HKSAR v. Hachi Chan, Vivian

HCMA692/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 692 OF 2010

(ON APPEAL FROM STCC 2818 OF 2010)

--------------------------------

BETWEEN

--------------------------------

Before : Hon Tong J in Court

Date of Hearing : 18 January 2011

Date of Judgment : 12 August 2011

------------------------

J U D G M E N T

------------------------

Background

1.The appellant was charged with an offence of theft.  She pleaded not guilty and was convicted after trial.  She was fined $3,000.  She now appealed against the conviction and sentence.

2.The particulars of the charge alleged that the appellant, on 2 June 2010, at City Super in New Town Plaza, Shatin, had dishonestly taken one bottle of soy milk and one pack of cooked prawn dumplings, those items being the properties of City Super Limited.

3.At the trial, the appellant was represented by counsel instructed by the Duty Lawyer Scheme.

The prosecution evidence

4.PW1, the store detective, testified that he had seen the appellant in the shop on the day in question.  He saw the appellant take a bottle of soy milk and a pack of cooked prawn dumplings from the display.  At first she was holding the items in her hand and she later put them into a recycled bag which she had with her at the time.  Then the appellant walked to the customers service counter, spoke to the staff there, and then left the shop by using the escalator.  PW1 said he followed the appellant and stopped her outside a bakery shop.  He escorted her back to City Super.

5.PW1 had indicated where the appellant had obtained the items and also the locations at which she had put the items into her bag.

The defence case

6.The appellant had elected to testify.  What she said was that on the day in question, she had an appointment with the Duty Lawyer office in the afternoon, and the meeting was only over at about 6:30 p.m. By then the front gate of the court building was already locked, so she had trouble finding her way out.  After that, she visited a grocery shop, and then she intended to go to the Shatin Public Library to retrieve her personal property. On the way, however, she thought of getting a soy drink so she dropped by City Super.  After getting the soy drink, she also picked up the dumpling, then she talked to the staff at the service counter where she was given a free copy of magazine.  She was happy about it and had forgotten that she had not yet paid for the items inside her bag.  She just left the shop.

7.The appellant said that during the time, she was anxious and worried about a pending case.  She told the court that she had been forgetful, and was also experiencing hormonal imbalance due to menopause. She said she was preoccupied with her personal things in the locker of the public library.  She was eager to retrieve those before the closing time.

8.The appellant had a clear criminal record.

9.A defence witness was called.  He was the counsel who had the appointment with the appellant on the material date. Mr Lee confirmed that because he was engaged in court earlier, the meeting with the appellant could not begin until 5:30 p.m. and it went on until 6:30 p.m.  Mr Lee pointed out that based on his observation, the appellant did appear to be anxious, she looked pale and not well focused.  He had to give her much reassurance.  Furthermore, because of the late hours, they did have trouble leaving the court building.

Analysis of the evidence

10.The magistrate stated that while he accepted that the appellant had a long afternoon and could be feeling anxious as a result of the waiting, the long meeting, the leaving and the things in the library, however, he was not persuaded that the appellant had been forgetful despite her alleged healthy conditions.  The magistrate said, in particular, that considering the nature of the items taken, which were cold and slightly damp, the appellant could not have neglected their presence.  In any case, the magistrate did not find the appellant to be a truthful witness.  He rejected specially that the appellant had put the items in her bag only after seeing the staff at the counter. 

11.Even considering her good character, the magistrate reached the following conclusion (see Statement of Findings, paras 20 and 21) :

“20. Having considering all the evidence before the court, I was satisfied beyond reasonable doubt the Appellant was not being forgetful as she had described. To the contrary, I found that she knew she had put the soy milk and prawn dumplings into her bag, and had intended not to pay for them. She did not leave immediately putting after these items into her bag. Instead she went to the Customers Service counter before making her way out.

21. I was satisfied beyond reasonable doubt of her guilt and I therefore found her guilty and convicted her on the charge.”

12.As to sentence, the magistrate did not address the point specifically in the Statement of Findings, but in the oral decision on sentence, the magistrate obviously accepted that she had some kind of illness and in view of the clear record, a fine of $3,000 was imposed.

Grounds of appeal

13.The appellant had not instructed counsel to conduct the appeal.  In relation to conviction, she relied on the following ground :

“Witness is not the gentleman who intercepted me at the spot. If anyone of the staff of the concerned party can be named to be the witness then I doubt the good view of the just.”

For sentence, she raised the following point :

“In between 3/6/2010 to 8/6/2010, I was put into the Correctional Service Centre without bail being granted. This shall also serve way of sentence. So I would like Your Lordship to consider that the appropriateness of the fine of HKD3000.-”

Assessment

14.The two appeals (HCMA692/2010 and HCMA816/2010) were heard together.  The appellant, in her oral submission in court, had taken a point regarding the arrangement of legal representation in the case of HCMA816/2010.  Her complaint, as far as I could make out, was that the prosecuting counsel (on fiat) had previously given her legal advice through the Duty Lawyer Service.  She thought it was unfair to her, even though there was a re-arrangement, as the fiat counsel might have passed “the file” to the subsequent prosecutor.  

15.In order to ascertain what had really happened, I had asked for the transcript of the proceedings and hence the hearing was adjourned.  The transcript was subsequently available and a copy was given to both sides.  I had read the contents.

16.For this appeal, however, the appellant’s main complaint regarding the conviction was that PW1 was not the person who had intercepted her outside the shop.  She said that this situation should not be allowed to happen where the company could just call anybody to be a witness instead of asking the person involved to attend court.

17.Having been prompted by the court, the appellant had made further submissions after receiving the transcripts.  She had the following additional points to make about the conviction :

“B. Appeal Case No. 692 from STCC 2818/2010

(i) Re: Transcript of Proceedings on page 33-para I to Q

The so-called witness PW1 was giving inconsistent versions of evidence. He first denied he had said to me that ‘the alarm had gone off.’ But under cross-examination, he admitted that he did say it to me. When the witness was shifting his evidence, the magistrate still found him to be reliable and truthful, such subjectiveness is not just for the trial.

(ii) Re: Transcript of Proceedings on page 33-para S to V and page 34-para A to H

The PW1 said he did not grab my wrist and did not see anyone doing that, nor did he hear me saying ‘Let go of me’.  That is correct simply because he was neither one of the two gentlemen who stopped me outside a bakery called Queens.  It serves to explain why he knew nothing about what happened in the doorway of the bakery, when my left had wrist was tightly grabbed by the guy not wearing the security guard uniform, the other was with the uniform.  But the magistrate subjectively chose to believe what was not the fact.”

Discussion

18.This trial involved mainly issues of facts as to whether the appellant had deliberately and dishonestly taken the items without paying.  In this regard, the magistrate, who had seen the witnesses and heard the evidence directly, was in a much better position to form a view as to their veracity.  In this particular case, it would not be appropriate for me to query the magistrate’s findings on matters of credibility just by reading the transcripts.

19.But if I were to form my own view of the circumstances of the case, on the face of it, I would actually agree with the magistrate’s conclusions. The appellant said she was feeling anxious that day because of different reasons, one of the problems was that she had to hurry in order to get back the items from the library.  But if that was the case, it would be very odd for her, instead of going straight to the library, to make what appeared to be a leisurely stop at the supermarket, during which she even had a chat with the customer service staff.  I would say the appellant’s behavior was not really consistent with her claim of being anxious, particularly so after she had finally left the court building.

20.The issue about PW1 not being the staff who had carried out the interception was really a matter to be ventilated at the trial.  I see no substance in the complaint.

21.The appellant said that PW1 had given inconsistent accounts about the sounding of the alarm.  But the magistrate was fully aware of this issue.  The magistrate said in his oral reasons that :

“… There was no alarm system at all in City’ super. … I do not think PW1 had changed his evidence at all. He was just reluctant to disclose at first but he did explain and reveal all under cross-examination.” (See Appeal Bundle, p.33O to Q.)

22.The other point about the grabbing of her wrist was really a variation of the original ground that PW1 was not the staff who had stopped her.

23.Considering the evidence as a whole, I see no reason to disturb the conviction.

24.But as to the sentence, on reflection, I tend to agree with the appellant to a certain extent.

25.Effectively this was the appellant’s first conviction.  Given her positive background, possible health issues and the worth of the items, I would say that $3,000 fine was manifestly excessive.

26.Hence, I would allow the appeal on sentence and reduce the fine to $1,000.

Conclusion

27.I would dismiss the appeal on conviction, but allow the appeal on sentence.  The fine is reduced to $1,000.  The appellant is entitled to the refund of $2,000.

Ms Chan Suk Wai, Winsome, SPP of Department of Justice, for HKSAR

The Appellant in person, present