HKSAR v. Ma Chiu Yuen

HCMA 372/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.372 OF 2005

(ON APPEAL FROM TWCC 417/2005)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 1.6.2005

Date of Judgment: 1.6.2005

Date of handing down Judgment: 2.6.2005

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J U D G M E N T

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Background

1.The Appellant faced one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210. He pleaded not guilty before a magistrate Mr. J. T. Glass and was convicted after trial. He appealed against the conviction.

2.The trial was conducted in English. As the Appellant is Chinese and preferred to use Chinese in these proceedings,  I decided to conduct the appeal in Cantonese.

3.After hearing submissions I dismissed his appeal. I gave my reasons at the time and I now reduce them in writing, with elaboration on the background.

Facts

4.This is a case of shop theft. The prosecution case was that PW1, an employee of the shop (Watsons), intercepted the Appellant outside the shop after he heard the anti-theft alarm ringing. The Appellant was brought back to the office of the shop. PW2, the assistant manager of the shop, was present in the office. Both PW1 and PW2 saw the Appellant removing 5 packets of batteries and one pack of biscuits (the subject matter of the theft charge) from under his shirt. The Appellant said he would pay for the items and asked the shop staff not to call the police, saying he would die if they do. PW2 nevertheless called the police and PW3 came to make investigation. Under caution the Appellant said “No such thing happened”.

5.The Appellant put to the prosecution witnesses that it was a case of set-up. He chose not to give or call evidence for the defence.

Grounds of appeal

6.The Appellant filed two pages of grounds of appeal. Basically he complained that the learned magistrate has not fully considered the various discrepancies and ambiguities among the prosecution witnesses, and that the learned magistrate has failed to resolved those discrepancies and doubts properly.

7.Instances of discrepancies cited included why PW2 did not hear the anti-theft alarm sounding; why the cashier did not report such sounding; why PW1 need to give chase, why the anti-theft alarm did not go off when the Appellant was brought back to the shop; why PW1 and PW2 failed to describe in detail how the Appellant took the items out from under his shirt…etc. etc.

8.During the hearing the Appellant claimed that the learned magistrate should not have accepted the evidence of PW1 and PW2 when part of the evidence they gave in court were not recorded in their witness statements. The Appellant accused the learned magistrate of being biased against him so that he did not have a fair hearing. He also claimed the learned magistrate has made inferences without factual basis, and that the learned magistrate was making wild guesses. The Appellant said there was a chance that he was innocent.

9.Further, the Appellant claimed that the learned magistrate has made a mistake during the hearing when he confused the pack of biscuit as a packet of chips. The Appellant said such a mistake show that the magistrate could have made a mistake regarding the conviction as well.

Judgment

10.All the points raised by the Appellant in his written grounds have been dealt with by the learned magistrate, who was fully aware of all the discrepancies.

11.There is no evidence to show the learned magistrate was biased.

12.The learned magistrate has indeed made certain mistakes in his Statement of Findings in that he has wrongly described “PW2” as “PW1”. Such mistakes were minor and of no importance here. Nevertheless I would like to take this opportunity to advise magistrates to be more careful in proof-reading their Statement of Findings.

13.It should be noted that during the hearing I have accepted the Appellant’s assertion that the learned magistrate has confused the pack of biscuits with the packet of chips, as a result I have said in open court that such a mistake was contained in the Statement of Findings.  I have since re-checked the Statement of Findings and noted that the learned magistrate had described the item as a box of “Pretz”, which was described as “biscuits” or “Pretz” in the exhibits list. The learned magistrate had not confused the pack of Pretz or biscuits as a packet of chips in the Statement of Findings. I do not have the full transcript of the trial so cannot tell if the learned magistrate has made such a mistake as claimed by the Appellant.

14.In any event, it is clear that the learned magistrate was fully aware the Appellant had with him a packet of chips when he was intercepted, which the Appellant had made payment for.

15.Having read the very detailed Statement of Findings prepared by the learned magistrate, I was satisfied that the learned magistrate has fully evaluated and analysed all the evidence and assessed all the discrepancies before coming to a final conclusion that the Appellant has committed the offence of theft.

16.The conviction was neither unsafe or unsatisfactory and I dismissed the appeal.

Mr. POON Chin Ping, Jackson, Senior Government Counsel for the Respondent

Appellant MA Chiu Yuen acting in person