HKSAR v. TO BOON MING, LAWRENCE

HCMA984/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.984 OF 2001

(ON APPEAL FROM ESCC 1166/2001)

---------------

--------------

-------------------------

J U D G M E N T

-------------------------

1. The applicant was convicted of one charge of theft on 10 July 2001 and was sentenced on the same day to a fine of $3,000.

2. The case for the prosecution was that the appellant was seen by a security staff member at Wellcome Company Limited in a supermarket to select the items referred to in the charge and to place them in his pocket. He then, it was alleged, was seen to leave the store without making payment. It was the case for the prosecution that he made admissions upon apprehension outside the store and also to the police officer who was called to the scene.

3. The appellant gave evidence as did his nine-year old son. It was their evidence that the appellant was selecting items from shelves in the store when his son went to the doorway of the store to consume a drink which he had purchased.

4. The appellant testified that he saw his son leave the doorway of the store and he feared for the son's safety. He then left the store, running after his son to prevent him coming to harm forgetting, in the course of doing that, to pay for the items which he said he still held in his hand until he apprehended his son when he placed the items in his pocket.

5. The appellant raises 10 points. In considering these points, I must do so in the framework that an appellate court does not retry a case. It is not for the appellate court to put itself in the place of the magistrate and to reassess the credit of witnesses and the manner in which it would evaluate evidence in the court below. It is for the appellate court to consider all that occurred in the court below together with the findings of the magistrate and to determine whether the magistrate has proceeded on a proper basis in his approach to the facts and to the law.

6. The first point raised by the appellant is that during the evidence of the security officer, who was PW1, she said that she was standing some 4 ft to the left of the appellant when he was said to have taken items from a rack and placed them in a pocket of his jacket. The appellant makes the point that from the sketch before the magistrate, it would have been impossible for a witness standing in the position specified by PW1 to have seen the act of placing an item in a pocket.

7. This argument was specifically raised in the address by counsel representing the appellant at trial. It was in the forefront of the mind of the magistrate when he considered the evidence. It is common sense that it is not necessary to see the complete act of placing an item in a pocket to be able from the general action of such a person viewed from various angles to draw the conclusion that an item was being placed in a pocket. I am satisfied that the magistrate directed his mind of this issue and was entitled to come to the conclusion that he did.

8. The second matter raised by the appellant was that it was the evidence of PW1 that, outside the store, the appellant ran. She said she was some 10 to 20 ft from him and that she called him when she had run for 20 ft. The appellant makes the point that she being at 20 ft she could not have caught him in that distance. This was an estimate quite clearly and estimation are not necessarily wholly accurate.

9. To draw conclusions from estimated distances very often lead to what appeared to be fallacies. I am not satisfied that this apparent contradiction is one which requires the magistrate to have a doubt in respect of the evidence of PW1.

10. The third point made by the appellant is that he had taken his 9-year old son to the supermarket and it is accepted on the evidence that upon the return of the appellant and PW1 to the supermarket the boy was standing at the doorway. The appellant makes that point and it has some force that had he stolen goods and left the shop, he would not then run away leaving his son standing outside the store. The appellant says that there is no evidence to indicate that he ought to have been aware that he was being pursued and that in all the circumstances his actions do not make sense in the context of a theft and the magistrate ought to have a doubt.

11. The facts are that PW1 was in pursuit. The magistrate had all of this evidence before him and the benefits of being able to see and hear the witnesses give evidence. He did not find the appellant nor his son to have credits in their evidence and was entitled to come to the conclusion that PW1 was an honest witness and that whether or not it seems somewhat inconsistent that these were the facts as they actually occurred.

12. Item 4 relates to the same matter and does not need to be repeated.

13. In item 5 the appellant complains that the internal report made at the scene and the statement made by PW1 to the police were in almost the same words. Both the statements were the creation of PW1. It is common in these courts to have a complaint made that where statements differ, they cannot be relied upon and that the same applies when both state merits. Where the facts are simple, the person giving the statement is used to doing so and the statements are for the same purpose, it comes with no surprise that the wording will be the same.

14. Ground 6, the appellant complains that the magistrate unfairly particularized his son's evidence as unreliable and that he did not believe it. Again the magistrate had the benefit of seeing and hearing that evidence, he found that it was fluent and confident in chief and hesitant and uncertain in cross-examination. He took into account the evidence from the son that he had discussed the matter with his father, who helped him to memorize his evidence. He drew inferences from what he said were looks for approval from the son to the father as he gave his answers in cross-examination and overall, came to the view from the manner and the nature of the evidence of the son that he was unable to accept it and he set it aside. I would say here that at this point in his argument Mr To, the appellant, has alleged that the magistrate was biased against him and that he selected only evidence against the appellant in coming to his conclusion. The magistrate in very lengthy and detailed reasons has set out all the evidence and the issues before him. There is no appearance of any selection of particular evidence and where the magistrate rejects evidence he gives his reasons for doing so as he does for evidence which he accepts. There is nothing in the findings nor in the transcript before me to indicate any bias on his part.

15. The next item relates also to the manner in which the son gave evidence and does not require further detail.

16. The eighth item also goes to whether or not a nine-year old son would be left in the street and whether as a father would chase after him. There the appellant suggests that the magistrate may have had a difference in culture and not have understood the desire to protect the son. Again, all this evidence was clearly before the magistrate and considered by him.

17. The ninth complaint was that the magistrate did not fully consider the clear record of the appellant and his previous background of assistance to the police. These together with the approach to be properly adopted by the magistrate are fully set out in the findings.

18. The last complaint is that the magistrate did not fully consider the medical condition of the appellant. Before the magistrate was evidence that on 31 March, some seven days prior to this event, the appellant had been to a doctor but had not been given any sick leave. He had been given medication which he accepted he had been, on occasions, too busy to take or to have forgotten to take to the office. The magistrate drew the conclusion firstly that the illness was not severe at the time he attended the doctor and the further conclusion that it was even less serious at the time of this event. This is a common sense approach available on the evidence.

19. I am satisfied that the magistrate has properly approached both the evidence and the law. All the matters raised by the appellant are matters of fact well within the province in the magistrate and unless it can be seen that the magistrate has been in error, I will not exercise my discretion to reverse his decision. The appeal against conviction must fail and is dismissed.