HKSAR v. Wong Chi Shuen Packy

HCMA 1047/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1047 OF 2004

(ON APPEAL FROM KCCC 12191/2004)

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BETWEEN

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Before: Hon Beeson J in Court

Date of Hearing: 4 February 2005

Date of Judgment: 12 April 2005

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J U D G M E N T

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1.The Appellant was convicted after trial in the Magistracy of one count of Theft and now appeals against her conviction.

Facts

2.The prosecution evidence was very simple.  A security officer in a Duty Free Shoppers’ store saw the Appellant, who was carrying a paper carrier bag on her arm, take a wallet from a display rack and a handbag from another rack.  She then walked slowly across the shop and entered the female washroom with the wallet and handbag in her hand.  The officer waited outside for a few minutes and saw the Appellant come out of the washroom with her paper carrier and the handbag looped on her arm.  The Appellant was talking on a mobile phone and left the shop through a side exit.  The security officer intercepted the Appellant outside the shop at a staircase just past the glass doors of the side exit, and invited her to return to the shop.  Back at the security office, the Appellant gave the handbag to the security officer.  The wallet was inside.

3.A police officer attended the scene.  Under caution, the Appellant said in English that she was on the phone.  She had taken medication, and did not notice any sign.  The Appellant was searched and found to have $1,000 in cash and some credit cards on her person.

The defence case

4.The Appellant said she wished to buy a handbag and wallet and collected them from different racks in the shop. She walked across the shop, but as she needed to use the washroom she took the unpaid-for items with her, into the washroom.  She put the wallet into the handbag and hung the handbag on the door to keep them clean.  She made a telephone call to a customer’s hotline about a complaint she had been pursuing that morning and was put on “hold”.  She left the toilet area seeking a better telephone reception.  After leaving the washroom, she went out the glass door, but did not notice it was an exit.  She had no idea how many floors the shop had and she had no intention of leaving the shop.  When she was using the telephone, she encountered the security officer who was in civilian clothes.  The officer was a stranger to her and was impolite so, at first, she was reluctant to follow him, but later did so.

5.The Appellant stated that she had taken medication which made her drowsy and accordingly she did not notice any sign at the side exit that she would have been able to see if she had not taken the medication.

6.There were six perfected grounds of appeal;

(1)	The Magistrate’s analysis of the issues was inadequate and inappropriate in a case where the prosecution evidence was not significantly in dispute and where there was no evidence of covert or suspicious actions by the appellant that might have indicated an intention to steal.  The Magistrate, allegedly, failed to deal with the central issue, i.e. whether or not the Appellant had, or might have had, an intention to steal;
(2)	The Magistrate inadequately analysed the Appellant’s evidence;
(3)	The Magistrate erred in his analysis of the evidence by appearing to place weight on his finding that the prosecution witnesses were honest and truthful;
(4)	The Magistrate failed to take into account sufficiently that there was no evidence of any covert action by the Appellant;
(5)	The Magistrate had not stated properly his oral reasons for decision; in particular he had not set out specific findings of fact against the Appellant;
(6)	In canvassing the extent of the Appellant’s evidence the Magistrate, erroneously, factored into his Statement of Findings the suggestion that she did not know whether there were any floors above the floor where she had picked up the items.

Two further grounds of appeal were produced at the appeal hearing, being further examples of the complaints made in ground 6 of the original grounds of appeal.

7.The Magistrate in his Statement of Findings set out his view of the evidence.  The Appellant was represented at the trial and on appeal, although not by the same counsel.  The submissions made at trial were re-canvassed on this appeal.  In his Statement of Findings the Magistrate made it clear that he was fully aware that the central issue was whether or not the Appellant had the intention to steal – his findings are set out at paragraphs 16 and 17 and are reproduced below:

“	16.	The issue of this case was whether the Defendant was dishonest and with the intention of permanently depriving the others to have the exhibits in question.  The burden was on the prosecution to prove both elements.
	17.	With the findings of facts and take into account of all the circumstances, I was satisfied that she was, at the material time, i.e. when she walked past that side door, she was well aware that she had the exhibits in her hand and that the exhibit had not been paid for, and she had no intention, whatsoever of making any payment.  I was satisfied that she was dishonest and she had the intention of permanently depriving the others to have the exhibits in question.”

8.Although there was no serious factual dispute about what occurred it was necessary, despite Appellant’s counsel’s submissions otherwise, for the Magistrate to satisfy himself as to credibility and accuracy of the prosecution evidence.  It was for him to consider whether the Appellant’s strange behaviour in relation to the items amounted to absentmindedness, or ignorance of her surroundings, or whether it was indicative of her intent to steal the items.

9.The Appellant having chosen to give evidence, it was necessary for the magistrate to assess it.  This he did after reminding himself in detail of features which made it less likely that the Appellant would commit such an offence.  On the basis of the Appellant’s clear record he directed himself on propensity and credibility.  Despite such direction he found that he did not believe the Appellant and convicted her.  Having considered the facts of the case, the Magistrate’s Statement of Findings and counsels’ submissions I can find no basis for disturbing this conviction.  This appeal is dismissed.

Miss Rosaline S Y Leung, SGC of the Department of Justice, for the Respondent

Mr Dominic Yeung, instructed by Messrs Simon Ho & Co., for the Appellant