HKSAR v. Lai Hoi Ning

HCMA1087/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1087 OF 2004

(ON APPEAL FROM STCC 965 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Dates of Hearing : 23 February and 24 August 2005

Date of Judgment : 24 August 2005

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J U D G M E N T

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1.The appellant was convicted on 14 September 2004 of one charge of theft.  On the same day, she was sentenced to a fine of $2,500.  The facts alleged by the prosecution were that on 4 July 2004, the appellant entered a shop at Phase I, New Town Plaza at Shatin operated by Marks & Spencer Department Store.  There, it was alleged, she stole one packet of five ladies’ underpants valued at $150, the property of Marks & Spencer (Asia Pacific) Limited.  She now appeals that conviction.

2.The evidence of the prosecution as given primarily by PW1, a security officer of the store, was that she first noticed the appellant in the female underwear department and saw her looking at packets of underpants.  She said that the appellant very quickly took a packet of the underpants from the display and concealed them in between her shoulder bag and her waist and she then left the shop without paying.

3.The witness said she followed the appellant out of the shop and caught up with her, and told her that she was from Marks & Spencer.  The appellant said :“Don’t touch me” and tried to leave.  The witness grasped the appellant’s shoulder bag together with the packet of underpants and they returned to the shop.

4.It was put to PW1, the security officer, that the packet of underpants were hooked, they having a hook on the packaging to attach them to the display onto a ring or buckle of the bag.  She denied that was so and denied ever having told the police officer who subsequently arrived at the scene that this was the case.  She did however say in her evidence that when she stopped the appellant, the packet of underpants were partly visible.

5.In the statement given by the appellant to Senior Police Constable 22042, the officer put to her the facts upon which the arrest was being made.  He said this :

“… I have reason to believe that at 1355 hours on 4th July 2004, at the Ladies’ Underwear Department in the Marks and Spencer Department Store at Phase 1, New Town Centre, Shatin, you took away a pack of underpants from a goods shelf with (your) right hand and tucked (it) in between the right side of (your) waist and the black handbag that you were shouldering.  Then (you) walked past the cashier counter and left the Marks and Spencer Department Store through its entrance without making any payment. After that, (you were) intercepted by (a) security guard of the Marks and Spencer Department Store. At that time, the pack of underpants that (you) took was still hooked onto the strap buckle of your handbag. …”

He then cautioned the appellant.

6.It was quite clear from this passage that there was a discrepancy between what was said by PW1, the security officer, and by the police officer who relied upon what he had been told by PW1 and had the appellant in his view at the time he was taking the statement.

7.The difficulty with the discrepancy is this : if a person takes an object from a shelf in a supermarket or department store and tucks it between a handbag and her body and holds it there, then the only reasonable inference that can be drawn, in my view, is that there is an intent to conceal it, and if that person subsequently leave the store without paying for that item, there was an intent to dishonestly take the item.  If, however, the object taken is attached by a hook to the handbag carried by the appellant and this at least at the time the appellant was stopped partly visible to someone observing her, then two inferences arise.  One is that it is being held there and perhaps concealed partly by the bag or partly by the arm of the person holding the bag with the intent that it should be carried unpaid from the shop.  The other inference to be drawn is that it has been placed there and forgotten.

8.It was necessary for the magistrate to deal with this discrepancy and resolve it so that the only reasonable inference available was one of dishonesty and that a conviction must therefore follow.  He said this in his Statement of Findings :

“The one difficulty with PW1’s evidence is that she denies telling the police officer that the underpants were hooked onto the defendant’s bag. But, undoubtedly, PW2, the police officer, believed that PW1 did had tell her that; that is why it forms part of the allegations recorded in the police officer’s notebook.
There was some suggestion that the security officer (PW1) spoke with an accent, a mainland accent. But whether that is so or not, it is not, I find, at all impossible that there was a simple and honest misunderstanding between the security officer (PW1) and the police officer (PW2) as to exactly what it was that PW1 said.”

9.To that Mr Shiu adds the evidence of PW1 that the appellant left the shop hurriedly after picking up the packet of pants.  The evidence of the appellant was that she, far from leaving the shop immediately, went on to consider other purchases, went to another department and then finally left the shop.

10.With regard to that difference, the magistrate said this :

“I do not believe the evidence of the defendant when she says that she had forgotten all about the packet of pants as she left the shop. I am satisfied that she did take the packet of pants and immediately conceal it underneath her bag, and then immediately leave the shop.  She could not, I find, have possibly forgotten about the existence of the underpants.”

11.I accept that it is not necessary that a magistrate deal with every item of evidence.  However, there is a major difference between the evidence of the appellant and the evidence of PW1 as to her movements after the pants were taken from the display and entered the possession of the appellant.  It would have been easier for my decision had that discrepancy had been dealt with expressly.  It leaves me with a difficulty concerning the inference.  The law is clear where there is more than one reasonable inference available to the adjudicating officer or to a jury, then the inference in favour of the accused must be drawn.

12.I have some difficulty with the resolution that the magistrate made of the difference between the evidence of PW1 and PW2 as to whether the packet was hooked to the bag of the appellant.

13.The evidence of PW1 was that at the time of the stopping of the appellant the packet was partly visible suggests that it was not being held in concealment behind the bag between it and the body of the appellant.  Further, it gives rise to a suggestion that it may have been hooked to the bag of the appellant and that the second inference which I have referred arose.

14.Mr Egan has brought this appeal on the basis that there is a lurking doubt.  He has, in his argument, referred me to the judgment of Widgery LJ in R. v. Cooper [1969] 1 QB 267 at 271.  I do not need to repeat that quotation other than to quote the last two sentences :

“… That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it.”

15.I do not criticise the magistrate in this matter.  However, my general feel of the case is to wonder whether an injustice might not have been done.

16.Appeal against conviction is allowed.  Fine is set aside.

Mr Paul Ho, SGC of Department of Justice, for HKSAR (23 February 2005)

Mr Gavin Shiu, SADPP of Department of Justice,  for HKSAR (24 August 2005)

Mr K. Egan, instructed by Messrs Robertsons, for the Appellant