HKSAR v. LAM YIU WA

HCMA1057/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1057 OF 1999

(ON APPEAL FROM SPCC NO.5419 OF 1999)

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J U D G M E N T

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1. The appellant was convicted after trial on 21 September 1999 of theft. He was fined the sum of $1,000 together with costs. He now appeals that conviction.

2. The facts were a little unusual. On 2 August 1999, the appellant visited the Wellcome Supermarket in Wong Tai Sin, unbeknown to him he was then under surveillance by a team of police officers for a matter unconnected with the matter before me, and concerning which the magistrate warned himself and dismissed from his mind. A woman police officer ("PW1") was following him and saw him entered the Wellcome Supermarket. She said that when he entered he was not carrying anything, and that in the course of his shopping, he took out from a refrigerator the items referred to in the charge. She said that having taken them and put them in his trolley, he then pushed the trolley to a place near where the eggs were sold. She saw him looking around, then saw him take out a Park'n Shop carrier bag from the right front trousers pocket, using his right hand. She saw him opening that carrier bag and putting the frozen food referred to in the charge into that carrier bag. He then placed the bag on a hook on the trolley. He continued to shop and then went to the cashier ("PW3"). She saw him produce a number of items for payment and paid for those items. Those frozen items in the Park'n Shop bag was still hanging on the trolley and they were not produced for payment. She then saw him hanging the Wellcome carrier bag with the Park'n Shop bag on the trolley. He pushed the trolley to the exit of the supermarket where he took both bags and left the supermarket.

3. At that point, PW1 telephoned her colleague, a detective sergeant ("PW2") who was also involved in the surveillance of the appellant. Some distance from the supermarket, PW2 apprehended the appellant and brought him back to the cashier where the items in the Park'n Shop bag were inspected.

4. Mr Cheung for the appellant raises two matters of fact which he argues are in conflict between the evidence of PW1, PW3 and the manager of the supermarket ("PW4"). PW1 said that she saw the appellant open the door of the refrigerator and then take out the fish fillet from the middle rack. He then took out two packs of cuttlefish ball. She was asked whether they were taken from the same portion of the same refrigerator, and her answer was "yes". Mr Cheung argues that this contrasts with the evidence of PW3 who, on being referred to a photograph of the refrigerator where these frozen goods were kept, said that the items in the charge were kept in different places in the refrigerator shown in Exhibit P3 and was asked this :

I take it from that that her answer was that two different doors had to be opened to obtain the goods which formed the charge.

5. PW4, on the other hand, says that whilst the two items were in different places in the refrigerator, one was behind the door and the other was in the open space of the refrigerator below the doors, meaning of course that only one door needed be opened to take the items referred to in the charge. There is, therefore, an inconsistency between the evidence of each of the three prosecution witnesses.

6. The second matter complained of by Mr Cheung is that PW3 was unable to say that a female police officer, who identified herself as such and was helping to identify the stolen property, was alongside her when the appellant was brought back to identify the goods. There were no questions asked as to how she would identify any woman as a police officer and she did testify there were other people around her at the time of the inspection. She was unsure in her answers as to whether any of them were a female police officer. What she was sure about is that no female told her that she was a police officer.

7. There would not appear to be a contradiction of any substance whatsoever between the evidence of PW1 and PW3. The only contradiction which may be said to be of substance is that concerning the exact place where the goods were taken from the refrigerator. This is a matter of fact and, as Mr Madigan points out to me, although PW3 and PW4 may be honest and accurate in their evidence as to where the employees were instructed to place goods on shelves in the refrigerator, or in the open part below the refrigerator, that does not mean that customers may not replace in the refrigerator goods in their wrong place or that those who stacked the shelves put them in the wrong place. In any event, the magistrate considered carefully the evidence of PW1. He found her to be a truthful witness and it is quite clear from the detail with which he considered her evidence that he had the whole of her evidence in mind together with that of PW2, PW3 and PW4.

8. The case put forward by the appellant was that these goods, subject to the charge, had been left with his sister-in-law at an earlier time and that on the day of the alleged offence, the Park'n Shop bag and contents were picked up by him when he met his sister-in-law at a flower market. She had consumed the items and replaced them. He said he was carrying the items when he went into the supermarket, selected further items, paid for them and left. The magistrate considered that evidence and said this :

He further reminded himself that the appellant was to be treated as a person of good character and directed himself fully in accordance with R. v. Berrada [1991] Cri. App. R. 131 CA.

9. In all the circumstances, the matters raised as contradictions by Mr Cheung are not matters which give rise to any concern concerning the reliability of the findings of the magistrate. This appeal against conviction is dismissed.