THE QUEEN v. KONG WAI HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 279 OF 1988

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J U D G M E N T

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1. The appellant was convicted of theft by Mr Meredith on 8th March at Tuen Mun Magistrates Court. It was a case of shoplifting.

2. The appellant is a police officer. He has been in the force for six years and recently completed his probationary period as a Detective Constable. The evidence must be considered with this important fact in mind.

3. On the afternoon of llth December, 1987 the appellant went to Park'n Shop in Ocean Centre Kowloon. He was seen by the Security officer, Miss Fok Po Lin, to take two articles from the medicine counter, peel off the labels and place them under his jacket. He then picked up a bottle of footpowder and again peeled off the label. At this point Miss Fok alerted other members of the staff. The appellant also put the footpowder under his jacket. He then walked to the sweet counter and picked up two items which he placed under the front of his jacket.

4. The appellant joined the queue at the check-out. counter but, when it was his turn to pay, he walked straight through, without tendering the articles to the cashier Outside the shop he was intercepted by Miss Fok and two other staff members. When Miss Fok accused him of stealing, he opened a yellow plastic bag he was carrying and said "These are not yours". He was taken to the manager's office.

5. There were present the manager, Hr Keung Chak Shing, and a training officer, Mr Ng Lok Sun, who happened to be visiting the branch. The appellant was asked to lift his jacket. All five staff members saw various items tucked into the appellant's waistband but not all were able to describe them. The appellant removed the articles from his waistband and placed them on the table. It is not disputed that they were the property of Park'n Shop.

6. There was also a pistol tucked into the appellant's waistband. This prompted the manager to ask for his identity card whereupon the appellant showed him his police warrant card. This was the staff's first indication that they had accused a police officer of theft. it was only after a telephone conversation with her superior in Shatin that Miss Fok rang the police.

7. In due course PC46011 arrived at the shop. There is no dispute that the appellant, at the first opportunity, denied stealing and suggested that the staff of Park'n Shop had deliberately concocted a false story. He went further and alleged that Miss Fok had taken the articles in question from a cabinet in the manager's office before placing them on the table.

8. The appellant gave evidence. He began by saying that neither he, nor his immediate family had any need of the eye drops, deep heat rub or foot powder that he was accused of stealing. He intended to make his career in the police force, he was earning over $6,000 per month and was not in debt.

9. On 11th December he had gone to Park'n Shop to buy a X'mas tree. He was carrying a yellow plastic bag, containing an electronic game and a pencil case, in which there were some dirty socks. His service revolver and holster were attached to his belt. He also wore a waistbag containing $300, a pager and other items He wore a jacket that covered both pistol and waistbag.

10. The appellant had a look around the shop, but did not see any X'mas trees. As he was leaving; the security officer touched his shoulder. Taken aback he said "Police. What is the matter?" At the same time he placed his hand on his revolver. She accused him of theft, whereupon he showed her the contents of his yellow bag. They then went to the office.

11. The appellant opened his waistbag in the presence of the staff and displayed the contents. He told Hiss Fok that, unless she allowed him to leave, he would arrest her for false imprisonment. he suggested she dial 999.

12. According to the appellant; Miss Fok then made a telephone call, in the course of which she reported a theft at Park n Shop. She replaced the receiver, walked to a cabinet in the office, took out a white plastic bag and poured from it onto the table the five articles alleged to have been stolen by the appellant.

13. On this evidence the magistrate made the following findings:-

"1.     P.W.1 was a quiet, even humble lady whose evidence was firm, even resolute. She was honest, accurate and wholly credible.

2.    Though the Manager P.N.5 found himself in a situation, which he found alarming, so that he took only a small part in the events, leaving the matter in the capable hands of P W 1 so that his evidence, once he discovered the suspect was a Policeman was somewhat vague; his evidence and the evidence of P.W.2, 3 and 4 as to items Exs P.2-G coming from the Appellant's waistband onto the table was honest, accurate and wholly credible.

3.    I carefully considered the discrepancies as to details in the evidence of the various Prosecution witnesses elicited and canvassed by the Defence and 1 found that such discrepancies as there were in no way undermined my confidence in the credibility of their evidence, but rather they fortified my said confidence by tending to demonstrate that this was not, as alleged by the Appellant, a false and concocted story, but a true one.

4.    The evidence of P.W.2, 3, 4 and 5, as to events outside the cheek-out and inside the office, supported and corroborated the evidence of P.W.1, in such material particulars which implicated the Appellant. in the offence alleged, that my confidence in her evidence as to events inside the store, as to which P.W.1 was the only witness; was further fortified.

5.The case for the Defence amounted to an allegation that, notwithstanding (nay, in consequence of) the Appellant's threat to arrest her for false imprisonment, P.W.1 compounded her culpability by producing items Exhibits P.2-G from the cabinet and "pouring" them onto the tables; and by falsely accusing the Appellant of stealing the said items, before the very eyes of the said four employees of A S Watson Ltd., without any possibility of there being any prior agreement between the said employees that that should be done; and that P.W.2, 3, 4 and 5, with all their various occupations, comprehensively; consistently and persistently supported P.W.1 in her false account of events in the office.

6.    I was satisfied so that I was sure about it that the Appellant's evidence as to the concoction of the Prosecution Case was dishonest.

7.    The matter hereinbefore set out in paragraph 6 further fortified my confidence in the credibility of the witnesses for the Prosecution.

8.    I was satisfied so that I was sure about it: that the Prosecution had proved each and every ingredient in the offence charged and accordingly the .appellant was convicted."

14. Mr Howard, who also represented the appellant in the court below, attacks the findings of the magistrate in only one respect. Acknowledging that he has evaluated the evidence with care; recognizing that there were discrepancies in the evidence of the prosecution witnesses and has not erred in law, he submits that, because of the highly unusual circumstance of an ambitious young detective being charged with such a crime, he should have placed more weight on the discrepancies. had he done so, counsel suggests; he might have been left with a doubt sufficient to warrant an acquittal.

15. That, with respect, is an approach that is entirely justified in a case such as this, where the career of a young police officer is at stake.  I have had time to look at these discrepancies. As I have said, it is not suggested that they were not all in the mind of the magistrate. The first point is that Miss Fok did not go back to look for the labels on the shop floor until her return from the police station, by which tine they had gone. Had she found the labels, that would have been damning evidence against the appellant. Her excuse for not going to look for them earlier was that she had no opportunity to do so. She said she had to stay in the office with the appellant until the police arrived. Mr Howard is right to emphasise the point. It is quite understandable that she did not attempt to pick up the labels in the presence of the appellant, since this might have alerted him. It is also unsurprising that there was no trace of these tiny pieces of paper an hour or two later. But there is no reason why, after the police had arrived and had questioned the appellant, and before they went to the police station, that she did not find time to go back to the counters in question to look for the labels. But her evidence is that she did not do so; she was not asked why. This is not specifically dealt with by the magistrate. It may be that, in the excitement of the moment; she simply forgot. Nevertheless it is something that an efficient security officer would have done, assuming there was time to leave the office before the party went to the police station.

16. The other principal complaint it is that only one of the five staff members in the office noticed that the appellant was wearing a waist-bag. Counsel for the Crown submits that this may be explained by fear and distraction at the unusual sight of the gun.

17. Even if this is not the case; I think it matters not. These witnesses are either telling the truth or they are lying about what happened in the office. The magistrate accepted the appellant's evidence that he was wearing a waist-bag. But that would not inhibit the placing of the various items in his belt.

18. There were also discrepancies about the appellant's behaviour when first apprehended and as to what was said.

19. The question for this court whether, the correctness of the magistrate's approach notwithstanding, a lurking doubt' remains In R. y. idong U'ah Cnlu⁽¹⁾ Roberts, C J. said at P. S:-

"The Crown case falls or stands on the credibility of this girl. The jury saw her and heard her story dissected in minute detail for 12 days long, enough surely for anybody to form a clear, considered view of the reliability, character and truthfulness of the witness. They must have concluded that-she was worthy of belief in the main essentials of her story. We are asked to say that, although there was no fault in the summing-up or the conduct of the trial; we should conclude that we are uneasy with the verdict and substitute our own, unaccompanied by any of the advantages which flow from an observation of the witness. R v. Cooper says we may do so, R. v. Tang says that we most have a substantial remaining doubt before we do. We do not have any such substantial remaining doubt in this case."

20. The magistrate accepted that these articles were of no use to the appellant, or to his immediate family. People commit crimes for different reasons. Particularly is this true of shoplifters. A magistrate can only act on the evidence.

21. If the appellant is not guilty of this offence, it follows that all five Park'n Shop witnesses are lying on the main issue. Although only Miss Fok observed the actual taking of the articles the other witnesses' evidence that the latter were found in the appellant's waistband is not consistent with innocence.

22. One must ask, therefore, why the prosecution witnesses should lie. Mr Howard suggests that, when the appellant mentioned the possibility of a prosecution for false imprisonment, Miss Fok immediately produced damning evidence from a cabinet in the manager's office, in the shape of the unlabelled articles alleged to have been stolen.

23. Assuming that the manager of Park'n Shop keeps unlabelled stock in his office, it must follow, if the appellant's evidence is true, that he and his staff implicitly acquiesced in Miss Fok's reaction to the appellant's threat - the production from the cabinet of the articles in question - by saying nothing then or later, presumably because they were so alarmed by the threat.

24. The magistrate rejected such a possibility having regard to the fact that there was no scope for prior agreement by the staff that such a course should be taken. Mr Howard points to the evidence of the manager that Miss Fok spoke to him when he was alone in his office at 8:30 p.m and that after a time the staff brought the appellant into his office The appellant said he went to the shop at 4:45 p.m.

25. Even if the times are wrong and Miss Fok reported the matter to the manager before the appellant was brought to his office, it leaves no room for a conspiracy involving all five staff members.

26. Indeed why should there be such a conspiracy? Miss Fok had no reason to lie. She did not receive a bonus for detecting shoplifters. It would be remarkable if the others would go along with such a dangerous charade, solely as a result of threats by a police officer. It is much more likely that the whole thing would be dropped, with apologies to the officer.

27. All these matters were in the mind of the magistrate. In his notes for his oral judgment, when convicting the appellant, he stated that he had resolved any doubtful issue in favour of the appellant and had given his good character weight on the question of credibility. The magistrate showed he was alive to the danger that the discrepancies were due to a deliberate frame-up by the staff of Park'n Shop. At page 8 of his Statement of Findings he said this:-

"I carefully considered the discrepancies as to details in the evidence of the various Prosecution witnesses elicited and canvassed by the Defence and I found that such discrepancies as there were in no way undermined my confidence in the credibility of their evidence, but rather they fortified my said confidence by tending to demonstrate that this was not, as alleged by the Appellant, a false and concocted story, but a true one.

That is all he was required to do.

28. Having considered the matter with care, I an unable to say that the magistrate's treatment of the weaknesses in the prosecution case - such as they were - leaves me with any substantial doubt as to the correctness of the conviction.

29. The magistrate dealt with the case with the utmost care, alive, I am sure, to the improbability of a police officer stealing things he did not need. His reasons for finding the appellant guilty are unassailable. I am satisfied he came to the right conclusion. on the evidence, tragic and inexplicable though it is

30. The appeal is dismissed,

(1) C.A. 980 of 1982