HKSAR v. Lau Yu Sing

HCMA 15/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 15 OF 2011

(ON APPEAL FROM KCCC 4821/2010)

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Before: Hon. Wright J

Date of Hearing and Judgment: 8 March 2011

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JUDGMENT

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1.The appellant, a 61 year old male, was convicted by Mr T Casewell, after trial, of a single charge of theft contrary to s. 9 of the Theft Ordinance, Cap. 210 and sentenced to pay a fine of $750.00. He appeals the conviction.

2.The appellant entered a retail shop. He was carrying a yellow bag and wearing trousers which had expandable pockets on the legs. He picked up two tins of drink and put them into one of those pockets. He was seen to do this by a member of staff. He remained in the shop looking at other items. He left the shop, passing by the cashier without paying. The staff member followed and intercepted the appellant. He returned to the shop when asked to do so. Although there was apparently some debate as to precisely how the appellant had reacted when intercepted, the prosecution evidence was not challenged to any material extent.

3.The appellant elected to give evidence. He explained that he had been carrying the yellow bag in his left hand and had used his right hand to put the two tins into his pocket in case he needed to use his right hand for any further purchases he might decide to make. He disputed that he had dishonestly intended to deprive the owner of the property, saying that he had simply been forgetful and it was only when he was stopped that he realised he had the tins in his trouser pocket. He had simply forgotten to pay.

4.The magistrate accepted the prosecution evidence. He rejected the appellant's version saying that his action in placing the items in his pocket clearly had been an act concealing those items, which were bulky rather than light and such as to obviously fill the pocket. He found that it clear that the appellant had put the items in his pocket in order that he could walk out without being seen whilst, at the same time, because of their bulk he must have been aware that the items were in his pocket as he left.

5.Yet again, it appears necessary to observe that these proceedings are a rehearing before this court on the material before the magistrate. The issue is whether, respecting the advantage that the magistrate had in seeing and hearing the witnesses before him, the judge on appeal is satisfied on that material of the appellant's guilt. That said it is appropriate to address, briefly, the three complaints that were made concerning the magistrate’s approach.

6.The first asserts that by saying

"He prays in aid his clear record which is relevant both to his propensity to commit this offence, and also the way I should assess his evidence. All the appellant needs to do is to establish a reasonable doubt as to any of those elements of the offence"

the magistrate reverse the burden of proof since, it is submitted, "’establish’ means to establish by evidence to a requisite standard and the appellant should not have been so required."

7.The submission takes out of context what was said by the magistrate. It is abundantly clear that he used the word "establish" in the sense of the appellant demonstrating the existence of a reasonable doubt or setting one up or illustrating one or raising one - not of proving one. This submission is entirely unmeritorious.

8.The second and third complaints may conveniently be taken together: the second suggests, for four itemised reasons, that the conviction is unsafe and unsatisfactory because the magistrate rejected the appellant's "explanation of having (sic) forgetful” whilst the third complains that the magistrate failed to assess the appellant's defence of being forgetful. He did no such thing. To the contrary, the magistrate gave compelling, logical reasons for rejecting the appellant's version. The issue was four square before him and addressed at length by the Duty Lawyer who appeared for the appellant. The four itemised facets of the evidence, like the first complaint, seek to misconstrue what the magistrate said and, further, lack the logical and consistent approach demonstrated by the magistrate.

9.The evidence, properly evaluated, does not leave room for any reasonable doubt that at the time he concealed the two tins in his clothing and left the store without paying for them, the appellant dishonestly appropriated the property of the storekeeper with the intention of permanently depriving him of it.

10.The appellant was correctly convicted. The appeal is dismissed.

Ms. Bianca Cheng, Senior Public Prosecutor, Department of Justice, for the Respondent.

Mr. Dan Chung, instructed by Messrs. Joseph Tang & Co, for the appellant.