HKSAR v. Tan Thuan Heng Lawrence

HCMA236/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.236 OF 2005

(On Appeal From STCC 1175 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 29 September 2005

Date of Judgment : 29 September 2005

Date of Handing Down Reasons for Judgment : 19 October 2005

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REASONS  FOR  JUDGMENT

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1.The appellant was convicted after trial of one charge of ‘theft’, contrary to section 9 of the Theft Ordinance (Cap.210).  He was sentenced to a fine of $3,000.  He now appeals against the conviction.

The allegation

2.The allegation is that he stole “two packets of 9V batteries, M/N : Energizer, total value $170” and “two boxes of 1.2V batteries, M/N : GP, total value $158” from a Park’N Shop Superstore.

The evidence

3.PW1 was an employee of the supermarket in question.  Her evidence was that she saw the appellant take two packets of GP batteries from a display shelf, walk to another part of the supermarket, take the batteries from their packing, discard the packing on the floor and put the batteries into his trousers pocket.  The appellant then left the supermarket.  PW1 stopped the appellant outside and told him he had not paid for the batteries.  In reply, the appellant asked for a chance.  The two of them then returned to the supermarket where the appellant took from his trousers pocket Exhibit P1 (two boxes of GP batteries) and Exhibit P3 (two loose Energizer batteries) neither of which had any outer packing.  The discarded packing was later picked up by PW1 (Exhibit P2) which turned out to be packing for Energizer batteries.

4.PW2 was a trainee manager of the supermarket.  She gave evidence that Exhibit P2 (the discarded packing) did belong to them.  She could tell because the anti-theft tag on it bore the code of their particular supermarket.  As for Exhibits P1 and P3, her evidence was that they sold the same type of GP and Energizer batteries but could not tell where they came from without the packing.

5.PW3 was the police officer who arrested and cautioned the appellant.  According to him, the appellant made the following admission under caution : “Sir, it was because of my momentary greed that I pocketed the batteries into my pocket without making payment.  Give me a chance.”  Later, the appellant signed on his notebook to acknowledge his post-record of what was allegedly said earlier.

6.Legally represented, the appellant did not give evidence or call any witnesses.  Part of the defence case was that he never made the oral admission at scene as alleged by PW3.  It was also submitted unsuccessfully at half-time that there was no evidence to link the ownership of the batteries to the supermarket.

The magistrate’s findings

7.In his Statement of Findings, the magistrate made reference to his oral reasons as to why he convicted the appellant.  I quote them in full (pp.117Q to 118T of the appeal bundle) :

“In coming to my conclusion, I have borne in mind the fact that the defendant has no previous convictions.  Now, firstly, the ownership of the batteries in question.  The evidence here is such that I have no hesitation in inferring that the two 9V Energizer batteries had been contained in the packing found on the floor by PW1, packing being produced as Exhibit No. 2.

PW2, the trainee manager, was able to identify the packing as originating from the supermarket in question.  I am satisfied the prosecution had proved that the two Energizer batteries are the property of the supermarket.

As for the GP batteries, I am satisfied that the defendant took them from the shelf in the supermarket, plainly they are, too, the property of the supermarket.  PW1 did not notice the defendant removing any packaging from the GP batteries.  She did see him remove the packaging from the Energizer batteries.  She did not see the defendant take the Energizer batteries.  What must have happened, and I infer this from the evidence, is that the defendant had taken the Energizer batteries from the shelf before PW1 had noticed him.

After PW1 had noticed the defendant, the defendant took the GP batteries from the shelf.  He discarded the packaging of those batteries without PW1 seeing, and then walked to another part of the supermarket holding all the batteries.  He then removed the wrapping from the Energizer batteries and put all the batteries into his trouser pocket.  He then left the supermarket without paying.

On being stopped, the defendant asked for a chance.  I do not know what he meant by that.  He has, as it is his right, chosen not to give evidence.  And therefore I have not heard from him what he meant when he said those words.  The defendant was taken to the office of the supermarket where he took the batteries from his trouser pocket.  The police were called.  The defendant was arrested and cautioned.

As for the police officer’s notebook makes plain, the defendant was cautioned for shoplifting.  The defendant could not have been under any illusion as to why he was being arrested.

In response to the caution, the defendant said, ‘I put the batteries into my trouser pocket without making payment out of a moment of greed.  Please give me a chance.’  That is a clear admission of theft.  I am satisfied the defendant said those words, he knew what he was saying and he meant to say them.  I find that I can safely rely on what the defendant said.  I ignore instead the police officer’s opinion that the defendant’s behaviour in the police station was indicative of remorse.

I am satisfied that the prosecution had proved that the defendant took the batteries from the supermarket intending not to pay for them.  I am satisfied that he is dishonest.  I am satisfied the defendant knew that he is dishonest.  I am satisfied that he is guilty of theft.”

The appeal

8.The appellant advances four grounds.

9.Ground (1) alleges material irregularity in that the magistrate failed to hold a voir dire on the voluntariness of the post-record in PW3’s notebook.  Ground (2) complains that the magistrate erred in wrongly inferring that the appellant had unwrapped and discarded the packing of Exhibit P1 (the two boxes of GP batteries).

10.These are the appellants’ main grounds.

11.Having heard submissions, I do have concerns about what is raised in Ground (2), and the question of the ownership of the batteries generally.  I say this because the packing of the two GP batteries was never found.  PW2 thought the discarded packing was it and did not bother to look further.  It has also been pointed out to me that other batteries were in fact found from the appellant’s trousers pocket.  They too were without outer wrapping.  They were never produced and PW2’s description of them was vague.  There was no mention of them in the magistrate’s reasons.

12.In the circumstances, government counsel concedes that the appellant’s admission is the linchpin of the conviction.  If removed, a conclusion based solely on PW2’s doubtful observation and the multitude of unexplained batteries will not be safe. 

13.This leads us back to Ground (1).

14.Here, it should be noted that no issue was ever raised as regards voluntariness at trial.  The defence position was that the admission at scene was never spoken.  By this, I mean the admission to PW3 as it is clear that the magistrate placed no weight on what might have been said to PW2.  (See his oral reasons.)

15.As for the post-record in PW3’s notebook, one sees the following exchange in PW3’s cross-examination (p.103N to p.104E) :

“Q.	And I suggest to you that he all along asked you how long it would take and he was -- very much wanted to have the matter over and done with as quickly as possible.
A.	I disagree.
Q.	And he did not actually read carefully over your notebook, and he was just asked to sign his name and he put his name down.
Court:	Sorry, he ….
MR YEUNG:	The defendant
Court:	The defendant did not what?
Mr YEUNG:	Did not actually read over the notebook carefully and he was just ….
Court:	Well, I don’t know if he’s able to say how carefully the defendant read it.
Mr YEUNG:	Maybe he can or maybe he cannot, we don’t know.  Maybe one can tell you if one is having a casual look or one is sort of reading it word – carefully
Court:	All right, if you think it’s of help.
A.	I disagree.
Court:	Yes.
MR YEUNG:	I’ve no further questions.
….”

16.Now differently represented, the appellant’s contention is that a voir dire should have been held on the post-record given the allegation that the appellant was “just asked to sign”.  Furthermore, the post-record contained an acknowledgement of the appellant that what was written there was “the same” as the alleged verbal, hence an elaboration, hence making a voir dire more pressing.

17.With some reluctance, I agree with counsel.  ‘Being just asked to sign’ is a typical ground of objection in the context of voir dires.  It should have alerted the magistrate of the possible need for one.  It matters not that no issue was raised as regards the verbal, and it matters not whether the defence had specifically raised the issue with the court.  It is enough if matters were put in cross-examination : R. v. Thongjai & Another [1997] HKLRD 678. The fact that there was a written elaboration on the verbal worsened the situation.

18.To conclude, the magistrate failed to consider the question of voluntariness over the post-record.  He failed to distinguish between the verbal and the post-record when relying on the appellant’s admission.  (See his oral reasons.)  This, coupled with the matters concerning the ownership of the batteries, renders the conviction in this case unsafe and unsatisfactory.  That is my judgment.

19.The appeal is allowed.  Both the conviction the sentence are set aside.

Ms Cheung Kit Yee, Kathie, GC of the Department of Justice, for HKSAR

Mr Cheng Huan, SC, Mr Lawrence Hui and Mr Bernard Chow, instructed by Messrs Ford, Kwan & Co., for the Appellant