HKSAR v. Shi San Kak

HCMA 1064/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1064 OF 2004

(ON APPEAL FROM ESCC 2868/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 10 December 2004

Date of Judgment: 10 December 2004

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted after trial in the Magistrate’s Court of one charge of theft.  It is commonly referred to as a shop lifting offence.

2.The prosecution called 3 witnesses.  The 1^st prosecution witness (PW1) was a plainclothes security guard working at the Pricerite Store.  PW1 said he saw the Appellant who was holding a plastic bag in his hand at the time take from the shelf two packs of cleanser and placed them into his right front trouser pocket.  He then picked up two more packs of the same cleanser and again placed them into his front trouser pocket.  Then the Appellant walked away and near the shelf where there were basin strainers, he picked up a basin strainer and put it into his right front trouser pocket.

3.PW1 said he saw the Appellant then walk out of the store and did not make payment.  PW1 said he stopped the Appellant outside the store by placing his hand on the Appellant’s shoulder.  But the Appellant started to run away.  PW1 chased after the Appellant and finally caught up with him.  In the course of the chase, PW1 said he saw the Appellant took out from his pocket what he had taken from the store and threw them on the ground.  PW1 saw the Appellant throw away a pack of cleanser and also a pack of strainer.  Finally he caught up with the Appellant.  He also saw PW2 who had helped him chase the Appellant.  At that stage, the Appellant denied he had taken anything. 

4.When the police arrived, PW1 went with the police to pick up the items dropped by the Appellant.  But was only able to recover the pack of basin strainer.  It was produced as Exhibit P1.

5.PW2 said he was waiting for someone outside the SOGO Department Store.  When he heard someone shout “robbery” and he saw a male chasing another male, he immediately joined in the chase and caught up with the Appellant and stopped the Appellant.

6.PW3 is PC935, the arresting officer.  He gave evidence about the arrest of the Appellant.  He also said that the Appellant did not complain to him that he had been assaulted.  It was alleged by the Appellant that PW2 had kicked him.

7.The Appellant gave evidence and said that on that day of the offence, he was on the way to deliver samples of cloth to a customer.  He had money with him and he had gone into the Pricerite Store because he wanted to buy a soup ladle.  He could not find anything to buy and he left the store.  He said he did pick up a basin strainer but before he left the store, he had put it on a shelf.  He denied that he had taken any cleanser or basin strainer out of the shop. 

8.When he left the store, PW1 patted him on his shoulder and asked him if he had stolen anything.  PW1 then searched his plastic bag and found nothing.  At that stage, the Appellant said he scolded PW1 and PW1 pulled his hair and punched his stomach.  When PW1 started shouting “snatching, beat him to death”, the Appellant said he ran.  PW2 joined the chase.  The Appellant said, in the course of the chase, PW2 kicked him.

9.The Appellant, at the time when he gave evidence, demonstrated to the court how he could not place all the item into his pocket.

10.After the Appellant was granted bail, he had gone to the United Christian Hospital to be medically examined.  The doctor found tenderness over his epigastric region.

11.The learned Magistrate after hearing all the evidence, analysed each witness’s evidence but came to the conclusion that PW1, PW2 and PW3 were honest and credible witnesses.  When the learned Magistrate analysed and examined the Appellant’s evidence, she found that the Appellant was vague and evasive when answering questions.  She was not impressed with the Appellant and found that he was not a witness worthy of credit.  The learned Magistrate also found that the medical report, produced by the Appellant, did not help because he was only examined 24 hours later.  The medical findings was that he had tenderness only on the epigastric region and was inconclusive in supporting the allegations of the Appellant. 

12.At the end of the day, the learned Magistrate found that the events were as described by PW1 and PW1 was an honest and incredible witness and relying upon on his evidence, she convicted the Appellant.

13.The Appellant on appeal submitted grounds of appeal which were no more than a repetition of what was submitted by his counsel in the court below.  He again stressed the fact that he did not steal and that he could not put all those items into his trouser pocket.  He demonstrated before this court.  It is obvious that those items could go into the pocket, although it created a bulge.  He also criticized the witness PW1 and said that PW2’s evidence was inconsistent because PW2  did not see him drop anything.  This fact was brought to the attention of the learned Magistrate, and the learned Magistrate was well aware of the inconsistency in the evidence of the witnesses.  But at the end of the day, she was entitled to conclude that the inconsistency did not affect the credibility and accuracy of the evidence of PW1.  The Appellant then submitted that the CCTV tape of Pricerite would have proved that he did not steal.  He then proceeded to tell the court what he claimed he had heard.

14.This court is not prepared to accept evidence from him at this stage.  The point is that the prosecution relied on the evidence of PW1 and it is a matter for the learned Magistrate as to whether PW1’s evidence was credible and accurate and truthful and whether his evidence was sufficient to find a conviction and the learned Magistrate found that it did so.

15.As for the alleged assault upon him, the learned Magistrate was well aware of that evidence but it was not something that the learned Magistrate had considered was truthful.  As for the allegations of the Appellant about PW3, all this matter was before the learned Magistrate and at the end of the day, the learned Magistrate found against the Appellant. 

16.As the Appellant is appearing in person, he probably does not understand that an appeal is not a retrial of the facts, the learned Magistrate had a chance to observe the witnesses give evidence before her and being cross-examined, and she is the best person to decide where the truth lies.

17.A court on appeal, only look at the facts as found by the learned Magistrate and consider whether the learned Magistrate in finding a conviction had made an error either in fact or in law. 

18.The learned Magistrate had very carefully analysed the evidence of all the witnesses, counsel representing the Appellant in the court below had also in her final submissions drawn to the learned Magistrate’s attention all the points in the favour of the Appellant.  The learned Magistrate was well aware of everything that could be said in favour of the defence.

19.At the end of the day, her conclusion was that PW1 was a truthful witness and she was able to rely on his evidence entirely to convict the Appellant.  I had read the Statement of Findings of the learned Magistrate, and also her oral reason for verdict.  I do not find that there had been any error committed by the learned Magistrate and as had been said by the Court of Appeal on many occasions, a court sitting on appeal would very rarely interfere with the findings of fact made by a Magistrate.  In the circumstances, I find that there is no merit in this appeal and the appeal is dismissed.

Mr Paul Ho, SGC of the Department of Justice, for the Respondent

The Appellant, in person