HKSAR v. Ngai King Ying

HCMA 684/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 684 OF 2009

(ON APPEAL FROM ESCC 3036 OF 2009)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 9 December 2009

Date of Judgment: 9 December 2009

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J U D G M E N T

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1.The Appellant was convicted after trial in the Magistrates’ Court on a charge of theft and sentenced to six weeks’ imprisonment. She now appeals against conviction and sentence.

2.Four perfected grounds of appeal against conviction have been filed. Ground 1 is that the conviction was against the weight of the evidence. In my view, it was not. There was ample evidence on which to convict. Ground 1 fails.

3.Ground 2 reads:

“The Magistrate effectively directed himself to consider whether PW1 had a motive for lying, instead of emphasising that the real issue was whether he was telling the truth.”

PW1 was the security officer of the supermarket from which the Appellant was convicted of stealing.  The paragraph in the Magistrate’s Statement of Findings in which he referred to the absence of any motive for lying is para. 4 which reads:

“I bear in mind the Prosecution has the burden of proof and the requisite standard.  Although PW1 several times had not grasped the focus of questions thereby needing recanvassing before he could clarify his evidence, I find both prosecution witnesses honest and reliable.  There is no motive for anyone to tell lies in order to frame up the Deft.”

I am satisfied that the Magistrate had directed his mind to whether PW1 was honest and reliable.  Ground 2 fails.

4.Ground 3 reads:

“The Magistrate did or did appear, to have misunderstood the evidence as to the layout & operation of the Citysuper shop.  Interalia the evidence in respect of: the cash registers (where the queues formed, from where they could be seen); which cash registers were operating at the material time; and then base his finding of guilt in part or in whole on this misinterpretation.”

I see no basis on which to attribute any such misunderstanding to the Magistrate.  A floor plan and photographs were produced, and the evidence was given with reference to them.  Ground 3 fails.

5.Ground 4 reads:

“Lurking doubt.  Given that:

(i)  the Appellant changed her medication from April 2009 onward

(ii)  the Appellant had, immediately prior to the offence resumed taking her sleeping pills in conjunction with the new pharmaceutical regime, and

(iii)  the store layout was deliberately confusing

must in all the circumstances beg the rhetorical subjective question: ‘should the matter stand as it is?’”

I do not feel any lurking doubt as to the correctness of this conviction.  Ground 4 fails.

6.All the grounds of appeal against conviction having failed, the appeal against conviction is dismissed.

7.As to the appeal against sentence, I send for a probation report on the Appellant, doing so in exercise of my power under section 119(1)(d) of the Magistrates Ordinance, Cap. 227, to “exercise any power which the magistrate might have exercised”. I adjourn the hearing of the appeal against sentence pending receipt of such report. I will hear further submission from both sides on the appeal against sentence after the report now sent for has been considered.

Mr Giles Surman, instructed by Messrs Kent Tam & Co, for the Appellant

Ms Denise Chan, of the Department of Justice, for the Respondent