HKSAR v. Hachi Chan Vivian
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HCMA816/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 816 OF 2010 (ON APPEAL FROM STCC 2483 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 sentenced to a term of Community Services Order. 2.The particulars alleged that she had stolen one packet of almond cake, one packet of chicken pie and some bread from a Park’n Shop in Shatin, which were properties of Watson Co. 3.The appellant had originally appealed against the conviction and sentence. Later, she abandoned the appeal on sentence. The prosecution’s case 4.PW1 was the store detective. He said that on the day in question at around 1:00 p.m., he saw the appellant took the bread from the baker section and then placed the items into a bag that she was carrying. After wandering near the fruit display, she left the store without paying. 5.When she was confronted, the appellant said she would pay for the items. She was then taken back inside the shop and the different items were found inside the bag. The police was later called. Defence case 6.The appellant elected to give evidence. The appellant said that at about 1:00 p.m. on the day in question, she was going to a dancing class. She was carrying a beige bag. Inside that, there was a smaller bag in which she had placed various items including her mobile phone, purse, keys, and some clothes. 7.On the way, she had stopped by the bakery in the supermarket and picked up three packets of bread. When she was near the cooked food stall area, she said her mobile phone vibrated inside the smaller bag, and without thinking, she put the bread inside the beige bag, whilst she was searching for the mobile phone. But her mobile phone had stopped vibrating. She then remembered this was a reminder call for her dancing class. In her rush to go to the fitness centre, she said she had forgotten about the unpaid bread in her bag. 8.When intercepted outside the shop, the appellant denied that she had made an offer to pay, and when the police officers arrived, she had not asked them for “a chance”. 9.The appellant explained that she had to go to the class that day because it was the last day of her membership, she had to pack up her things from the gym. She had actually taken the day off from work in order to do that. The appellant added that, in recent years, she had become forgetful because of the condition of menopause. She had no intention to steal. She said she had done voluntary work at the Olympic Games, helped in the events of Trailwalker and Sowers Action. She said she was also a regular blood donor. Assessment of evidence 10.The magistrate had reminded herself that the appellant had a clear record. 11.Having considered her account, the magistrate concluded that what the appellant had said was incredible. The magistrate stated, inter alia, that (Statement of Finding, para. 14) :
12.The magistrate also found the appellant to be evasive in answering questions. She did not accept the appellant to be a credible witness. 13.The magistrate pointed out that PW1 had given clear and credible evidence. She accepted his testimony. She also accepted the evidence of the arresting officer. Regarding the circumstances of the arrest, the magistrate pointed out (Statement of Finding, para. 16) :
14.The magistrate concluded that the appellant was acting dishonestly in leaving the shop with the items concealed. Ground of appeal 15.The appellant was not represented at the appeal hearing but she had submitted a letter stating her grounds. She raised the following points :
16.The appellant had repeated the 2nd point when addressing the court herself. In order to find out what had actually happened, I had asked for the relevant transcript for consideration. 17.The transcript was later available and I had given copies to both sides. I had read the relevant contents. 18.Having been prompted by the court, the appellant had added a few points after receiving the transcript :
Discussion 19.According to the record, the trial magistrate had, after listening to the defense submissions, adjourned the case to 31 August 2010 for verdict. After she announced the verdict, defence counsel then informed the court that the appellant was convicted of another case of a similar nature on 16 August. I could not accept that the magistrate had deliberately adjourned her verdict to see what was happening to the other trial. There was no point in doing so and in any case, when the magistrate had adjourned the case for verdict, she would not have known that the ‘other trial’ must be completed before 31 August. I see no merits in this ground. 20.Whether PW1, who had testified for the prosecution, was the staff who had intercepted the appellant outside the shop is primarily a question of credibility and fact. I do not consider this to be a valid point for consideration on appeal. This ground must also fail. 21.As to the issue about the change of the prosecutor, my reading of the record showed that the magistrate had dealt with the situation properly. What transpired was that when the appellant appeared before the trial magistrate on 10 August, her counsel, Mr Li, had stated to the magistrate that fiat counsel for the prosecution happened to be the duty lawyer for the appellant in a previous plea case, and that he had given her advice on that occasion. Mr Poon, the fiat counsel, had immediately clarified the position that he had indeed advised the appellant on the plea day but he had not appeared on her behalf in court. And that is why there was no formal record in the files. Then, at the suggestion of the magistrate, after taking plea from the appellant, Mr Poon passed on the case file to Mr Sze, a court prosecutor. Both sides then informed the magistrate that they were ready for trial. Hence, the magistrate proceeded with the case (see pages 48 to 49 Appeal Bundle). 22.In the busy magistracy courts, this sort of situation is not unheard of. And I cannot see any impropriety on the part of the magistrate or the parties involved. Mr Li, acting for the appellant at the trial, had rightly raised no objection to the arrangement. 23.As to the additional grounds raised by the appellant, I could also see no merits in them. The main reason why the magistrate rejected the appellant’s evidence was because of the contents of her account, the observation about the way she answered questions in court was only part of the overall consideration. The main point in para. 16 of the Statement of Finding was that there was no interior pocket in the beige bag and therefor the magistrate rejected the defence suggestion that there could be a mobile phone inside this pocket. Additionally, the officer said he did not see any mobile phone inside the bag, on the table of the supermarket, or at any time. The appellant’s suggestion that she did have a phone was not really the point. 24.Having considered the circumstances, I cannot agree that there was any unfairness involved in the procedure that would have prejudiced the appellant and I see no reason to disturb the magistrate’s findings and conclusion. Result 25.I would dismiss the appeal accordingly.
Ms Chan Suk Wai, Winsome, SPP of the Department of Justice, for HKSAR The Appellant in person, present | |||||||||||
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