HKSAR v. Fung Yu Hang

HCMA306/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.306 OF 2006

(On Appeal From KCCC 8124 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 11 August 2006

Date of Judgment : 11 August 2006

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J U D G M E N T

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1.The appellant was convicted after trial of one charge of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210, he was sentenced to a fine of $2,000.  He now appeals his conviction.

The prosecution case

2.Prosecution called two witnesses : a saleslady of the shop and a police officer.  The appellant was witnessed to carry a plastic bag of that shop into the shop and seen to have taken goods from the racks and put them into that plastic bag on four separate occasions. He then walked out of the shop without payment, causing the anti-theft alarm to go off.

3.The appellant was stopped by PW1 at about 5 to 6 feet away from the shop.  He was asked if he had anything which was not paid for.  PW1 observed that he looked frightened.  After he was taken back into the shop, he admitted stealing the items.  He asked for a chance and even offered to pay for the items.  The police was called, and PW2 subsequently arrived, arrested and cautioned the appellant.

Defence case

4.The appellant, a university student, elected to give evidence and called one witness.  He admitted to be carrying the plastic bag of the store into the store but he said that he picked up that bag at random from the dormitory.  He said at no time did he realize that it was a plastic bag from the same store.  He denied the intention to steal and claimed that he was just on his way to an end of a queue to pay for the items which he had picked up from the rack and put into the said plastic bag of the shop due to his running nose but the anti-theft alarm went off.  Unknown to him, that queue was one for wrapping instead of one for paying.  He only realized after the incident that the queue that he had queued was one for goods wrapping and he denied ever walking out of the store.

5.The appellant’s classmate testified to the effect that she left the plastic bag at the appellant’s room some time ago.

Grounds of appeal

6.The grounds can be summarized as follows :

(1) in finding that the appellant had the requisite dishonest intent, the magistrate failed to place weight on the fact that he was in possession of a $500 note at the time;

(2) the magistrate, in considering the good character of the appellant, failed to place no weight or not sufficient weight on the fact that he was pursuing a second degree and was awarded a scholarship and was on the Dean’s Honors List in 2005;

(3) the magistrate erred in rejecting the appellant had mistaken the wrapping queue for the paying queue when his evidence was supported by photographs and sketches that the gift wrapping counter was still within the perimeters of the store;

(4) the magistrate erred in equating the triggering of the anti-alarm system with the fact that the appellant had gone outside the shop as the same could also applied when one was in the vicinity of the alarm;

(5) therefore, it is submitted by counsel for the appellant, that the conviction was unsafe and unsatisfactory.

Respondent’s reply

My judgment

8.I shall dispose of Ground 1 shortly.  Counsel for the appellant submitted that no where either in the oral verdict or the Statement of Findings could it be seen that the magistrate had considered the fact that the appellant had with him $500 at the material time and thus had ability to pay for the items.  Time and again it has been said that a magistrate is under no obligation to set out his full thinking process.  It will suffice to demonstrate that he was alive to the issue of the case and salient points have been analyzed and evaluated in coming to the conclusion as he did.  In the present case with the evidence as it stood, in particular PW1’s evidence as accepted by the magistrate in relation to the orientation, the route taken by the appellant, where he went, what he did, and what he said upon being stopped, there was ample evidence to find that he had the dishonest intent, and that the $500 in his possession at the time was neither here nor there and certainly did not negate the findings of dishonest intent.  This ground fails.

9.Dealing with Ground 2, the magistrate said this in his Statement of Findings :

“He is a university student and a person of clear record, with lesser propensity to commit an offence and of better credibility.”

10.Counsel for the appellant complained that the magistrate failed to take account of the appellant’s higher achiever status.  It was also submitted trial counsel failed to adduce evidence of the appellant’s academic background and the many awards and scholarships.

11.I have specifically enquired with counsel for the appellant whether he is alleging trial counsel’s incompetence as a ground of appeal.  His answered was in the negative.

12.Counsel for the appellant also relied on the case of HKSAR v. Cheung Chi Ping, HCMA206/1998.  In that case the appellant, a third year student at the Hong Kong Polytechnic University, was charged with stealing a key holder.  The recorder allowed the appeal.

13.Facts of that case are not on all fours with the present case.  The appellant in that case tucked the key holder in his waistband which was highly visible.  In the present case, according to the evidence of PW1 which was accepted by the magistrate, the appellant had placed various items on four separate occasions into a plastic bag of the same store which he brought with him into the store.  In fact in Cheung Chi Ping’s case Recorder Kotewall said this :

“He was carrying a very large black shoulder bag at the time.  Far less awkward, as it seems to me, would it have been for him to have put the key holder into the bag if he had the dishonest intent attributed to him; far less obvious too, in my view, than tucking it under the waistband of his trousers, leaving most of it visible.”

It was this, coupled with the failure of the magistrate to take into account the previous good character of the appellant in assessing his credibility, that the appeal in Cheung’s case was allowed.

14.That case is of no assistance to advance this ground in the present appeal.

15.The magistrate has given himself the requisite good character direction.  There is no requirement for a more detailed warning for higher achievers or prominent members of the society.

16.I shall now move to Grounds 3 and 4 together.

17.The magistrate said that the appellant’s failure to find out at the time of his queuing he did nothing to find out what that queue was for, was “curious enough” and that the alarm was caused to trigger by what the appellant alleged was “surely hard to believe”.  It was submitted although the magistrate did not expressly use the words “inherently improbable” when he rejected the appellant’s evidence, that was precisely the reason for disbelieving the appellant.  Counsel for the appellant relied on the case of HKSAR v. Chan Wai, HCMA55/1999, where an appeal was allowed on the grounds that the magistrate wrongly rejected the appellant’s evidence as being “inherently improbable”.

18.Counsel unfortunately had taken that out of context.  In that case, the defence, unlike in the present case, was forgetfulness and a muddled mind on the part of the appellant.  Woo J, as he then was, said this in the judgment :

“Everything said by the Magistrate appears to be correct except where he used the term ‘inherently improbable’, which gives rise to concern… I do not regard the story told by the Appellant being inherently improbable.  The crux was that the Appellant forgot to pay although she did not forget to pay for the trolley, the bread and the ice-cream.”

19.Later on in that judgment, Woo J remarked that :

“In every case when a person has been found bringing out items from a supermarket without having paid, the defence, if there is one at all, is almost always that he forgets to pay.  That cannot be inherently improbable and each case must be considered carefully by the Court if it is satisfied beyond a reasonable doubt that there is the necessary mens rea of theft.”

20.In the present case, unlike the case of Chan Wai where the defence of forgetfulness was pleaded, what the appellant said was that he had every intention to pay but had mistakenly chosen the wrong queue and the anti-theft alarm went off whilst he was still inside the store.  He said it was only after the incident that he knew the queue that he joined was one for wrapping instead of for paying.  The appellant also said that the anti-theft alarm which was obvious to anyone patronizing the store, did not seem to be apparent to him.  The magistrate was entitled to conclude that, even giving him the benefit of doubt of feeling unwell, what he said was unreasonable and against common sense and rejected it.

21.Counsel for the appellant was not able to advance any grounds to attack the drawing of inference of dishonesty by the magistrate.  That inference of guilt was one that was perfectly and properly drawn on the facts of this case.  The appellant was seen carrying a bag of that store into the said store and putting goods one after another inside that bag.  He admitted stealing after he was stopped by PW1.  His pretext of a running nose was nothing more than a pretence of falsehood.

22.In the circumstance, the magistrate was entitled to infer that there was an appropriation with a dishonest intent.  There was ample evidence to convict.

23.The appeal is dismissed.  I affirm the conviction.

Ms Olivia Tsang, GC of the Department of Justice, for HKSAR

Mr Jacky K.L. Ip, instructed by Messrs B. Mak & Co., for the Appellant