HKSAR v. Kwong, Siu-keung

HCMA1250/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1250/2005

(ON APPEAL FROM KTCC 4029 of 2005)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  3 February 2006

Date of Judgment:  3 February 2006

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J U D G M E N T

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1.The appellant appeals his conviction for theft.  The magistrate having found that he stole two boxes of Visa Hair Formula from Mannings store. 

2.It was common ground that he was stopped outside of Mannings with the two boxes inside his canvas bag and that he had not paid for them.

3.His defence, which he revealed straightaway, was that he had forgotten to pay and the two boxes had got into his zipped up canvas bag in innocent circumstances.

4.The defendant, a man of good character, elected to give evidence.  It is perhaps easiest if I summarise his defence by quoting the magistrate’s summary of it which was that the appellant testified:

“(i)	that he was out shopping with his wife when they entered Mannings together.
(ii)	At the time the appellant was holding four plastic bags which contained goods he had bought from other shops.  After entering Mannings the appellant did his own shopping whilst his wife went to buy her own things.  The appellant explained that he forgot to pay for the two boxes because when queuing up to pay for the two boxes his wife approached him and gave him a bunch of things.  The appellant did not have a free hand and therefore placed the two boxes on the top of his canvas bag.  The appellant said he paid for the items given to him by his wife and at that time really did not remember to pay for the two boxes.
(iii)	In cross-examination the appellant said the two boxes were for his use and that he knew the cost was around $800.  The appellant said he was not surprised when he only had to pay $300 because he had completely forgotten about the two boxes.
(iv)	In answer to the court the appellant said that the two boxes were the only items he was going to pay for at that time.  The appellant’s wife then went to exchange the receipt for gifts given my Mannings whilst the appellant went to the toilet.  After returning from the toilet the appellant and his wife decided to buy some more items from Mannings so as to obtain more gifts.  The appellant then went back into Mannings but feeling rather impatient left and walked around other shops for one to two minutes before returning to Mannings again.  The appellant entered a third time and went to look for his wife.  Shortly after the appellant’s wife made payment and after exchanging the receipt for further gifts they left, when the appellant was stopped by PW1.
(v)	The appellant explained that when he was seen on the CCTV bending down, he was looking at small items to see if there was something suitable for use.  The appellant testified that at this time he did not pick up anything.  The appellant, shortly after bending down, is seen on the CCTV to be carrying something in his right hand.  The appellant testified that he was holding facial cream purchased earlier in Mannings for which he had a receipt.  The appellant explained he took the facial cream out of the bag to have a clearer look whether his wife had purchased day or night cream.
(vi)	The appellant went on to further explain that he placed the cream back in the Mannings plastic bag and not in his canvas bag.  At this time the appellant noticed his canvas bag was unzipped so he zipped up the bag.  In cross-examination the appellant said when he zipped up his bag he did not notice the two boxes because they had dropped to the bottom of his bag.”

5.The store detective, who stopped the appellant outside the store and said he had items in his bag for which he had not paid, claimed to have seen the appellant actually place the two boxes in the canvas bag and zip it up. 

6.The magistrate viewed with care the CCTV evidence in this regard and he was not satisfied that that witness could actually have seen that take place, therefore he did not rely upon it.  He only acted upon her evidence where he found it was supported by what could be seen on the CCTV.  

7.The magistrate rejected the appellant’s account.  He did so  on the basis of what he described as some inherent improbabilities and based on what he saw on the CCTV. 

8.Examining the explanation advanced in evidence by the appellant the magistrate found it improbable that someone would have forgotten the presence of the relatively expensive boxes of hair formula in the period between putting them on top of his bag and paying which was less than one minute.  I agree with that assessment.  If the matter had stood there both the magistrate, I imagine, and I would have given the appellant the benefit of the doubt because memory can play tricks upon one.  The point taken together with what is seen on the CCTV took on much more force because on the CCTV one can see the appellant queuing up and his wife arriving.  His case, as appears in the summary of the defence evidence that I have read out in full, was that it was then that he placed the two boxes of hair formula on top of his canvas bag because he did not have a free hand.  He did have a free hand because you can see it on the CCTV.  Not only that, at this stage his canvas bag was slung across his body but it was to his rear so that the CCTV camera picked it up and it does not show at this time that he placed anything on the top of it or in it.  That led the magistrate to reject the explanation.

9.I explained this to the appellant here today and his explanation, (and I did not require it to be sworn he advanced it in argument), was that whilst that had been his case below, in fact, he had transferred the two boxes to his canvas bag at an earlier stage because he realised his wife was coming with things and he would have to free his hands up. 

10.My assessment of the appellant, having heard him argue his case very well today, is that he is no fool and that significant change that I have just outlined, in my judgment, clearly demonstrates that he is changing his ground to fit the evidence.  I agree with the magistrate that the material is such that the defence could not live with it.  I am conscious that I could have invited the appellant today to give further evidence and that I could have received it but the circumstances are such that I would not give what was to be advanced credence for the reason I have given. 

11.Not only that, it is the case that the evidence against the appellant is stronger than that which I have already indicated because the magistrate found, and I agree with his analysis, that in effect you can see him later on the CCTV actually putting the two items in question into his canvas bag.  The CCTV clearly shows the appellant walking along an aisle towards a camera.  He has something in his hand which is clearly the right dimensions to be the two boxes in question.  His case was that he was just checking whether this was night or day cream which he had legitimately purchased and that he needed to walk around the store to go back to the place where he had purchased it from to make a comparison there. 

12.What the CCTV tape demonstrated to me, and did so with a considerable impact, was that the actions of the appellant were designed to hide what he was doing.  He has used one hand with the plastic bags to bring it around to cover the canvas bag that is at his front waist and to hide that bag from the eyes of anyone minded to watch him, or the lens of the CCTV camera, which he appreciated existed in the store.  As he walked along, without pausing, without looking down to see what he was doing, and behind the cover of the plastic bag, you can see the hand go down to where the canvas bag is.  As he walks on, one can then see him zipping up that bag.  That to me forcefully demonstrated that he was putting something exactly the size of the allegedly stolen items in question into the bag, behind the cover of the plastic bags at the time when he was doing so, in a way designed to stop him being observed.

13.I have not undertaken the exercise of trying to work out whether the store detective would have been able to see the hand going into the bag, I shall accept the magistrate’s analysis of that, but it was the case that she was able to go outside and rightly and correctly make the allegation that there were unpaid for goods in the canvas bag.  Coincidence is the enemy of many a false defence and if the appellant is correct it was a complete coincidence, that he just happened to be making this rather curious transfer, he says, into the plastic bag of something he had already bought, at a time that he just happened to notice the canvas bag was unzipped, and at a time when it just happened that there were unpaid for goods in that canvas bag, and the circumstances had been such that the store detective could make that accurate accusation against him.

14.I have not forgotten the good character of the appellant; the fact that he made an immediate denial; that he knew there were CCTV cameras in the store; that he wanted the CCTV material put in evidence; that he had enough money on him to pay for the goods and indeed the points that his counsel was able to make on his behalf below.  I have borne those matters in mind but the weight of the material I have described is such that it leaves me in no doubt of the appellant’s guilt and accordingly the appeal is dismissed.

Ms Kathie Cheung, Government Counsel of the Department of Justice, for the Respondent

Appellant, Kwong Siu-keung (鄺兆強), in person