THE QUEEN v. HUI TIN YAU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 842 OF 1987

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J U D G M E N T

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1. The appellant was convicted of obtaining property by deception, contrary to section 17(1) of the Theft Ordinance.

2. The facts, as taken from the magistrate’s Statement of Findings, were as follows:-

“P.W.1, a South African visitor to Hong Kong, went to the De Luxe Camera and Video Supplies Company at 71 Nathan Road at about 9:10 p.m. on 2nd September 1987. He asked the Appellant, one of the shop assistants, to show him a Toshiba Video Camera (Exhibit P.2) which was in the shop window. The Appellant took Exhibit P.2 from the window and, when P.W.1 asked the price of the complete camera and accessories, told him it was approximately 387 United States Dollars. P.W.1 told the Appellant he only had $2,500 Hong Kong, whereupon the Appellant asked him to show that. When P.W.1 did so the Appellant took the $2,500, passed it immediately to another staff member and handed Exhibit P.2 to P.W.1. When P.W.1 asked where the accessories were, the Appellant told him Exhibit P.2 was all he would get. P.W.1 then requested the return of his $2,500 at which 5 or 6 other shop assistants gathered around him, a receipt was written out, another camera (Exhibit P.3) was taken from behind a counter, forced upon him and he (P.W.1) was forced from the shop.”

“In chief the Appellant said he was an employee of the De Luxe Company. The Appellant entered the shop about 9:30 a.m. on 2nd September 1987 and looked at a Toshiba camera (Exhibit P.2) displayed in the shop window. The Appellant said P.W.1 wanted that camera and after some bargaining the original price of $4,500 Hong Kong. The Appellant said that after P.W.1 handed over $2,500 Hong Kong. P.W.1 looked at Exhibit P.2, felt it was too heavy and asked if there was a smaller camera. He (the Appellant) said he took P.W.1 to the window, pointed out Exhibit P.3 to him and was asked to take that out of the window. The Appellant said P.W.1 then told him Exhibit P.3 was the camera he wanted, asked its price and when he was told $4,500 said he would not pay that to buy a camera end asked for the return of his $2,500. The appellant said he told P.W.1 to take Exhibit P.2 at which P.W.1 said he would go to look for a policeman. The Appellant said he called P.W.1 back, asked him which camera he preferred and was told Exhibit P.3 but only at $2,500 Hong Kong. The Appellant said he then issued a receipt (Exhibit P.1) to P.W.1 who then left with Exhibit P.3 and contended P.W.1 had not mentioned he needed the accessories for Exhibit P.2.”

3. The magistrate made these findings of fact:

“(1) P.W.1 entered the De Luxe Camera and Video Company at about 9:10 p.m. on 2nd September 1987 where he was met by the Appellant, a sales assistant in those premises.

(2) P.W.1 expressed interest in purchasing a video camera and indicated Exhibit P.2 which the Appellant took from the shop window.

(3) In response to P.W.1’s enquiry about the price of the complete camera and accessories the Appellant said it was approximately $387 United States currency.

(4) Upon P.W.1 saying he only had $2,500 the Appellant asked P.W.1 to show him that money and when P.W.1 did so the Appellant took that money.

(5) The Appellant held, by words and deeds represented to P.W.1 he would receive the complete camera, Exhibit P.2, and its accessories for $2,500 Hong Kong.

(6) P.W.1 relied upon that representation.

(7) The Appellant then handed Exhibit P.2 to P.W.1 without accessories, telling P.W.1 that was all he would get, despite his representation P.W.1 would get the camera with accessories for $2,500 Hong Kong, knowing P.W.1 would not accept Exhibit P.2 without its accessories.

(8) The Appellant had no intention to sell Exhibit P.2 to P.W.1 for $2,500 Hong Kong and had dishonestly represented he would do so as a device to obtain P.W.1.'s money, intending to substitute another camera (Exhibit P.3) for Exhibit P.2.

(9) After P.W.1 demanded the return of his $2,500 Hong Kong, the receipt Exhibit P.1 and the camera Exhibit P.3 were forced upon him by the Appellant and other shop assistants and he was expelled from the shop.

(10) P.W.1 did not want Exhibit P.3 and had not agreed to purchase it.

(11) The Appellant had dishonestly obtained $2,500 Hong Kong from P.W.1 with the intention of permanently depriving him of that sum by falsely representing he would sell him Exhibit P.2 for $2,500 Hong Kong currency.

4. The magistrate believe P.W.1 and disbelieved the appellant where his evidence conflicted with that of the former. In particular he was satisfied that P.W.1 had specified the complete Toshiba camera with accessories; he found P.W.1 to be an intelligent man and would not have accepted the camera on its own. He also found that the appellant had represented by words and by conduct to that effect and P.W.1 had acted upon that representation. He concluded that the appellant had no intention of selling Exh. P2 to P.W.1 for $2,500 and that the deliberate withholding of accessories device to create difficulties and lead to the substitution of Exh. P3 for Exh. P2.

5. Mr. Cheng Huan, who appear for the appellant, submits that the magistrate’s 11th finding of fact is sufficient to disturb the conviction, since the appellant was willing to sell Exh. P2 - that is the camera alone - for $2,500.

6. This finding must, however, be read in conjunction with the remainder of the magistrate is reasons and, in particular, the 7th finding, which refers to the representation that P.W.1 would get the camera with accessories.

7. Counsel also complains that the magistrate’s finding that the appellant intended to substitute Exh. P3 was farfetched, since the Victor camera was more expensive than the Toshiba. That, however, was only what the appellant told P.W.1. It does not follow that it is true. Indeed a comparison of the two camera shows the Toshiba to be a much more sophisticated and better quality product than the Victor. There may also have been other reasons why the appellant wished to get rid of Exh. 23 at that price, but not Exh. P2 with the accessories.

8. The magistrate accepted the evidence of P.W.1. All the ingredients of the offence were therefore proved and he was right to convict. The appeal is dismissed.