HKSAR v. CHAN SIU LING

HCMA927/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.927 OF 2003)

(ON APPEAL FROM TWCC 1278 OF 2003)

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J U D G M E N T

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1. The appellant was convicted by Magistrate Glass on 28 August 2003 of one charge of theft. She was sentenced on the same day to a fine of $2,000.00. She now appeals that conviction.

2. The case of the prosecution was that the appellant had shoplifted three packets of noodles valued at $22.90 from a supermarket. PW1 said that he had seen the appellant tear something open and put the contents from what she tore into her bag and throw the packaging onto the floor. He said that she had then proceeded to pay for the items that she had inside a supermarket shopping basket but not for the items in her shoulder bag. She was stopped and it was the evidence of this witness that she said she had been given the noodles found in her shoulder bag by her mother. PW2 was the police officer who was called to the scene and who arrested the appellant.

3. The appellant elected to give evidence and said that she had been shopping with her son in the supermarket and that he had taken her shoulder bag and left her to play with a friend whom he met in the supermarket. She continued to shop. She met up with her son again when they went to the cashier. She said that she did not know that the noodles had been placed inside her shoulder bag and therefore only paid for the items in her supermarket shopping basket. She denied that she had torn open a bag and put the contents into her shoulder bag.

4. The magistrate, having warned himself of the good character of the appellant, disbelieved her evidence and rejected it as being evidence which could or might be true and which would therefore be available to him to raise a doubt in respect of the evidence of the prosecution.

5. The 1st ground of appeal is that the conviction was unsafe and unsatisfactory because the trial magistrate failed to follow the evidence properly and thus wrongly disbelieved the appellant. In his findings, the magistrate said :

" The defendant said in evidence that after she had received the shoulder bag from her son, she went to the cashier to pay. She said she had taken her wallet out of the bag in order to pay for the items in her supermarket-shopping basket. I found that if that had been the truth, she could not have missed the packets of noodles that were inside the shoulder bag as I found the shoulder bag design was such that she would have noticed them."

Mr Grounds for the appellant argues that the appellant testified both in examination-in-chief and in cross-examination that before she handed her shoulder bag to her son before he went out to play she took her wallet out from the shoulder bag for her own use. He argues that upon receiving the shoulder bag from her son she did not open the bag to obtain her wallet because she had already taken her wallet out from the shoulder bag and that thereby the magistrate wrongly failed to properly follow the evidence.

6. In her evidence the appellant said this :

"I did not know what happened previously. I got my handbag back and then I took out my wallet to pay for the items. When I was out there, he asked me to open my bag for him to have a look. I did not know what the matter was."

Earlier she had said that when she handed the handbag to her son she took out her wallet for her own use.

7. Whilst it may be argued that the evidence was equivocal from where the appellant took out her wallet the magistrate was entitled, in all the circumstances, to find that she had taken it out from the bag. The witness was silent as to whether she had replaced the wallet in the bag. From her description earlier as to what she was carrying it is clear that she was only carrying one bag throughout the incident.

8. Having made the finding that the wallet came from her bag, the statement by the magistrate that the witness would have seen the bags of noodles had they been in her bag was no more than common sense.

9. The 2nd ground of appeal is that it was a material irregularity for the fact that PW1's clear criminal record to be admitted into evidence.

10. No objection was taken by the defence in the court below to the admission of this evidence and it is clear from the manner in which the magistrate approached the evidence that he made his own evaluation as to the credit of PW1. There is nothing in this ground of appeal.

11. In ground 3 Mr Grounds argues that by virtue of the admission of the good character of PW1 into the evidence, which I have dealt above, the magistrate placed undue weight and reliance on the evidence of PW1 and prejudged his veracity before the evidence was completed and before final submissions were made and wrongly resolved discrepancies in his evidence in a manner that was unsafe and unsatisfactory.

12. There were undoubted inconsistencies in the evidence of PW1. Throughout his examination-in-chief he testified that he saw the appellant take the noodles from the rack in which they were kept and then subsequently saw her rip open the packet and place the noodles in her bag. After the preparation of a sketch and cross-examination the witness admitted that he did not see the appellant take the noodles but only saw her tear open the bag. I note here that the torn bag which would have contained noodles of the same type as were found in the bag of the appellant was produced at trial.

13. The magistrate was alert to this inconsistency and found in favour of the appellant that the witness had not actually seen the noodles taken from the freezer rack but found that he had seen the appellant in that area and seen something in her possession which he said he later saw her tear open and put the contents in her shoulder bag and drop the torn outside bag on the ground. He ascribed these discrepancies to a difficulty in the witness in expressing himself precisely and due to misunderstanding between the prosecutor and PW1 in the course of the evidence.

14. Mr Grounds also criticizes that the magistrate in his finding that the cashier desk was longer than just the cash register part notwithstanding there was no specific evidence concerning the length of that desk or photographs.

15. I accept that this evidence was not specifically given but do not see that it is material to the magistrate's decision.

16. A further contradiction arose between the evidence of PW1 and that of PW2. PW1 testifies as follows :

"When she was making her statement to the police officer, it seemed that ― no, I am sure that she said to him, 'Please, give me a chance. Please, let me go."

PW1 also said in cross-examination that the words "give me a chance" were said by the appellant to the police officer and to his manager. PW2 in his evidence said that the appellant had not said "give me a chance, let me go" or any words to that effect.

17. The magistrate said this in his findings :

"... I found that I believed the defendant had made such statements whilst she was at the store, and I believed that this statement was in fact intended for the store manager and not the police officer as I found he was the person who could allow the matter to pass without the police taking action. I found I disbelieved the police officer when he said it had not been said. ..."

18. It is rare that where a magistrate faced with an inconsistency between two witnesses makes a decision as to what was the truth based upon his observation of the witnesses in the hearing and on the whole of the evidence an appellate court will not disturb this finding of fact. I am satisfied that the magistrate was properly seized of this case and that the appellant was well represented. The magistrate resolved this discrepancy by believing PW1 and disbelieving PW2. He was entitled to do so and I will not disturb that decision.

19. The 4th ground of appeal is that the magistrate erred both in law and in his Statement of Findings in that he found the prosecution case proved before he had evaluated the evidence of PW1 which indicated he wrongly placed the burden on the appellant to prove her innocence pre-judged matters and rejected the evidence of the appellant because he had already accepted that of PW1.

20. Having carefully considered the arguments from Mr Grounds, that of Ms Shine and having read the Statement of Findings of the magistrate I do not accept that the magistrate either placed a burden on the appellant to prove her innocence pre-judged matters or rejected the evidence of the appellant because he had already accepted that of PW1. The magistrate considered carefully the evidence of each of these witnesses. He bore in mind the burden and standard of proof and properly directed himself as to the approach to be adopted in dealing with discrepancies. He dealt with those discrepancies and inconsistencies in a proper and fitting manner and a suggestion that by virtue of the order in which he dealt with matters in his Statement of Findings I must presume that he pre-judged or prejudiced the case against the appellant or placed any burden of proof upon her is not one borne out by a reading of the Statement of Findings as a whole.

21. The last ground of appeal is that the conviction is unsafe and unsatisfactory and that I ought to have a lurking doubt in respect of its correctness.

22. I am satisfied that the reasons given for his findings the magistrate dealt appropriately with the circumstances of the case and dealt with all the points which he ought to have considered. He dealt with the inconsistencies and conflicts and stated the reasons for his findings to a sufficient extent to inform the parties as to how and why the verdict was arrived at. I have no lurking doubt in respect of this matter and the appeal against conviction is dismissed.