HKSAR v. PANG SHUK KING

HCMA 67/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 67 OF 2017

(ON APPEAL FROM TWCC 2475 OF 2016)

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REASONS FOR JUDGMENT

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Introduction

1.  The appellant was convicted after trial before Mr Raymond Wong Kwok‑fai at West Kowloon Magistrates’ Court on 19 January 2017, of one charge of theft contrary to s9 of the Theft Ordinance, Cap 210.  She was fined $2,500 by the court.  She now appeals against conviction only.  She was represented by Mr John Reading SC and Mr Charles Kwok in the court below.  She is represented by Mr Eric Kwok SC and Mr Charles Kwok on appeal.

2.  The charge read as follows:

“Pang Shuk-king, you are charged that on the 17^th day of September, 2016, inside Emporium Main Street USA, Hong Kong Disneyland, Magic Road, Penny’s Bay, Lantau Island, in Hong Kong, you did steal one packet of candy, valued at $118 Hong Kong Dollars, the property of Hong Kong International Theme Parks Limited.”

Prosecution Case

3.  PW1 and PW2 gave evidence.  They were both employed as security guards at Disneyland Hong Kong (“Disneyland”).  At about 3.45 pm on 17 September 2016, the appellant was seen to act furtively within the Emporium shop which is situated on Main Street USA, in Disneyland. At 3.50, the appellant was observed to take a bag of candy from a shelf within the Emporium and left the shop without payment.  At all times the bag of candy was in full view and for most of the time was held in her right hand.  After taking the candy, the appellant left the shop and met up with her mother and sister. From there on she was observed to go to a number of other shops to obtain promotional stickers.  These were referred to in trial as locations 1‑5.  At 4.06 pm, she was intercepted and in reply to enquiries from security staff she said “I forgot to pay for it again”.

Defence Case

4.  The appellant and her sister gave evidence.  The appellant was 53 years old and a nurse.  She is the eldest of six and was of good character.  She was a platinum member of Disneyland and had spent very large amounts of money at Disneyland between May 2014 and September 2016, amounting to $85,333.  They had attended on that day because Disneyland was celebrating Halloween.  She had gone inside the Emporium with her mother and sister.  She had noticed the promotional candy in the Emporium and had picked it up intending to pay for it but first she had intended to find her mother and sister who were elsewhere within the shop and to show her mother what she was intending to buy for her niece.  They all walked towards the end of the shop where the cashier counters were situated but there were seven or eight people queueing.  At the same time, her mother had directed her attention to a balloon stall situated outside of the shop (location 1) and they decided to ask for stickers at the stall.  She gave evidence and said that it was her intention to go back into the Emporium to pay for the candy once they had gone to the balloon stall.  She returned to the entrance of the Emporium after visiting the balloon stall to wait for her sister who had then decided to go to the balloon stall herself but her mother wondered off and she went after her as she was deaf and it would be difficult if she did not keep an eye on her.  At this time her sister was elsewhere.  She said she was unconcerned about having the bag of candy with her as she intended to pay and had previously paid for several goods obtained in various stores at just one counter at the end of her shopping.  Thereafter, she had become further distracted by the exercise of seeking to obtain more promotional stickers from as many stores as possible.  Her own bag was on her right shoulder and the bag of candy was in her right hand.  She was conscious of having her own bag on her shoulder but not really conscious of the bag in her hand because she collected the stickers with her left hand.  She told her sister that she intended to return to the Emporium to shop some more and to pay for the bag of candy at that time and that she would wait for her within the Emporium, as her sister was to leave them to meet up with friends.  She then visited locations 4 and 5 with her mother to obtain more stickers and intended to return to the Emporium after that.  According to Exhibits P5 and D1, which are maps of the immediate area in question, all of these locations are adjacent to one another.  In any event by 4.06 pm she had not yet paid for the candy when she was intercepted by PW1 and PW2.  She maintained she intended to pay and had not said to them that she had forgotten to pay.

The Grounds of Appeal

5.  Mr Kwok SC, on behalf of the appellant, sought leave to amend the Grounds of Appeal dated 24 February 2017 and leave was granted.  By her Amended Grounds of Appeal Against Conviction dated 14 June 2017, the appellant contends that:

(1) There was a procedural irregularity in that the learned magistrate convicted the Appellant on a basis different from the one relied upon by the prosecution.

(2) In convicting the Appellant, the learned magistrate had not drawn the necessary inference of dishonesty and intention of permanent deprivation against the Appellant.  The learned magistrate was only of the view such inferences could be drawn.

(3) The learned magistrate erred in not making any finding as to whether the Appellant had told her sister, DW2, of her intention (to pay later)[1]before departing at location 3.  Such finding has a bearing on the Appellant’s intention.

(4) In finding that adverse inferences of dishonesty and intention of permanent deprivation could be drawn against the appellant, the learned magistrate had not taken any and/or due consideration of the following facts, namely:

(a) The Appellant had all along made no attempt to hide Exhibit P1.

(b) The Appellant’s experience of making purchases at the shops in Disneyland.

In all the circumstances of the case the conviction was unsafe and unsatisfactory.

The Law

6.  An appeal under s113 of the Magistrates Ordinance, Cap 227 is by way of rehearing of the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power so to do (s118 (1)(b)).  It allows the judge on appeal to make whatever order the judge thinks just (s119(1)(d)).

7.  On a rehearing, the appellate court is required to assess the evidence and come to its own conclusions as to whether that evidence proves the essential elements of the offence to the requisite standard: HKSAR v Ip Chin Kei [2012] 4 HKLRD 383.  It follows that the appellate court is also required to ensure that all proper procedural steps were adhered to and safeguards were put in place as to the admissibility of such evidence as was relied upon by the court below.

8.  This court is entitled and indeed bound to come to its own conclusion about the evidence.  Per James J in Histollo Pty Ltd v Director-General National Parks & Wildlife (1998) 45 NSWLR 661:

“It is not incumbent upon the appellant to show that such conclusion was not open to the trial court in the sense of being a conclusion to which on the evidence, it should not have come. It is merely necessary to persuade this Court on a review of the evidence that guilt is not, to the necessary standard, proved by the prosecutor. If, as at trial, on the rehearing there is a reasonable doubt of guilt, the appeal must be upheld.”

9.  Because this is a rehearing upon the evidence as it was before the magistrate and is not a retrial, there are practical constraints placed upon the court in the exercise of its duties in making findings of fact and determinations in respect of the credibility of witnesses: HKSAR v Ip Chin Kei & Others supra.  So far as the facts are concerned this court recognises that it does not have the advantage of having received evidence at first hand which the magistrate enjoyed.  The same applies to the opportunity to see and hear the witnesses.  To offset that constraint, the court is entitled to have regard to the magistrate’s Statement of Findings to ascertain what determinations the magistrate made as to the credibility of witnesses and the reasons given for such determinations.

10.  The evidence in this case rested upon two prosecution witness of fact and two witnesses for the defence.  It necessarily involved an assessment of their credibility.  This court should be slow to reverse the finding of the magistrate as to the credibility of a witness unless satisfied that his conclusion on the facts is plainly wrong: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336.  Expanding upon that point, in HKSAR v Fok James Alistair [2015] 4 HKC 247, Zervos J said,

“In deciding whether a magistrate was plainly wrong in his finding as to the credibility of a witness, an appellate court should objectively determine whether the magistrate’s finding cannot reasonably be explained or justified. In other words, whether the finding was one no reasonable magistrate could have reached”.

Consideration of the Statement of Findings

11.  The learned magistrate was required to find that the defendant had entered the Emporium and taken the bag of candy dishonestly and with the intention of permanently depriving the owner of it.  In this case by drawing the irresistible inference there was an intention not to make payment.  That was the prosecution case.  There was no issue by the appellant as to appropriation nor as to permanent deprivation in the sense that the appellant at all times did take and intended to keep the goods but in return for payment.  The issue must therefore have been one in respect of dishonesty given that payment was not in fact made in the 16‑minute period in which she was observed.

12.  If that had been the case, this matter would have been very simple indeed.  PW1 saw her take the bag of candy, saw her leave the shop, saw her visit five more locations and intercepted her before she paid for the goods.  The question for the learned magistrate would have been whether she was going to pay for the goods or not?  However, there appears to have been not one but two visits by the appellant to the Emporium within a very short space of time.  The existence of a second visit arose for the first time in cross examination.  It is not clear from the papers whether this second visit was accepted to have occurred by the prosecution [Appeal Bundle 83D-T], or whether the learned magistrate found as a fact it occurred, but on balance it would appear that his consideration of the evidence included both visits.  PW1 and PW2 were not recalled for the matter to be put to them.  Mr Kwok SC complains that the acceptance by the learned magistrate of the two visits led to confusion as to the premise upon which he convicted the appellant.  He maintains that a thorough reading and interpretation of the Statement of Findings indicates that the learned magistrate found her guilty on the basis of an intention to permanently deprive taking place at location 3 (not within the Emporium), after the second visit and immediately prior to walking to location 4 and 5.  If that were the case, then the learned magistrate found the appellant guilty on a basis which was different from that upon which the prosecution was based.  If so, Mr Kwok SC contends that the appellant was prejudiced because the issue should have been aired and resolved by way of amendment to the charge and no doubt, he surmises, defence counsel would have asked for PW1 and PW2 to re‑attend to be cross examined upon the point.  This procedural irregularity, he submits, was prejudicial to the appellant and results in her conviction being unsafe and unsatisfactory.

13.  I do not consider this to be the appellant’s best point.  It was introduced by the appellant out of the blue. Prosecution counsel was not phased by the introduction of this subsequent visit.  He cross-examined upon it at length and defence counsel had the opportunity to address it in re-examination.  The court clearly noted the incident because the court intervened more than once to clarify the situation. No one suggested that PW1 be recalled.  It would appear that everyone proceeded on the basis that there were two visits even though the prosecution put its primary case upon the fact that there was only one visit to the Emporium and then, when pushed by the court, proceeded to also put its case on the alternative basis of two such visits.

14.  As for amendment of the charge, much will depend upon whether the learned magistrate did in fact take the view that the offence took place not within the Emporium but later at location 3.  If that was the case, must the charge be amended simply because it was complete at a different time and place?  Mr Kwok SC submits there is a defect in the information laid if the court has relied upon location 3 as to the time and place of the theft.  He relies upon the judgment of Deputy High Court Judge McMahon in HKSAR v Adeola Aremu George [2002] 2 HKLRD 510.  In that case, the learned deputy judge referred to ss23(1) and 27 of the Magistrates Ordinance, Cap 227 (“the MO”).  It is more helpful to consider these in reverse order.  Section 27 states:

“(1) Where it appears to the adjudicating magistrate that there is—

(a) a defect in the substance or form of any complaint, information or summons; or

(b) a variance between the complaint, information or summons and evidence adduced in support of it,

….

(2) The adjudicating magistrate shall amend the complaint, information or summons where:

(a) the defect or variance mentioned in sub-section (1) is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order as to costs, an adjournment or leave to recall and further examine witnesses or call other witnesses.” (Emphasis added)

That was read in conjunction with Section 23, which states:

“In every case of an information for any offence punishable on summary conviction any variance between the information and the evidence adduced in support thereof as to the time at which the offence or act is alleged to have been committed shall not be deemed material, if it is proved that such information was in fact laid within the time limited by law for laying the same; and any variance between the information and the evidence adduced in support thereof as to the place in which the offence or act is alleged to have been committed shall not be deemed material provided that the offence or act is proved to have been committed within the jurisdiction of the magistrate by whom the information is heard and determined.”

15.  Did the learned magistrate find the appellant guilty on a basis other than that advanced by the prosecution?  Was that variance material?  Was the appellant prejudiced thereby?

16.  In the Statement of Findings, paragraphs 41‑46 do not provide any indication of the basis of conviction save for the fact that the learned magistrate accepted the evidence of PW1 and PW2.  He refers only to evidence which was not in issue i.e. the taking of the candy, the subsequent movement between locations 1‑5 and interception some 16 minutes later. None of this was in dispute.  Paragraphs 38 and 39 fall under the heading Defendant’s Version.  I do not think that is correct and I have not read it as such.  It appears to this court that paragraphs 35‑37 are all that the learned magistrate felt was necessary in respect of recounting the appellant’s case and that paragraphs 38 and 39 were his findings upon that evidence. They are also not helpful in analysing the basis of his ultimate finding.  What I can ascertain is that he rejected her evidence as unreasonable, illogical and hardly believable.  I would have to speculate as to why for he has not explained the basis for this.

17.  That being the case, I have considered this point afresh as I am required to do.  I have considered the authorities provided by the appellant including R v Falconer-Atlee (1974) 58 Cr App R 348 and HKSAR v Adeola Aremu George supra.  This matter does not stand on all fours with those cases.  There was no risk here that the appellant was not aware of the exact basis of the prosecution case against her by the end of the evidence which was forced in part by her own evidence in respect of the second visit to the shop which had not been adduced in chief.  In any event, her defence remained the same throughout.  Had she had the opportunity to ask for the recall of PW1 and PW2, I believe that may very well have been to her detriment.  But even if they had been recalled and mentioned her standing at the entrance of the Emporium for a short while before she moved on to location 3, I do not see how that materially affected her defence.  This issue did not require an amendment to the charge.  Her intention to pay at a later stage was a continuing one.  I note that the primary case of the prosecution remained the same as it has on appeal.  It is an alternative in answer to the defence case and was clearly put on that basis.

18.  Grounds 2‑5 are all premised upon the same argument.  That is that the learned magistrate should have focused upon each element of the offence and identified that which was directly proved from the facts and that which was proved from an irresistible inference.  In both cases he should have identified the facts relied upon.  It is not incumbent upon him when drafting his Statement of Findings to canvass all of the evidence adduced or to say why in each and every instance he accepts or rejects that evidence but his reasoning should be related to relevant admissible evidence in such a way that the appellate court can ascertain the process by which he came to his finding of guilt.  Given that the issue was for all intents and purposes that the appellant intended to pay and believed she could pay at a later stage, then it was necessary for the learned magistrate to explain why it was he did not believe her explanation to be true or may have been true.  He did not do that despite there being ample evidence from the appellant and DW2 as to why that may be the case.  If he was to reject that evidence, it was incumbent upon him to explain why for there was no evidence from the prosecution in this respect.

19.  I must note here that having considered the evidence afresh, I find that it was incumbent upon the prosecution to prove beyond reasonable doubt that the appellant had no intention to pay and that she did not have a bona fide belief that she could pay at a later stage.  This they did not do.

Consideration of the Facts

20.  The appellant was a woman of 53 years of age and of positive previous good character who is clearly a devotee of Disneyland and who has spent a considerable amount of money in that theme park since its inception.  She therefore had considerable experience of shopping practice which was not adequately canvassed if it was to be proved by the prosecution that she had no intention to pay.  I note that she was carrying the bag of candy in plain view at all times and did not stray very far from the Emporium even when she was searching for promotional stickers. Although she returned to the Emporium, she did not get further than the entrance to that shop when her mother wondered off.  It was entirely plausible that she would have been concerned not to lose sight of her mother as she was deaf and she would not have been able to shout to find her.

21.  Only 16 minutes passed between the taking of the bag and her interception.  She was clearly involved in the collection of stickers and had not passed into another zone entirely before being stopped. From what I can ascertain, she was still only a few metres away from the shop at that time.  None of the above appears to the undersigned to be illogical, unreasonable or hardly believable.

22.  Whether she made the statement to PW1 and PW2 that she had forgotten to pay or whether she said nothing at all, there was little evidence upon which the prosecution could rely to ask the learned magistrate to draw an irresistible inference that she had no intention to pay.

23.  I find that there was not only one irresistible inference which could be drawn from the facts as I have found them to be.  I do not believe that sufficient consideration was given to the positive good character of this 53‑year‑old appellant, who as a nurse has served the community her whole working life, nor to her previous attendance at Disneyland, her knowledge of it or the vast amounts of money she expended there between 2014 and 2016.  Whilst I understand the need for Disneyland to implement a zero tolerance policy to shop lifting, I take the view that there will always be exceptions to the rule and that the prosecution of this lady is tragic.  She was a fan of Disneyland and clearly spent considerable amount of time there.  This prosecution has no doubt tainted irrevocably her interest in it.

Conclusion

24.  For the reasons given above this appeal is allowed. The conviction is quashed and the sentence set aside.  Costs of the appeal be to the appellant with certificate for two counsel.