HKSAR v. Liyana Arachchige Naveen Roshan Gunathilaka

HCMA 431/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 431 OF 2012

(ON APPEAL FROM ESCC 1053/2012)

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J U D G M E N T

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1.This Appellant was convicted after trial in the Magistrates’ Court on a charge of theft, the particulars of which are “that on the 16th day of March 2012 at Wellcome Supermarket, G/F, Pearl City Mansion, 25-29, Great George Street, Causeway Bay, in Hong Kong, [he] did steal three cans of milk powder, the properties of Wellcome Supermarket”. The Magistrate sentenced him to 4 months’ imprisonment. He now appeals against conviction and sentence. Mr Mark Sutherland appears for him under the Bar Free Legal Service Scheme. I thank Mr Sutherland and the Scheme.

2.The “Perfected Grounds of Appeal against Conviction and Sentence” drafted by Mr Sutherland and filed on the Appellant’s behalf begins by saying that the conviction is unsafe and unsatisfactory on the grounds which follow that statement. There are seven such grounds, each particularised at some length. Without reciting those particulars, those grounds are as follow.

3.Ground 1 reads:

“There was no evidence before the Court which can support a finding as to the ownership of the milk powder that was the subject matter of the charge and of which the Appellant was convicted.”

4.Grounds 2 to 6 are directed to the testimony of PW1 the manger of the supermarket concerned. What PW1 testified to seeing was summarised by the Magistrate in paras 5, 6 and 7 of her Statement of Findings which read:

“(5) PW1 was the manager of the Wellcome supermarket and PW2 was the officer responsible for burning the CCTV footage (P1) from the system.

(6) On the material day, PW1 noticed from the CCTV that  the rucksack of the Defendant (P2) became bulky after he stood close to the display shelf. However, he did not witness if the Defendant had taken any of those items from the rack as his view was blocked by another stack of goods. PW1 found him suspicious, went out of the manager room and followed him. The Defendant passed through the cashier without making any payment.

(7) PW1 intercepted the Defendant outside the supermarket. As the Defendant opened his rucksack, 3 cans of milk powder (P4 (a)-(c)) were seen. PW1 brought him back to the supermarket and confirmed that there was no relevant sales record. The case was reported. He could not recall if there were other items inside the rucksack. He did not pay attention to the black bag.”

5.Ground 2 reads:

“The testimony of PW1 cannot be reliable as there was no credible, logical and/or rational explanation as to why he originally made unequivocal allegations against the Appellant both at the scene and in his first statement to the Police. This is in stark contrast to PW1’s testimony in Court when he simply said he could not remember.”

6.Ground 3 reads:

“The testimony of PW1 was modified in his second statement to the Police in order to match what he saw on the CCTV camera one day before giving the second statement.”

7.Ground 4 reads:

“The testimony of PW1 was likewise tainted by contradictions, inconsistencies and inherent improbabilities.”

8.Ground 5 reads:

“The Testimony of PW1 was mere speculation and it was in fact accepted by the Learned Magistrate despite her indication to the contrary.”

9.Ground 6 reads:

“The Learned Magistrate accepted the testimony of PW1 as regards what the Appellant said to a colleague “Give me a chance” when this was inadmissible hearsay as the colleague neither made a statement to the Police nor was he tendered for cross-examination.”

10.These grounds are followed by the final ground of appeal against conviction, namely ground 7 which reads:

“There must be a lurking doubt as to the safety of the conviction in the light of the above Grounds when taken together.”

11.As far as Ground 1 is concerned, the prosecution’s response is:

(i) that the prosecution only need to prove that the three cans of milk powder belonged to another person other than the Appellant and

(ii) that in any event the evidence showing that the milk powder belonged to the supermarket was overwhelming.

It is the law that that would be sufficient provided that the Appellant stole the cans from somebody. But as a matter of reality there is nothing to suggest that they were stolen if they were not taken from the supermarket concerned. That is where this ground fails. It is plain that if the Appellant took them, he took them from the supermarket concerned.

12.As for the attack on PW1’s testimony, I have had regard to all the particulars and the whole of the arguments presented by Mr Sutherland.

13.The attack on PW1’s testimony involves matters which were for the Magistrate to consider and which I am satisfied that she did consider. I am unpersuaded that the reliance placed on PW1’s testimony by the Magistrate who saw and heard all the witnesses can properly be overturned on appeal. In convicting, the Magistrate had regard to the whole of the evidence and the whole of the circumstances. The Magistrate viewed the CCTV footage.

14.The conviction did not depend on the evidence that the Appellant had asked for a chance. And in any event PW1’s testimony of the Appellant having asked a colleague of PW1’s for a chance is not hearsay. It is evidence of what the Appellant said, in other words, of his reaction which was part of the circumstances.

15.There is no substance in any of the grounds which precede Ground 7 and there is therefore no substance in Ground 7 either.

16.I find no basis on which this conviction can properly be disturbed. The appeal against conviction is dismissed.

17.The ground of appeal against sentence, assuming it is really a ground of appeal against sentence, reads:

“The sentence, although already served, should likewise be set aside along with the conviction.”

Of course the sentence would be set aside if the conviction were quashed. But the conviction is not quashed.

18.The Magistrate’s Reasons for Sentence are in paras 25-27 which read:

“(25) In mitigation, I was only told that the Defendant was a torture claimant in Hong Kong.

(26) From the records, I noticed that he was 34 years old. He had 6 previous convictions, of which 3 were related to theft. In passing sentence, I made reference to the case paper regarding his last conviction of theft on 2 October 2010. I noticed that he was then convicted 2 charges, both in relation to the stealing of 4 and 6 cans of milk powder respectively.

(27)   Having considered the quantity of the stolen properties concerned and all the circumstances, I considered that a term of 4 months imprisonment was appropriate.”

19.There is no proper basis for disturbing this sentence. The appeal against sentence is also dismissed.

Mr Mark R C Sutherland, instructed by the Hong Kong Bar Association Free Legal Service Scheme, for the appellant.

Mr Franco Kuan, of the Department of Justice, for the respondent.