HKSAR v. Chung Pui Ki

HCMA871/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 871 OF 2005

(ON APPEAL FROM KTCC 3853 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 9 November 2005

Date of Judgment : 18 November 2005

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J U D G M E N T

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1.This is an appeal against conviction only.

2.The appellant was convicted after trial of an offence of shoplifting, contrary to section 9 of the Theft Ordinance, Cap. 210.

3.The facts of the case as found by the magistrate were that the appellant had attempted to leave a Park’N Shop supermarket without paying for a bottle of bath soap.

4.She had purchased three cups of noodles and paid for them at the checkout counter as she left, but had secreted the bath soap in her handbag.  When she attempted to leave the exit door of the supermarket, a magnetic strip attached to the bath soap triggered an anti-theft alarm at the exit.

5.According to the supermarket staff called to give evidence, the appellant had then been asked to come back inside the supermarket.  The appellant did so, and opened her handbag and then expressed surprise that there was a bottle of bath soap belonging to the supermarket in it and said she had been framed.   Eventually the police came to the scene and the appellant was arrested.

6.The above facts were not in issue.  What was in issue was quite simply whether it was possible that the bath soap may have been placed in the appellant’s handbag without her knowledge whilst she had been in the process of purchasing the cup noodles.

7.The perfected grounds of appeal advanced on behalf of the appellant by Mr P.Y. Lo of counsel may be summarised as follows :

(1)	that the magistrate should not have inferred on the proven facts that the appellant stole the bottle of bath soap;
(2)	the immediate and subsequent reactions of the appellant when confronted with the presence of the bath soap in her handbag were inconsistent with guilt;
(3)	the magistrate did not properly consider the evidence in favour of the appellant;
(4)	the magistrate did not give proper weight to the appellant’s good character;
(5)	the magistrate made a global finding of guilt rather than satisfying himself that each element of the offence had been proven.

8.Grounds 1, 2 and 3 can be dealt with together as the primary thrust of Mr Lo’s argument before me was to the effect the magistrate failed to take into account matters in favour of the applicant, including her reactions at the scene, when inferring the applicant’s guilt.  The important aspects of the evidence relied upon by Mr Lo in this regard concerned the appellant’s staying in the supermarket once the anti-theft device had sounded rather than fleeing; her early claim to the supermarket staff and later to the police that she had been “framed”; her insistence to view any CCTV record of her presence in the supermarket, and the evidence of PW2 (the supermarket supervisor) that the appellant had made a report to the police, although it has now been admitted before me, the appellant did not make the report to the police but that a staff member did, on her behalf.

9.It is plain that the magistrate did take into account the evidence in favour of the appellant when arriving at his findings.  He said this :

“In reaching my findings I carefully considered the submission of Mr Lam, in particular as to the immediate reaction of the appellant; that the appellant waited at the exit alone providing her with ample opportunity to leave if she chose to do so and that the appellant had sufficient money to pay for the cream bath.”

10.The magistrate was not required to detail each piece of evidence in favour of the appellant in giving his reasons for drawing the inference of guilt against her.  He particularly mentioned the immediate reactions of the appellant and the separate fact she remained at the supermarket rather than leaving.  It is sufficient that the magistrate mentioned those matters in the way that he did.  By doing so he demonstrated plainly that he had considered the issue of the appellant’s reactions at the supermarket.

11.As I have said the fundamental issue before the magistrate was whether it was possible that the appellant had been “framed up” as she claimed.  In this regard the magistrate said in his Statement of Findings :

“… I rejected that the Dove cream bath was put in the appellant’s bag without her knowledge. … I found inherently improbable that someone surreptitiously put the Dove cream bath in the appellant’s handbag without her knowledge.”

12.The magistrate’s reference to the inherent improbability of someone being motivated to place the bottle in the appellant’s handbag in the first place is plain common sense.

13.The finding has even more force when it is remembered the magistrate accepted PW1’s evidence of the handbag of the appellant being carried on her left shoulder when she was at the checkout counter and that the appellant accessed her handbag for the purpose of making payment for the three cups of noodles.  That means she had access to her handbag’s contents before she attempted to leave the supermarket and it seems difficult to see how she would not have noticed the rather large bottle of bath soap she claimed someone had placed inside her relatively small handbag.

14.In my judgment, the magistrate was entitled to draw the inference that he did.  It was rationally based on the facts found by him.  He properly considered all of the evidence before him including that in favour of the appellant.  The magistrate correctly directed himself about the drawing of inferences, and he no doubt followed that direction.  An appellate court will only interfere with a trial court’s finding of fact when it concludes that finding is demonstrably unsafe.  That is far from the position in the present case.  The magistrate’s inferring the appellant herself put the bottle of bath soap in her handbag cannot be criticised.

15.Mr Lo complains also that the magistrate failed to properly take into account and give weight to the appellant’s previous good character.  With respect the simple answer to that is that he did so.

16.In his Statement of Findings he said :

“In reaching my verdict I directed myself as to the appellant’s good character both as to credibility and propensity in accordance with the decision in HKSAR v TANG Siu-man [1998] 1 HKLRD 350.  In this regard I took into account the appellant was an employee of a bank together with the letters and certificates issued by the bank.”

17.There is no merit in the appellant’s complaint in this regard.

18.Finally, Mr Lo complains that the magistrate made a global finding of guilt and did not make findings specific to each element of the offence of theft.  In my judgment he was not obliged to do so.  The extent to which a magistrate is obliged to make specific findings as to particular elements of an offence depends very much on what is in issue before him.

19.In the present case there was no issue that the appellant had the bath soap in her handbag and had attempted to leave the supermarket without paying for it.  The sole issue was whether she had placed the bottle in her bag or whether it was possible someone else, for some unknown reason, had done so, so that she was unaware of its presence as she went through the checkout counter.

20.That being the only issue before the magistrate, the only element of the offence the magistrate had to determine was the intention of the appellant.  As a professional jurist, a magistrate is not required to set out in chapter and verse form the elements of each criminal offence he adjudicates upon.  It is sufficient if he addresses his findings to those matters constituting the offence which are in issue.

21.It is plain in the present case the magistrate was aware that what fell to be determined by him was the intention of the appellant.  If the appellant intended to take the bottle of bath soap out of the supermarket without paying for it, then it followed the offence had been established.  Obviously if the appellant herself had placed the bottle of bath soap in her handbag then her intention in this regard was plain.

22.In his Statement of Findings the magistrate said this :

“Having carefully considered all the evidence I found I was satisfied so I was sure the only inference to draw was that the appellant acted dishonestly in that she put the Dove cream bath in her handbag and left the supermarket intending not to pay for the cream bath.”

In that finding the magistrate has adequately dealt with the elements of the offence in issue before him.

23.There is no merit in this final contention of Mr Lo and the appeal is dismissed.

Mr Isaac Tam, SGC of the Department of Justice, for HKSAR

Mr P.Y. Lo, instructed by Messrs Charles Yeung Clement Lam Liu & Yip, for the Appellant