordingly, the magistrate was not justified in finding that ‘she (PW1) saw the appellant …… took a grey jacket from the rack ….’ (See paragraph 4 of the Statement of Findings and Reasons for Decision).

4.             The magistrate erred in evaluating the evidence of PW1 by asking herself whether PW1 had any reason to ‘frame up another person.’  (See paragraph 12 of the Statement of Findings and Reasons for Decision).  It was not part of the appellant’s case that PW1 was deliberately ‘framing’ her.  It follows that the magistrate did not approach the evidence of PW1 by considering the possibility that a witness may be mistaken.

5.             The magistrate misunderstood the significance of the two receipts.  (See paragraph 14 of the Statement of Findings and Reasons for Decision).  The magistrate failed to recognise the inference that a dishonest person would not ask for two receipts.”

8.A further point was put forward in the written argument put in by Mr Francis Burkett for the Appellant.  This is directed to the Magistrate’s statement as to what passed between the Appellant and Ms Cheng.  The Magistrate said this in her Statement of Findings: “the appellant made admission to her”.  As to this, Mr Burkett’s written argument reads:

“‘The appellant made admission to her.’  No admissions of theft were made.  To ‘ask for a chance’ cannot be construed as an admission of theft unless the context in which it is said is such that this is the only reasonable inference.  A person may ‘ask for a chance’ in the sense of requesting an opportunity to resolve the matter without accepting any wrongdoing.  Nor is an offer to pay necessarily an admission of theft.”

9.How a person reacts when accused of a crime can be relevant even though it falls short of an admission.  Perhaps the Magistrate used the word “admission” merely as a shorthand way to refer to Ms Cheng’s evidence that the Appellant had asked her for a chance and the Appellant’s evidence that she had not asked Ms Cheng for a chance.  But the concept of an admission is a powerful one in our criminal law.  I do not think it would be safe to treat the Magistrate’s use of it as limited to something less than an admission.  Indeed the prosecution does not invite me to so treat the Magistrate’s use of that word.  So I ask myself whether what Ms Cheng says that the Appellant said amounts to an admission.  I have carefully considered the prosecution’s submission that it does amount to an admission.  But I have come to the conclusion that Mr Burkett’s argument to the contrary is valid. 

10.In the result, without going into the other grounds, I am of the view that this conviction is unsafe on the basis that something which could not safely have been treated as an admission was so treated.  I allow the appeal to quash this conviction.

Mr Francis Burkett, instructed by Messer Ong Hean Cheng & Company, for the Appellant

Mr Tam Sze Lok, Issac, SGC, of Department of Justice, for the Respondent