THE QUEEN v. WONG LAI HING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 746 OF 1988

_____________

_______________

J U D G M E N T

_______________

1. The Appellant pleaded not guilty to a charge of theft which alleged he shoplifted some grocery items from a supermarket on the February 1988. In outlining the evidence given at the trial I can do no better than quote verbatim from the learned magistrate's Statement of Findings as follows:

"PW1, a plain-clothed Security Officer, was on duty inside the supermarkeet of the Yaoham Departmental Store at New Town Plaza, Shatin on the 1st February 1988 when he saw the appellant take four packets of fish from the frozen meat and fish section and put  them into a single deck shopper's trolley. After leaving that display the appellant unzipped a black bag (Exh. Pl.) which was inside the trolley and put the four packets of fish into Pl. The appellant also took a packet of dried seaweed from the Japanese fish section, put that onto the trolley and then transferred that into P1. The appellant eventually went to the cashier which she paid for some items in the trolley but not for the four packets of fish and the packet of seaweed inside Pl. After packing up her items at the packing table she wanted to leave but was intercepted by PW1. After checking that the five items were inside Pl, PW1 took the appellant to the officer. A report was made to the police, and the appellant was later arrested. PW2 was one of the police officers who went to the office of the Yaoham Store on 1st February where he saw PW1, the appellant another man. After a complaint of theft was made the appellant was arrested, and P1 was seized from her. PW2 saw four packets of fish and one packet of dried seaweed on the table in the office. PW3 photographed the fish and the dried seaweed in the appellant's presence. Those photographs were not produced. The Appellant agreed taking the fish and the dried seaweed from the store. She denied placing them in PI, said she used a two basket trolley, the others were placed in the lower basket and were overlooked both by her and the cashier when she paid for other items. She said when he stopped her PW1 pointed out those items in the bottom of the trolley. She merely admitted that she had for then to pay and would now pay, but PW1 would not listen and they both went to the office. She denied stealing .the items and said PW1 had wronged her. The appellant's daughter PW2 produced photographs she had taken at the Yaoham Store on the 5th June J988 showing shopping trolleys with an upper and lower basket."

   The learned magistrate went on to make a number of findings of fact which amounted to proof of the charge. In making those findings he relied principally on the evidence of the Security Officer having found him to be "a thoroughly honest and competent witness". He rejected the appellant's evidence that the articles not paid for were in the lower basket of the trolley when she left the cash register counter.He convicted her and she now appeals against that conviction.

2. Eleven grounds of appeal were drafted by her Counsel who appeared for her at the trial. Mr. Howard, as leading counsel for her today, confines himself to one principal ground, namely, there were discrepancies in the evidence of the security guard to which the learned magistrate did not address his mind, and if he had, he would not have been so ready to damnify the appellant's case at the trial as a "manufactured defence".

3. There was such a direct conflict between the evidence of the security guard and that of the appellant as to where the unpaid articles were when she left the cashier counter that there was no room for holding that the guard could have been mistaken. He was either telling the truth when he said the goods were in the appellant's bag or he was lying when he said they were there when they were not. His evidence of his observation of the appellant before she went to the cashier was credible because the sequence of the appellant's movements and actions he described - except as to the placing of the goods in the bag - coincided with her evidence of that sequence. But whereas she said she unfastened the bag to extract money, he said she unfastened it and placed the goods inside. The security guard's conduct, confirmed as it was to some extent by the police officer who was called to the scene, was consistent with an allegation from the beginning of their confrontation that the appellant had unpaid goods in the bag -  not that she merely had unpaid for goods in her possession. The learned magistrate having formed the impression that he was truthful and the appellant untruthful had, therefore, no alternative but to accept his evidence, and I do not see how that finding can be upset because there are discrepancies which Mr. Howard concedes are insufficient on their own to discredit him.

4. Whilst the learned magistrate did find fault with the appellant's evidence and the presentation of the defence case in stronger terms than might be thought wise when viewed with judicial hindsight, he was, it must be remembered, then dealing with a defence case which was untenable, once the security officer's evidence was accepted as truthful.

5. Mr. Howard has taken me through the whole of the evidence. I do not see how the learned magistrate having formed such a favourable impression of the security guard as a witness could have come to any other conclusion than that the charge was proved.

6. The grounds pleaded but which Mr. Howard did not advance were in my view adequately dealt with in the learned magistrate's Statement of Findings. There is no justification for my interference with the learned magistrate's verdict so I must dismiss the appeal.