R. v. CHAN YICK CHUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1162 OF 1996

______________

______________

______________

J U D G M E N T

______________

1. The appellant originally faced one charge of being a member of a triad society and two charges of robbery alleged to have been committed on 2nd January 1996 and 5th February 1996. He was acquitted of the 2nd February 1996 robbery charge and the triad membership charge. The magistrate also acquitted him of the 5th February 1996 robbery but convicted him of theft.

2. The theft was of a windbreaker from the P & L shop at 31, Tak Man Street, G/F, Kowloon. The magistrate relied on the evidence of PW2, a salesman employed at the shop at the time. The evidence was that on 5th February 1996 at about 4 pm the witness saw four males come into the shop and one of them tried on a windbreaker priced at $398. That person offered $100 which was refused by the witness. There was mention of the words "tor tei" which frightened the witness. The witness then saw another male in the group who was subsequently identified by the witness as the appellant, take off his upper garment and tried on a garment belonging to the shop. This new garment with a price tag of $398 was similar in style to the garment the appellant had taken off. At that point of time, all four said they had to go to work and they left with the appellant wearing the new garment, leaving his old garment in the shop. The witness then kept the old garment in a bag and later handed it to the police. The witness said he did not chase after the appellant. The appellant's old garment was produced as exhibit in the trial. Expert evidence was heard to the effect that "tor tei" is a triad term meaning protector of a new member.

3. The witness agreed that the shop allowed part-exchange of old garments for new garments under certain circumstances.

4. The appellant gave no evidence.

5. The magistrate accepted the evidence of PW2 and found that the appellant had "stolen the jacket specified in the charge by simply putting it on and walking away with it without paying".

6. The appellant appealed against conviction. The first ground of appeal is that the magistrate did not make any finding as to dishonesty on the part of the appellant.

7. Reliance is made by the appellant on R. v. Ng Shui Sang and Ip Wai Hing MA 812/94 where it was held that taking away property belonging to another without consent of the owner per se would not establish dishonesty and the accused's belief in a claim of right in law is a factor in the consideration of the issue of dishonesty. This principle in law is not in dispute.

8. However, there was nothing in the present case which indicated that the appellant honestly believed or might have believed that he had a claim of right in law. It is implicit from the magistrate's finding that the appellant simply put on the garment with a price tag of $398 attached to it and walked away without paying for it, that the appellant had no intention to pay for it and was acting dishonestly.

9. The second ground of appeal was that the magistrate did not consider the shop permitted part-exchange and there was no evidence showing the witness did not allow the appellant to exchange the jacket. Further the other sales lady on duty at the time was not called to give evidence.

10. There is no merit in this ground of appeal. The evidence is that the shop would only allow part-exchange under certain circumstances. In any case, the evidence did not show it was an exchange. It was only the appellant himself putting on the new garment and discarding his old one. The magistrate had also considered the mistake made by PW2 when he came to identify the discarded jacket of the appellant. The magistrate accepted this was a mistake in the witness' memory and that did not vitiate his veracity.

11. On the evidence before him which he accepted, the magistrate was entitled to convict the appellant. The appellant against conviction is dismissed.