HKSAR v. Liu Kam Chi

HCMA1222/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1222 OF 2005

(ON APPEAL FROM TMCC 3134 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 8 February 2006

Date of Judgment : 8 February 2006

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J U D G M E N T

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1.This is an appeal by the appellant against her conviction by Mr T.S. Jenkins sitting at Tuen Mun Magistrates’ Court on 2 November 2005 of the theft of a shaver from a branch of Park’N Shop in Tuen Mun.  Although she lodged a notice of appeal against the sentence of a fine of $1,000 imposed upon her, she does not now make any complaint about it.

2.The appellant appeals against conviction on the ground essentially that the Magistrate was wrong to find her guilty and that she was unwell on the date of the trial.

3.The appellant was represented by a duty lawyer.  If she had been feeling unwell enough to be tried one would have expected her to tell her lawyer but she admitted that she did not.  Indeed, it is apparent from the written grounds of opposition to the admissibility of her cautioned statement that she was capable of giving detailed instructions to him.  However, she claims that she had told the Magistrate that she was feeling unwell but had not asked for the trial to be adjourned.  If she had been unfit to stand trial that day, I have no doubt she would have discussed it with her lawyer and made an application for the trial to be adjourned.  She did not.  I do not find any substance in the ground of appeal.

4.It was admitted that the appellant, a woman of previous good character, had left the branch of Park’N shop on question with what is described as a “packet of Gillette razor” valued at $34.90 in a red and white plastic bag carried by her.  As she did so she triggered the anti-theft alarm.

5.When she was approached by a member of the staff she had apologized.

6.It was not disputed that when a police officer (PC 4601) subsequently attended the scene and arrested and cautioned her, the appellant had said that she had forgotten to pay for the razor because she had a momentary headache.

7.The principal difference between what the police officer and the appellant alleged had occurred related to the events that transpired back at Tuen Mun Police Station when the officer sought to make a post-record of what had happened at the scene, including the appellant’s words after caution.  The admissibility of the notebook entry was the subject of a voir dire adopting the alternative procedure during which the officer (PC 4601) and the appellant gave evidence.

8.The officer’s evidence was that after he had made a post record of what had occurred at the scene and read it to the appellant and asked her if she wanted to make any alteration she had then spontaneously said to him that she had stolen the razor out of the momentary greed and asked him to give her a chance.  The officer had recorded these words and had re-read to her in the presence of a WPC what he had read to her earlier including that alleged admission.  The appellant had then put her fingerprint on the notebook to signify she agreed with what the officer had read to her.

9.On the voir dire, the appellant claimed that she had not had a chance to take a rest and had not understood what the officer had said to her.  She also claimed that the officer put words into her mouth and then got her to sign and then threatened her that if she did not admit the offence, the court would impose a heavy sentence.

10.The learned Magistrate accepted the officer’s evidence and admitted the notebook entry into evidence.

11.The appellant gave evidence on the general issue saying that she had been suffering from persistent headaches and was unwell at the time of the incident.  This had caused her to forget to pay.

12.The learned Magistrate disbelieved the appellant’s version.  In particular he did not believe the explanation for putting the razor into the red and white bag.  He believed that the appellant had uttered the words about stealing the razor out of momentary greed.

13.He concluded that the prosecution had established all the elements of theft.

14.The learned Magistrate saw and heard the witnesses including the appellant give evidence.  He bore in mind that she was of previous good character.  I find no reason to interfere with his finding.  I dismiss the appeal against conviction.

15.The fine of $1,000 imposed by the Magistrate was perfectly proper in this circumstance.  I dismiss the appeal against sentence.

Mr H. Melwaney, SGC, instructed by Director of Public Prosecution, for the Respondent

The Appellant, in person