HKSAR v. Lam Kit Mi

HCMA107/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 107 OF 2010

(ON APPEAL FROM KTCC 6760 OF 2009)

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Before : Hon McMahon J in Court

Date of Hearing : 19 October 2010

Date of Judgment : 22 October 2010

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J U D G M E N T

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1.The appellant was convicted of an offence of theft after a trial before Mr Dufton in Kwun Tong Magistracy. She was fined $750 and appeals only her conviction.

2.The prosecution’s case was that the appellant stole four cartons of milk from a small supermarket in Mongkok.

3.The evidence against her came primarily from PW1, a staff member working at the supermarket whose evidence was she saw the appellant take four milk cartons from the store refrigerator, put them in a shopping bag on her shoulder and then go through the cashiers lane without removing them, and therefore not paying for them.  PW1 then followed the appellant and intercepted her outside the store.  A report was made to the police eventually and a constable, PW2, arrived at the scene.  When he spoke to the appellant she said she had forgotten to pay.

4.The appellant did not give evidence or call witnesses but her case as put in cross-examination was that PW1’s evidence was unreliable and that the real facts were that the appellant had told the cashier of the milk cartons in her shopping bag which she placed on the cashiers counter, and therefore thought she had paid for them.

5.The grounds of appeal relied upon by Mr Y.K. Law are :

(1)     PW1 was so unreliable a witness that no credit should have been placed on her evidence;

(2)     That the evidence was consistent with the Appellant simply forgetting to pay for the milk cartons; and

(3)     That there was insufficient evidence that the Appellant had not in fact paid for those milk cartons.

Ground 1

6.Mr Lau argues that there were material aspects of PW1’s evidence which were such as to negate her credibility as a witness.

7.He points to her evidence at trial to the effect she had seen the appellant take the four cartons of milk from the store refrigerator.  She was cross-examined to the effect she had told PW2 that she had not actually seen the appellant take the milk cartons from the refrigerator but had assumed this to be so.  PW1 denied she had said this to PW2.  PW2 in his evidence said that PW1 had told him she had not seen the appellant take the milk cartons from the refrigerator but thought this to be so because of the empty spaces in the refrigerator where the milk cartons had been.

8.So far as this matter is concerned there was never any issue that the appellant had taken the cartons of milk from the refrigerator.  What was in issue was simply PW1’s general reliability.  The discrepancy was said by Mr Lau to be relevant to that issue.

9.The magistrate considered this matter and concluded in this regard :

“31. I was satisfied this discrepancy as to whether or not PW1 actually saw the defendant take the milk from the fridge was not material and did not cause me to doubt the remainder of PW1’s evidence. Clearly PW1 saw the defendant holding the milk and that after about one minute, when the defendant was out of her sight, PW1 next saw the defendant line up to pay at a time when she was no longer holding the milk. I accepted PW1’s evidence she then walked to the back of the defendant to peep in her bag and saw the milk inside the brown bag (exhibit P2), which the defendant carried on her right shoulder. PW1 then waited to see whether the defendant paid for the milk. There would have been no reason whatsoever for PW1 to walk to the back of the defendant to see if the milk was in her bag and wait to see whether she paid for the milk if she had not seen the defendant holding the milk earlier.”

10.I entirely agree with that conclusion.  The discrepancy in the evidence between PW1 and PW2 is the usual sort that exists between the evidence of even honest witnesses and here the discrepancy, to make it even less material, related to a fact which was not in issue.

11.Another inconsistency said to be evident in PW1’s evidence was between her evidence-in-chief to the effect the appellant’s shopping bag (containing the four milk cartons) had remained at all times on her shoulder as she paid the cashier for other items she had purchased in the store, and PW1’s evidence in cross-examination that before she had gone after the appellant to stop her she had asked the cashier whether the appellant had paid for the milk cartons.

12.Mr Lau argues that if PW1 had truly seen the shopping bag on the appellant’s shoulder at all times she would not have had to ask the cashier whether the milk cartons had been paid for, and that therefore it was possible the appellant had put the bag upon the cashiers counter and told her these were four milk cartons inside.

13.With respect I do not think this aspect of PW1’s evidence can be dignified with the word “inconsistency”.  In the circumstances it was a natural reaction for PW1 to confirm with the cashier that the appellant had not paid for the milk (as PW1’s observation had correctly led her to believe) even though she was sure that the appellant had kept the shopping bag on her shoulder at all times.

14.Mr Lau complains also that PW1 was “evasive” in her evidence when it was put to her that the store was so busy at the time of these events that there were no available shopping baskets; the implication being that that was why the appellant had put the milk cartons in her own bag.  But having read the transcript relating to this aspect of PW1’s evidence it is clear to me that PW1 was not evasive but was firm in her evidence that because on the particular occasion there were relatively few people in the store there must have been baskets available for use.  The confusion or evasiveness referred to by Mr Lau in his submissions was concentrated mainly upon whether or not the interpreter had provided the correct interpretation of the witness’s answers.  When subsequently PW1 was asked whether she personally had checked whether there were baskets available at the time, she repeated that there must have been, and then when pressed replied that she had not checked personally.  I do no think that single vacillation in her evidence warrants the description “evasive”.

15.One final aspect of PW1’s evidence is relied upon to support that description of her evidence.  It relates to when the appellant had been stopped by PW1 outside the store and was later removing items from her bag which she had bought back into the shop :

“Q: Now, when you first saw the defendant at the store, did you notice the condition of her shopping bag?

A: Her bag had nothing in it.

Q: And, when the defendant entered the shop again, when she took out the four packs of milk, could you see the inside of the shopping bag?

A: She took them out herself, but the vegetables and things were already placed inside.

Q: Apart from the vegetables and garlic, did you – could you see if there was anything inside?

A: There were none.

…

Q: When she took the four cartons of milk out of her bag, could you see, inside, whether there was anything else in the bag besides the vegetable and garlic?

A: There were only vegetables and garlic when she took out the four packs of milk. There were only – be the vegetables and garlic left inside the bag.

Q: But you – you could see the inside of the shopping bag, correct?

A: Everything of hers was inside.

COURT: No, what you’re being asked, Madam, is this. Just listen carefully. When the defendant took the four cartons of milk out of the bag, could you see inside the bag?

A: When she was taking out the milk, I could see the vegetables and garlic.

COURT: Could you see anything else inside the bag? That’s what you’re being asked.

A:      No, meaning the bag only carries milk, vegetables and garlic.”

16.I cannot see that there is anything evasive in the evidence of PW1 in this respect.  She was consistent in her evidence that apart from the vegetables, garlic and milk there was nothing else in the shopping bag.  In cross-examination she said she had not looked inside the appellant’s bag but could see inside the bag “because the bag was all open then”. She also replied that after the appellant had taken out the four cartons of milk : “I could see the vegetables and garlic inside, but I could not see anything beneath that” and that : “I could not see other things inside the bag”.  The matter was not taken further in cross-examination and in my view there was nothing evasive or inconsistent in PW1’s evidence in this regard although there may have been occasions when she did not fully understand the question she was being asked.

17.There is nothing in this first ground of appeal.  The magistrate was entitled to accept PW1’s evidence and in my view was right to do so.  That meant that the appellant’s version of events to the effect that she had placed the shopping bag on the cashiers counter and told the cashier there were four cartons of milk in the bag must necessarily have been rejected as it was PW1’s evidence that at all times the shopping bag stayed on the appellant’s shoulder.  The cartons of milk were never taken from it.

Ground 2

18.This ground related to, as the appellant’s case was presented to me, an issue not really raised in the trial itself; that is, whether it was possible that the appellant had placed the four cartons of milk in her bag and had forgotten to pay for them as she was at the cashiers counter.  It is notable that this possibility only arises on appeal on the basis that PW1’s evidence was properly accepted by the magistrate.  It did not form any substantive part of the submissions made on behalf of the appellant at trial.

19.The appellant, when intercepted by PW1, had initially said that she had paid for everything, but later when the police had arrived had told PW2 under caution that she had forgotten to pay for the milk.

20.I do not think that it is possible that the appellant did forget to pay for the four cartons of milk. They are bulky objects and apart from them she purchased only $4 worth of garlic and $7 worth of vegetables.

21.When the appellant was paying for the vegetables and garlic she must have been aware of the continuing weight on her shoulder.  Subsequently she put the garlic and vegetables in her bag and apparently did not react to the presence of the unpaid for milk cartons.

22.Given the evidence of PW1 set out above that she could see nothing else in the appellant’s bag but the vegetables and garlic, the chances of the appellant forgetting to pay for the bulky milk cartons, and subsequently not realising that to be so, disappear to vanishing point.

23.Some argument was also directed at the magistrates alleged failure to consider whether it had been proved that the appellant possessed the required mens rea.

24.The magistrate is and was very experienced and it can safely be accepted he knew of the elements of the offence of theft.  He said in his reasons for verdict that he was satisfied at the end of the day that the appellant had dishonestly taken the four milk cartons and that the prosecution had proven the elements of the offence.  That was sufficient to address the question of mens rea.

Ground 3

25.The final argument advanced by Mr Lau was that there was no sufficient proof the Appellant had not paid for the milk.

26.For some reason the prosecution did not call direct evidence that the four cartons had not been paid for at the cashiers counter.  Instead it relied on the admissions of the appellant under caution when arrested by PW2 that “I took the four cartons of milk and the vegetables and placed them inside the brown bag of my own.  I had forgotten to pay on this occasion but I had paid for the vegetables but I did not pay for the milk.”

27.The magistrate in dealing with this matter said :

“32. Mr Lau submitted there was no evidence that the defendant did not pay for the milk. With respect this submission overlooked that under caution the defendant admitted that on this occasion she forgot to pay and that she had paid for the vegetables but not for the milk. I was satisfied full weight was to be placed on the admission that the defendant did not pay for the milk.”

28.I agree with that conclusion.  The appellant’s admission when taken in conjunction with PW1’s evidence that the appellant’s bag with the cartons of milk inside remained on her shoulder throughout her stay at the cashiers counter seems to me to be sufficient to properly establish that she had not paid for the milk cartons.

29.I do not think that the appellant’s initial assertion she had paid for all the goods made to PW1 assists the argument of Mr Lau in this regard.

30.For the above reasons I am satisfied there was nothing unsafe or unsatisfactory in the appellant’s conviction and the appeal is dismissed.

Ms Irene Poon, SPP of the Department of Justice, for HKSAR

Mr Nicholas Y.K. Lau, instructed by Messrs Kitty So & Tong, for the Appellant