HKSAR v. Lai Wai Ching

HCMA959/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.959 OF 2005

(ON APPEAL FROM STCC 7319 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 20 April 2006

Date of Judgment : 20 April 2006

Date of Handing down Reasons for Judgment : 2 May 2006

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REASONS   FOR   JUDGMENT

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1.The appellant was convicted after trial of two charges of ‘Theft’ contrary to section 9 of the Theft Ordinance (Cap.528).  He was sentenced to two concurrent terms of three months’ imprisonment.  He appeals against his convictions.

2.Quoting from the magistrate’s Statement of Findings, this, as an outline, is what the prosecution alleged :

“… PW1 is the salesman at Royal Sporting House … He saw a male … take a TYR towel [subject matter of Charge 1] from a goods rack and put it into a blue plastic bag he held.  He alerted his colleague, PW2, who was also in the store at the time.  PW1 pointed out this male to PW2.  PW1 described the man in court but said he could not recognize him now.

PW2 had heard the anti-theft alarm which was installed at or near the entrance sound.  He saw a male who he had been alerted to by PW1 previously.  The male did not make any payment for anything.  PW2 followed him out of the store.  He had never lost sight of him.  PW2 had pointed this same man out to police officers (including PW4).  PW2 had sight of this male throughout until he was pointed out to PW4.

PW4 had in fact heard the alarm from the store sound.  He had seen the appellant walk out of the shop.  He saw the appellant put the towel (he had earlier taken from the shop) and put it into a blue bag he was carrying.  He followed the appellant, who had been pointed out to the police by PW2.  The appellant was stopped, and the towel taken from PW1’s shop was found in the blue bag he was carrying.  Also found were various magazines and a small fan which it was admitted via section 65C was the property of the Commercial Press Shop and had not been paid for [subject matters of Charge 2].  PW4 had never lost sight of the appellant throughout.”

3.Turning to the defence, this is how the magistrate summarized their case :

“… The appellant elected to give evidence.  He said he was in the New Town Plaza near the escalator when two police officers had stopped him.  He had dropped a bag onto the ground which subsequently he found contained three magazines.  He said he had earlier picked up those in a toilet and had put them in his own bag intending to give them to a policeman when he saw one.

In cross-examination, the appellant said he had gone to New Town Plaza with empty plastic bags originally because he had wanted to go to Shenzhen.  He denied he had been to Commercial Press at the earlier time.  When shown his admitted caution statement where he said he did earlier go to Commercial Press, the appellant said he had forgotten now what he had said at Answer 12.

The appellant further denied he had gone to Royal Sporting House but said he had passed outside the entrance.  He said he had earlier picked up the three magazines in the toilet, and from 7 pm to 9 pm had not seen any police officers to hand it to.  He was confused when he had been asked to hand over all the items to PW4.  The appellant denied he had stolen anything.  Here the appellant’s evidence concluded and he called no witness.”

4.In the end, the magistrate found PW1 to PW4 all “honest and believable” witnesses.  He said there were discrepancies between their evidence as to the exact appearance and clothing of the man they saw but such discrepancies are “minor and would not cause me to disbelieve them”.  He said “there is no break in the continuity of the man they saw.  It was one and the same man.  It was the appellant”.  He said he had warned himself of “all the inherent dangers of identification evidence”.

5.I should add that it was an admitted fact that when the police searched the appellant, the TYR towel was in his blue plastic bag.  It was admitted that the towel was the property of Royal Sporting House and that it had not been paid for.

6.The same goes for the magazines and the fan.  It was admitted that they were the property of Commercial Press and no payment had been made for them.  “The only inference from the whole of the evidence as accepted by me is that they too had been taken by the appellant, and he had the intention of permanently depriving the owner of them,” said the magistrate.

7.Conversely, the magistrate remarked that :

“... [the appellant] did not impress me in the witness box.  … I do not accept that the items were found by him in a toilet at Seiyu store and that he was busily trying to hand them over to security guards or the police.  As soon as police apprehended him, he did not even attempt to hand the goods he said he found over to them.  Further the appellant had even denied he had ever been to Commercial Press in the witness box, yet he said that he had in fact been there in his admitted caution statement.  I am sure that the appellant is trying to tailor his evidence.  As I said, I reject what he has said.”

8.In a word, there is nothing in the magistrate’s dealing with this case that causes me concern. 

9.As regards today’s proceedings, the appellant claims that he had never personally agreed to any admitted facts, and that the prosecution witnesses were lying.  He said he was not charged until two months after the incident, that is, after he had complained to CAPO.

10.In the end, he withdraws the allegation that his lawyer was acting without instructions.  The rest of his complaints I simply find to be without merit.

11.The appeal is dismissed.

Ms Fung Mei Ki, Mickey, GC of Department of Justice, for HKSAR

The Appellant, in person