HKSAR v. Leung Siu Mei

HCMA654/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.654 OF 2004

(ON APPEAL FROM FLCC721 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 27 October 2004

Date of Judgment : 27 October 2004

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J U D G M E N T

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1.The appellant was convicted on 11 May 2004 of one charge of theft.  She was sentenced on the same day to a fine of $2,000.  She now appeals the conviction.

2.The charge was that the appellant did, on 7 September 2003 at Jusco Department Store at Tai Po Centre, steal a number of items.  The evidence placed before the magistrate was that in the evening of 7 September 2003, a plainclothes security guard of the Jusco Supermarket, who gave evidence as PW1 saw the appellant inside the supermarket section taking the items referred to in the charge from a trolley where she had placed them and putting them in a paper bag that she was carrying.  The magistrate in his Statement of Findings said that the witness described the transfer of the items as a hiding action.  The appellant then left her trolley and taking the paper bag with her left the supermarket by an exit next to the cashier counter.  She did not queue up to make payment for the goods at the supermarket counter. 

3.The magistrate further found that the supermarket in question was not an independent and free standing building but was part of a department store.  He accepted that payment for goods purchased in the supermarket could be made at a number of cashier points within the department store and that those points existed both on the floor where the supermarket was situated and on the floor below it.  He found that those floors were connected within the building by escalators and by lifts. 

4.The evidence of PW1, which was accepted by the magistrate, was that he did not intercept the appellant when she left the supermarket section.  He said that she did not take either the escalators or the lifts within the building to go to the lower floor but turned left immediately after exiting the supermarket and pushed open a glass door which separated the department store from a covered passageway that led to the street and to adjoining buildings. 

5.It was accepted by the magistrate that she could have taken a staircase from that outside passageway and travelled to the street level and re-entered the department store where she could have paid.  It was the evidence of PW1 which was accepted by the magistrate that upon his intercepting her in the passageway, the appellant said : “I am sorry, I forgot to pay.”  The appellant, the magistrate found, gave a further explanation to the security officer and a third explanation to the court. 

6.The appellant gave evidence and said that she had selected the items from the supermarket and that as there were lots of people she did not want to queue up to make payment.  She then realized that she needed to buy a birthday card for which she had to go downstairs.  She said she recalled that she had once been told that she could make payments for goods at other floors, so she decided to go downstairs to purchase the card and make the payment for all the goods there at one cashier point. 

7.She testified she did not take the escalator which was just opposite the exit of the supermarket to go downstairs because there were so many people and it was difficult for her to get through them.  She said she first went to the right side and had stopped in front of a shop called A-1 Bakery and could see there were lots of people waiting to get into the lift.  She then noticed some advertisements of Jusco posted on the walls along the passageway outside a panel of glass doors and she wanted to go downstairs from the staircase to the passageway so she pushed open the glass door and entered the passageway area.  At that point, she was approached and stopped by PW1. 

8.The magistrate considered the explanations which had been given by the appellant and disbelieved them.  He did not rely upon that disbelief as lies upon which he could infer the guilt of the appellant.  He dealt with the evidence and found that he was unable to use the explanation or the evidence given by the appellant in her evidence to look for doubts in respect of the prosecution case.

9.The elements of the offence of theft in these circumstances require the prosecution prove that there was a taking of the property set out in the charge; that the taking was dishonest; and that at the time of the taking there was an intent to steal.  It is not an element of the offence that the appellant should have left the premises, the tradition of arrest or the stopping of an offender outside the store is no more than a precaution by those doing the stopping to prevent the raising of a defence of intent to pay while an opportunity still remained to do so.  That is a doubt which if it could or might be true could lead to an acquittal.

10.The single ground of appeal raised by the appellant is that the magistrate failed to make a finding as to whether the appellant was aware that she had left the store when she entered the passageway.  The complaint is that the magistrate found that a normal and reasonable person would have known that that passageway was not part of the department store when he ought to have decided whether the appellant was aware that it was not part of the department store. 

11.This ground of appeal must fail.  The fact that the magistrate did not make that finding does not in any way vitiate the analysis of the evidence which led to his finding of guilt.  He found that the goods had been placed in a paper bag, he found as a matter of fact that the appellant had left the store, he found as he said in the penultimate paragraph of his findings :

“As to the intention of committing the offence, I found that, based on the reasons of above, I could reach an irresistible inference, one which was only reasonable and logical that, at the material time when the defendant took away the stolen properties and put inside the bag that she was carrying, she was doing this to appropriate them with the intention of permanently depriving the Jusco of them.  Her conduct and behaviour was clearly dishonest to every honest and reasonable person and she also knew it was dishonest when she did that.”

12.The magistrate having found that the goods had been taken by her, concealed by her and taken from the premises was entitled to draw the conclusion, the irresistible inference that she did so with an intention to permanently deprive the owner of them and did so dishonestly.  This appeal is dismissed.

Mr David Chan, SGC of Department of Justice, for the Respondent

Mr Paul Tse, instructed by Messrs Li, Wong & Lam, for the Appellant