HKSAR v. Tsang Chin Yi, Agnes

HCMA1234/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1234 OF 2005

(ON APPEAL FROM ESCC 2081 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 22 January 2008

Date of Judgment : 22 January 2008

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J U D G M E N T

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1.The appellant appeals her conviction by Mr Wyeth at Eastern Magistracy of the theft of two shoes from Marks and Spencers in Queensway. 

2.The facts of the case as found by the magistrate were straightforward.  The appellant was seen by PW1, a store security officer, putting two shoes into her rucksack after taking them from a display counter in the stores shoes department.  The appellant then left the store and was intercepted by PW1.  She said nothing when PW1 told her she possessed shoes she had not paid for.  The shoes were subsequently retrieved from the appellant’s rucksack.  They were two black shoes, but of different styles and sizes.  Both were for right feet. 

Grounds of Appeal

1^st ground

3.By her 1^st ground of appeal advanced on her behalf by Mr Davis she complains that the magistrate found her evidence to be “inherently improbable” and “fanciful” in respect of her claim that she had taken the two shoes from the store display rack and absentmindedly put them in her rucksack while she was talking on her mobile phone, and then after the brief phone call, leaving the store with her friends forgetting she had the shoes in her rucksack. 

4.In my view, given that was her evidence, the magistrate was right to find it implausible and even fanciful and reject it in the terms he did.  In doing so he noted she was unable in any real sense to explain how the shoes had gotten into her rucksack which she had zipped up before leaving the store.  Within the context of his oral reasons for verdict, in which he arrived at this finding, it is quite plain that his description of the appellant’s evidence was based on the circumstances of her claim to have absentmindedly placed two relatively large objects such as women’s shoes into her quite small rucksack, and then going on to absentmindedly zip it up.  There was no need for him to give any reasons further than that.  There is nothing in the 1^st ground of appeal. 

2^nd ground

5.By her 2^nd ground the appellant complains that the magistrate failed to take into account that the shoes she took, though similar, were of different sizes and styles and that both were for a right foot.  In his statement of findings the magistrate said :

“	3.	This was a straight-forward case of shop theft.  However it had one unusual feature in that the subject stolen property was two shoes, each for the right foot and each a different size.
	4.	This feature was the basis of the main thrust of the defence.  ‘Why would anyone steal a non-pair of shoes?’, it was said.
	5.	I was well aware of this issue throughout.
	6.	PW1, the store’s security guard, was a most impressive witness.  I had no doubt her evidence was honest and reliable.  I believed her.  She said the shoes on the display start out being displayed in pairs.  In the course of the day the shoes are moved about by customers and after a short time are no longer all arrayed in pairs but have become ‘jumbled up’.
	7.	PW1 gave the clearest evidence of the appellant picking up 2 ‘black high-heeled shoes’ together in the one ‘picking-up’ action.  They were put in the appellant’s bag which was zipped up.  Shortly after, the appellant left the store and walked to the other side of Pacific Place where she was intercepted by PW1 at which time she had nothing to say in response to PW1’s accusation that she was possessed of shoes which had not been paid for.
	8.	I do not know why a non-pair of shoes was stolen.  I do know that they were stolen.  The assumption is that in acting stealthily, the appellant didn’t notice she had grabbed a non-pair in her one hand and thrust them into her bag.  Whether that obvious assumption be correct or not, I found she stole the 2 shoes which turned out to be a non-pair.”

6.In my judgment the magistrate was well aware of this issue and properly resolved it on the basis of the evidence of PW1, who he found to be a credible witness, to the effect that shoes could become jumbled up on the display shelf of the store during the course of a day by customers who handled them and that the appellant picked them up in one motion.  It may be that the magistrate’s recitation of the precise terms of PW1’s evidence on this occasion was not exact, but in my view the magistrate has effectively given the gist of PW1’s evidence in that regard.  As the magistrate said, it may be that the appellant did not notice that the shoes were different or there may have been other explanations for her taking two non-matching shoes.  But it is quite plain that the magistrate was aware of the issue of the shoes not being a matching pair.  Whether or not the evidence went far enough to answer that particular question as to why the appellant took such shoes, the magistrate was entitled to make the finding he did once he rejected the evidence of the appellant and accepted that of PW1.  The real issue before the magistrate was the credibility of these two witnesses.  The oddity of the non-pair of shoes was, though relevant to that issue, not solely determinative of it.  This ground cannot succeed. 

3^rd ground

7.Ground 3 suggests the magistrate misunderstood the evidence by referring in his oral reasons for verdict to the appellant being said by PW1 immediately before her taking of the shoes to have been “looking about as though looking to see if she was being observed”.  In fact PW1’s evidence was as follows :

“	Q.	What did she do at that time?
	A.	I saw that she was looking around.  She was looking around.
		…
	Q.	And that was the first time you saw the defendant, right?
	A.	Right, I saw her and I started to pay attention to her look.
	Q.	When you saw her did you take a look of your watch and confirm the time?
	A.	It’s our habit to look at the watch once we felt that someone was suspicious.
		…
	Q.	So during that four minutes the defendant was wandering in the footwear department, trying to select shoes, right?
	A.	She did not select shoes.
	Q.	So what was she doing?
	A.	As far as the look in her eyes was concerned, she was looking around.
	Q.	So are you saying that during that four minutes, instead of looking around the shoes, she was looking around to see whether there was any people?
	A.	She did look casually at the shoes on the shoe shelves, but she did not pick up pair by pair.”

8.It is quite true that PW1 did not give evidence in the express terms stated by the magistrate.  But she did say that the appellant was suspicious and was looking around.  The magistrate’s recitation of the evidence in this regard was somewhat less than perfect, but in my view contributed to no unfairness to the appellant.  Had the magistrate correctly remembered the precise terms of PW1’s evidence his findings no doubt would have been the same.  I am satisfied that the correctness of his findings remain untouched and this ground also fails.  

4^th ground

9.The 4^th ground is a general assertion that the conviction is unsafe and unsatisfactory.  No specific argument was directed to that ground.  It stands or falls with the other grounds. 

5^th ground

10.The next substantive ground is the 5^th ground to the effect that the appellant’s trial counsel omitted to put before the court evidence that at the time of the offence she was depressed as the result of the relatively recent death of her grandmother and her own loss of employment. 

11.By way of an affirmation dated 31 July 2006, accepted by me as evidence for the purposes of this appeal, she states that she made clear to her solicitor and trial counsel that she had absentmindedly placed the two shoes in her rucksack partly as a result of her confused mental state brought about by her depression. 

12.There is no doubt that at some stage in her instructions to her solicitor she had mentioned to him that she was depressed at the time of the offence and that this was a factor in her absentmindedly taking the shoes.  A letter to this effect was sent to the Department of Justice by her solicitor on 3 September 2005 in an unsuccessful attempt to have the matter dealt with in a matter other than by way of trial. 

13.I have seen affirmations also from her trial counsel and solicitor replying to the appellant’s assertions, and have also seen a copy of the written notes of instructions obtained from her for the purposes of her trial. 

14.Both Mr Shaw, the appellant’s counsel, and Mr Cheung, her solicitor, in their affirmations state that the appellant eventually gave explicit instructions that her mental state was not at the time of the offence affected by any psychological factors.  Both say that before those instructions were given to them it had been explained to the appellant that it would be desirable to obtain medical evidence of her mental state if she were to rely on her depression as part of her defence.  It was following that advice that she instructed them in terms that her mental state was not in issue and that her taking of the shoes was due to her distraction during a telephone call. 

15.It is noteworthy in the written instructions, which I accept were confirmed by the appellant and which dealt in detail with the events surrounding the offence, that the appellant made no mention of being depressed or confused as the result of the death of her grandmother or for any other reason.  Perhaps more importantly is that during the cross-examination of the appellant she was pressed by the prosecutor, and on occasion asked also by the court, to offer an explanation as to why she put the shoes in her rucksack.  She had ample opportunity to state quite simply that she was confused also as a result of her grandmother’s death a month earlier or by the loss of her employment or both, but did not do so and instead she focused her answers on explaining that she was distracted by a mobile telephone conversation she had with a friend at that time. 

16.I do not think that there is any merit in the appellant’s assertion that her counsel and solicitor failed to follow her instructions in this regard.  In my judgment she is simply advancing her version of this matter so as to vitiate her conviction.  I am satisfied Mr Shaw and Mr Cheung properly performed their duties in representing the appellant and that she has nothing whatsoever to complain of in that regard.  I accept their evidence by way of affirmation and I am satisfied their instructions ruled out the appellant having been psychologically disturbed at the time of the offence.  That being so this complaint cannot even begin to get off the ground.  The appellant had a perfectly fair trial conducted in accordance with her final instructions which seem to me to have been based on sensible advice provided to her. 

17.This ground also fails and the appeal is dismissed. 

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

Mr Oliver Davies,  instructed by Messrs Huen & Partners, for the Appellant