HKSAR v. LEUNG CHIN HO

HCMA 1199/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1199 OF 2002

(ON APPEAL FROM KCCC 17687/2002)

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J U D G M E N T

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1. This is an appeal against conviction for an offence of theft. It was said that the appellant had stolen two cans of milk powder from a Watson's store.

2. The facts giving rise to the charge can be summarised shortly in this way: that a shop assistant in Watson's, who was the first prosecution witness, said that she saw the appellant take two cans of milk powder from a shelf where it was displayed. She saw him then walk with the cans to a shelf where toothpaste products were on display. She saw the appellant squat in front of that shelf. She was standing about 3 feet away from the appellant when she saw him put two cans of milk powder into the waistbag which he was wearing. He then zipped the bag shut with the two cans inside. She had then to attend to her duties as a cashier, so she told a colleague what she had seen which specifically included - and this is at page 10 of the transcript - telling that colleague that she had seen the defendant putting two cans of milk powder into his waistbag. She described in her evidence the placing of those two cans into the waistbag occurring not in one action but in two actions.

3. Accordingly, the colleague to whom she had made the report, who was the second prosecution witness, approached the appellant at the toothpaste counter, saw him then stand up and go to the exit of the shop. She followed him. At the door, she asked if she could check his waistbag. He ignored her. She followed him. She asked again to check and, on being ignored the second time, tried to stop his advance by pulling at his clothes. The appellant broke the hold and ran out of the shop.

4. There was a chase. A member of the public was involved and the police were. The waistbag fell from the waist of the appellant as he was running away. It was picked up and opened by the policeman in the presence of the appellant when he was apprehended in the street. Inside were two cans of milk powder. He claimed that he bought them and that they were his, and that he had bought them at a different shop on an earlier occasion.

5. That is a very familiar scenario and the case would normally turn entirely on the question of whether the magistrate was sure that the observing witness who saw the two cans put into the waistbag was both honest and accurate. The magistrate did make that finding in this case.

6. This case is complicated by the fact that the appellant was able to produce a receipt dated that same day for the purchase of two identical cans of the same sort of milk powder but from a different shop, one in Mei Foo Sun Tsuen. The lady who sold such items at that shop was called as a witness at the trial and, even though she had not remembered him on an earlier occasion, at the trial she did remember that this appellant was the man who had come in that day to her shop and bought two such cans of milk powder.

7. The case is also complicated by the fact that Watson's had a fairly elaborate system of labelling their goods with security in mind. Attached to items such as these would be a little plastic bar just over an inch long with a barcode on it which has been referred to as the security tag. The well-known purpose of such tags is that if you do not have them removed when you pay for the goods, they set off an alarm as you leave the store.

8. The evidence was also that it was the practice of Watson's to stick on a label described as an "easy break label", and the point of this was that it was difficult to remove. If you tried to pull it off, it could break into little pieces. It was also the practice of the store to write on the easy break label, in handwriting, a code which identified the particular store in question. In this case the code was 401JBP.

9. Now, when the appellant had left this store, no alarm had sounded. When the second prosecution witness went back into the store and looked at the place where the appellant had been squatting down by the toothpaste, she found two little booklets. These were not produced at the trial because they had been sent off for fingerprinting. A photocopy of their front and back, but in folded-up form, was put in evidence without dispute. The evidence of the witness was that, on them, there was a security tag and/or an easy break label. It is quite clear that the items recovered from the waistbag of the appellant had neither booklets nor any labels attached to them.

10. The bull point for the appellant in this appeal today is to say the magistrate should not have placed such weight as he did on the first prosecution witness's observation. He should have countenanced that she acted on assumption, or made a mistake, and that he should have been fortified in taking that view of her evidence by the fact that there were no markings on the items recovered from the appellant's waistbag and that, given the design of the easy break label and its whole purpose of not being easy to remove, there was no scope for the appellant to have removed one in the store. There was evidence led at the trial below that importance was attached by the staff to sticking these labels on the cans and they got into trouble and were eventually dismissed if they failed to do so.

11. Significantly, a question was asked at the trial concerning what happened if the labels were used up - that is the easy break labels. The answer was that the staff then wrote "JBP" or "401" on the tag - that is the security tag. It was then made quite clear - and this is at page 54 of the transcript - that in those circumstances, milk powder cans could be sold without the easy stick label.

12. Now, today in court, the respondents told both the court and counsel for the appellant that the booklets had been returned from the Fingerprint Bureau and were now available. The plastic bag in which such items are customarily kept was opened in court. Counsel looked at the material briefly and handed it in. Counsel for the appellant wanted me to receive them now in evidence. Counsel for the respondent agreed to that. The point being made was that there was no easy break sticker on the booklet, just the security tag. But what then became apparent was that, in small writing, looking like it was written by a biro, on both of these security tags were the letters "JBP".

13. Given the evidence to which I have already referred, it then became an overwhelming inference that these particular two tins had never had the easy stick label applied to them because the initials JBP were put on the security tag and the evidence was that happened when they had run out of the sticky labels.

14. The significance of that finding here today obviously was not lost on counsel for the appellant and he said, "Well, be generous, you've only found that out now, don't act on it. Or if you want to act on it, then let me have witnesses recalled and reopen the matter". It seems to me there is no good reason not to act upon it. The material is before me. There is no case in justice to reopen the matter because it was always the case in the court below that the evidence allowed for there being just the security tag and not the sticky label.

15. However, in an endeavour to be as fair as I can, I will also decide this case without reference to finding those letters on the security tag here, and so I then go back to how the case appeared to the magistrate. Before him - and this is important and something I have not yet mentioned - there was no evidence called by the defence. It meant that the evidence of the first prosecution witness was uncontradicted and unexplained by direct evidence. Obviously the failure of the appellant to give evidence is of itself no evidence of guilt. That goes without saying. But the usual consequences of failing to say something did not happen when that is your case, when a perfectly believable witness says it did happen, are both usual and obvious.

16. The magistrate left it like this in his mind, that, such was his view of the accuracy of the first prosecution witness, the inability to say for sure what happened to any easy stick label that may have been put on the can did not raise any doubt as to the finding he made that the two cans in the waistbag out in the street were the two cans that had come from the shelf in the shop.

17. What has been urged in argument upon me today by Mr Mitchell-Heggs, counsel for the appellant, is that the suspicious behaviour of the appellant in the shop could have been explained by the fact that what he wanted to do, and was in fact attempting to do, was to steal the little booklets that come with the milk powder. He also says that if that was the case, it put the appellant in a difficult position in the trial court when it came to deciding whether to give evidence, because, if that was the case, it meant his defence to the charge of stealing the two cans of milk powder would have revealed that he was attempting to steal the booklets and he could have been convicted of that. I find that argument to be one that has wholly lost any contact with reality. The idea that a man goes to steal booklets like this is one that is, frankly, unworthy of belief. Whilst they are written in Chinese, one can tell from just their form that they are the usual thing that tells you what to do with baby milk, with some sort of advertising attached to it. Both the booklets are a single sheet of paper printed on both sides, about half the size of an A4 sheet.

18. No one who has sat in the magistracy in Hong Kong can have failed to have noticed the frequency with which thieves choose to steal powdered milk. No magistrate is going to shut his eyes to that. Even without that special knowledge, the one object is obviously much the more desirable to a thief than the other. But it is a matter of common knowledge that items such as these do attract thieves and it is obviously because of their ease of disposal, and that is something the magistrate would have been entitled to take into account. He may have done. He does not mention it specifically in his statements of findings but it is certainly something I know and, I suggest, every criminal lawyer in Hong Kong knows.

19. Even if that were not a correct assessment, one only has to look at this: on the appellant's case, what was the appellant doing, going into a Watson's shop with his - as he would have it - his innocently-purchased cans still in his waistbag? What is his explanation for that? The receipt for that purchase was found at his home which obviously meant that some time between, on his case, buying the two cans innocently, he had gone home to put the receipt there before going out with the cans still in his waistbag to the Watson's shop, where he was arrested.

20. His first explanation to the police was that he had made the purchase so to give it to a friend in the mainland. His second explanation was that he himself had a child in the mainland and therefore was going to carry it there for the child that very day. When it was pointed out to him that he did not have the papers, a re-entry permit, to leave Hong Kong that day on him, his response was to say that he had just lost it. The relation of that short story only has to be made to reveal its inherent weakness.

21. This case, on either basis, rested entirely on the magistrate accepting the evidence of the first prosecution witness. That is the root from which the case for conviction grows. Of course the magistrate was in a much better position than I am to assess that witness, having seen and heard the witness. It is right that he asked the witness quite a lot of questions as to exactly how it was that she could be in a position to see, with the clarity she claimed, the appellant putting the two cans separately into his waistbag. Reading the transcript, he was at pains to elucidate from her exactly how that had come about. My reading of the transcript demonstrates that she satisfied him that she was able to see that which she claims and that there was no scope for mistake.

22. It is said that she may have assumed that this man was a thief, especially so because of the finding of the booklets divorced from the tin. The fact is she told the second prosecution witness, before the booklets were found, that she had seen the man in question put two tins into his waistbag.

23. There is nothing in the evidence or the argument before me today that makes me doubt that the magistrate's assessment of the witness was anything but fair and accurate. Accordingly, there is nothing that persuades me that that witness was not to be relied upon. If she was right, then the chain was set up. Two cans and not four cans were found in the waistbag and they must have been the cans that came from the shelf at Watson's.

24. The magistrate did not have to, but he dealt with the question of why would the appellant have gone and purchased two cans of milk powder earlier that same day. He took the view that it was all part of the pre-planning of a deliberate shoplifting expedition. All I need say is, on the evidence before me, I agree with that assessment.

25. Accordingly, in those circumstances, the order I shall make today is one confirming the conviction. There is no appeal against the sentence.