HKSAR v. Cheah Chee Seng Michael

HCMA 560/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 560 OF 2011

(ON APPEAL FROM TWCC 1145 OF 2011)

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BETWEEN

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Before: The Honourable Mrs Justice V Bokhary in Court

Date of Hearing: 24 February 2012

Date of Judgment: 24 February 2012

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J U D G M E N T

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1.The Appellant, a man in his late 30s, was convicted after trial before Don So, Esq in the Magistrates’ Court on a charge of theft. He now appeals against that conviction.

2.On 2 April 2011 the Appellant walked out of a shop at the airport with a pair of sunglasses, valued at $2,230, for which he had not paid.  His defence, which he gave in the witness-box, was: that he was very tired that day; that he was distracted by a medical condition which caused him to panic and look for a toilet and also by his busy reading and replying to a job-related e-mail; and that all these matters caused him to forget that he was still holding the sunglasses.  The Magistrate rejected that evidence and was of the view that the only reasonable inference in all the circumstances was that the Appellant had stolen the sunglasses.

3.Seven perfected grounds of appeal have been filed.  Ground 1 is directed to contending that the Magistrate failed to have regard or sufficient regard to a number of matters.  Those were matters which were put forward in the defence evidence and submissions at the trial.  The Magistrate said that he had considered the same, and I see no reason on which to say that he had not.  This ground fails.

4.Ground 2 is that the Magistrate had failed to illustrate the salient points and demonstrate that the evidence and submissions favourable to the Appellant had been evaluated.  What constitutes compliance with a Magistrate’s duty in regard to such matters depends on the circumstances of the case.  I do not think that there was any failure in the circumstances of this case.  Ground 2 fails.

5.Ground 3 is that the Magistrate erred in law or had gone against the weight of the evidence in ruling that the Appellant could not have held the sunglasses and his passport holder for 12 minutes without dropping either or loosening his grip.  All that the Magistrate was saying is that it was hard to believe that the Appellant would have held them for 12 minutes without knowing that he was holding the sunglasses as well as his passport holder.  It was a factor to be considered.  The Magistrate was entitled to take it into consideration.  Ground 3 fails.

6.Ground 4 is that the Magistrate erred in holding that an irresistible inference could be drawn that the Appellant had the intention to steal the sunglasses.  If the Magistrate made no other error, it cannot be said that he could not infer an intention to steal as the only reasonable inference in the circumstances.  Ground 4 fails.

7.Ground 5 is that the Magistrate erred in giving himself a good character direction in the Appellant’s favour.  This was an error since the Appellant had a previous conviction for theft.  It was however an error to the Appellant’s advantage, and one of which he cannot legitimately complain. It does not, in my view, suggest any want of care in taking into account points in the defence’s favour or testing points put forward by the prosecution. Ground 5 fails.

8.Ground 6 asserts that “the Magistrate had displayed conducts that would raise a doubt as to the propriety of the conviction and that could only be interpreted either as disclosing some degree of subconscious misgiving in the magistrate’s own mind as to the precise nature of the occurrence or else simply as a verdict inconsistent with the facts as found”.  I see nothing that supports this assertion.  Ground 6 fails.

9.Ground 7 is general, being that the verdict is unsafe and unsatisfactory.  It adds nothing to the other grounds.  It fails along with them.

10.In the result, the appeal is dismissed.

Mr Jacky Jim, instructed by Cheung, Chan & Chung, for the appellant

Mr Andrew Cheng, of the Department of Justice, for the respondent