HKSAR v. Choi Sui Ling

[English Translation – 英譯本]

HCMA 614/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 614 OF 2006

(ON APPEAL FROM KTCC 818 OF 2006)

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BETWEEN

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Before: Hon Nguyen J in Court

Date of Hearing: 25 July 2006

Date of Judgment: 23 August 2006

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JUDGMENT

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1.On 26 May 2006, the appellant Choi Sui Ling was convicted of theft after trial at the Kwun Tong Magistracy before Deputy Magistrate Thomas Chan and was fined $2,000.

2.The appellant now appeals against conviction.

3.The particulars of charge were that, on 2 January 2006, at Park’N Shop at Metro City Plaza Phase II, Tseung Kwan O, Kowloon, Hong Kong, the appellant stole 10 types of goods, namely four packets of lemon tea, three packets of fish balls, one packet of straw mushroom, two packets of squids, one packet of golden mushroom and two bottles of mousse. The total value of these goods, which were properties of Park’N Shop, was HK$231.30.

Prosecution’s case

4.At around 4 to 5 p.m. on 2 January 2006, PW1 (WAN Nam-to, a uniformed security guard at the said Park’N Shop) saw the appellant queuing in front of the cashier counter to make payment. She was pushing a Park’N Shop trolley fully loaded with goods. About 20 minutes later, PW1 saw the appellant at the fish ball counter selecting fish balls. PW1 saw her taking a pack of fish balls while she was still pushing the fully-loaded trolley. This aroused PW1’s suspicion and he immediately asked PW2 (the shop manager) to go to the scene. The manager arrived a few seconds later and, together with PW1, observed the appellant’s conduct. PW2 saw her select fish balls at the fish ball counter, put the selected fish balls in a plastic bag and hand it to the salesperson who weighed the fish balls, attached a price sticker to the plastic bag and then returned the bag to the appellant. PW1 saw the appellant push the trolley away from the fish ball counter and then remove the price sticker from the bag of fish balls that she was holding. She then put the bag of fish balls into the trolley and left Park’N Shop immediately without paying for that bag. PW1 and PW2 stopped the appellant outside the shop. PW2 pointed out to the appellant that she had not paid for some of the goods. The appellant said that she had made payment and produced a receipt. She was taken back into the shop. The manager carefully checked the goods in the trolley against the receipt produced by the appellant and found that she had not paid for 10 items of goods including the bag of fish balls.   

5.The prosecution did not adduce evidence in respect of the other nine items of unpaid goods. However, it was never disputed at trial that the 10 items of goods were found in the trolley and had not been paid for.

6.The appellant elected not to give evidence. Nor did she call any witness.

7.Counsel for the appellant has put forward the following grounds of appeal:

(1)    The magistrate had wrongly accepted PW2’s evidence.

(2)    The magistrate had failed to resolve an important inconsistency.

(3)    The magistrate had not properly dealt with the evidence of the two prosecution witnesses. He might also have wrongly treated their evidence as corroborative of each other or used PW2’s evidence as corroboration of PW1’s evidence.

(4)    The magistrate had failed to consider two inherent impossibilities/improbabilities in the prosecution’s case.

(5)    The magistrate had failed to properly deal with the appellant’s mens rea, that is to say, the necessary mens rea had not been properly established/the magistrate had acted on a wrong footing.

(6)    The magistrate had wrongly assessed some of the evidence or had given undue weight to the evidence.

(7)    The conviction is therefore unsafe.

Grounds of appeal (1), (2) & (3)

8.The crux of the first three grounds of appeal lies in a submission made by counsel for the appellant, namely that the magistrate should not have considered and accepted in its entirety the evidence of PW1 and PW2 or used the evidence of each of them as corroboration of the other’s evidence.

9.The magistrate noted in his Statement of Findings that there were inconsistencies between PW1’s evidence and PW2’s evidence, but concluded that such inconsistencies did not affect the credibility of either witness. This has been explained in paragraphs 9 and 10 of the Statement of Findings.

10.The magistrate had carefully considered the evidence of the two prosecution witnesses and their reactions and demeanour when they gave evidence. He found them to be honest and reliable witnesses and accepted their evidence. Only in exceptional circumstances will the appellate court reverse findings of fact made by a magistrate. Not having the opportunity to observe and listen to witnesses testifying at trial, the appellate court should not interfere with findings of fact made by the trial court unless there is lurking doubt about whether the appellant is guilty.

11.As to whether the magistrate made any finding in paragraphs 5 and 6 of his Statement of Findings, I agree with the reply made by counsel for the respondent in paragraph 1 of her skeleton submissions:

The respondent fails to see the reason or logic behind the appellant’s allegation that the magistrate had erred. The magistrate only set out in paragraphs 5 and 6 the evidence given by PW2 during examination-in-chief and cross-examination. He did not make any finding in either paragraph. 

Ground of appeal (5)

12.Counsel for the appellant submitted that the magistrate had wrongly ruled out the possibility that the appellant had forgotten to pay. I find it hard to believe that after taking as many as 10 items of goods from various locations in the supermarket one would forget to pay for them. The large quantity of the stolen goods simply does not justify such a claim. 

13.As to the motive of the appellant, I am of the view that the magistrate had already taken into account the appellant’s clear record (paragraph 8 of the Statement of Findings).

14.Counsel for the appellant complained that the magistrate only made mention of propensity but not credibility when he considered the question of good character (paragraph 8 of the Statement of Findings). The appellant was of course entitled not to give evidence or call witnesses. However, it is said that the appellant had given a series of different answers upon being questioned by the staff of the supermarket. This is something which the magistrate should have taken into account when he considered the fact that the appellant had a clear record.

15.The appellant’s responses were not completely consistent. Her answer to the first question was “I have paid already”, and then, “I have paid already. I have the receipt to prove it.” When PW2 ascertained that 10 items of goods had not been paid for, the appellant said (about those 10 items), “I forgot to pay for these”, but then at another stage she said, “I do not know” and “The cashier forgot to charge for these goods”. It would appear that all along the appellant’s main response was that she had forgotten to pay for those unpaid items. This, as the magistrate must in my view have been fully aware, was precisely the appellant’s answer to the charge.

16.In R v Fok Tin-yau [1995] 2 HKC 450, Power V-P pointed out that:

Where a judge is sitting alone and evidence of good character has been given, this court will, even if he makes no mention of it, unless there be some express or implied indication otherwise, act upon the basis that he was aware of the character evidence and that he gave it the weight which he thought it deserved.

In the present case, the magistrate had indeed made mention of the appellant’s clear record.

Grounds of appeal (4), (5) and (6)

17.The prosecution had invited the magistrate to draw inferences on the following questions: did the appellant put those 10 items of goods into the trolley only after she had paid for the other goods, and was it her intention not to pay for those 10 items when she left the supermarket?

18.As is pointed out in Bruce and McCoy, Criminal Evidence in Hong Kong:

There are circumstances in which a court may more readily draw an inference adverse to the accused from evidence in the absence of testimony from the accused.

The learned editors cited R v Lo Sui-wing & Another CACC 509/1989, in which Macdougall JA said:

Where an inference of guilt may properly be drawn from a set of facts, a jury or a judge sitting without a jury, is entitled in the absence of a credible explanation leading to a different conclusion, to convict the accused on the basis of that inference.

In R v Cunningham, Fuad V-P held that an accused person should not be surprised if an inference which can legitimately be drawn is more readily drawn when the accused elects not to give evidence.

In R v Chong Kin-cheong CACC 196/1995, it was held that:

A judge or jury faced with evidence from the prosecution which is unanswered by testimony from the accused is not required to imagine possible defences of which there is no evidence, but, rather, is required to act upon the evidence available.

In R v Tan Siew-gim [1995] 1 HKLR 299, it was held that:

Where the inference of guilt is available to the tribunal of facts and no explanation is given, it is not open to complain on appeal that another inference was available to be drawn, particularly when the facts cry out for an explanation.

19.Hence, I see nothing improper for the magistrate to infer, in the absence of any explanation from the appellant at trial, that she had dishonestly taken away the goods in question without intending to pay for them but with the intention of permanently depriving Park’N Shop of the goods.

Ground of Appeal (7)

20.Having carefully considered the submission of counsel for the appellant on the magistrate’s verdict, I am satisfied that the magistrate was correct in finding that PW1 and PW2 were honest and reliable witnesses. I am also satisfied that the magistrate had correctly and properly drawn an inference adverse to the appellant in the absence of evidence from her. For these reasons, I do not find the appellant’s conviction unsafe or unsatisfactory. The appeal is dismissed accordingly.

Ms Olivia Tsang, Government Counsel, for the HKSAR

Mr Albert Poon, instructed by Henry Fok & Co, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor