HKSAR v. CHEUNG CHI PING

HCMA206/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 206 OF 1998

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J U D G M E N T

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1. The Defendant was convicted of one count of theft in the South Kowloon Magistrate's Court on the 26th January 1998. He was fined $1,500 and ordered to pay $500 in costs.

2. The prosecution's case was that the Defendant stole or shoplifted a key holder worth $88 from a Shop named Yes Station on the 25th November 1997.

3. The Defendant, who was represented at the trial, did not deny taking the key holder. He gave evidence that he had an eye infection on the day and he was tired. He had been looking for an alarm clock, but could not find a suitable one and found the key holder which was meant for his girl friend.

4. He had tucked the key holder in his waistband because he had to use his hands to get hold of other items on some shelves. The key holder was very visible from his waistband.

5. Later he left the shop and as he says, he forgot to pay. When he heard the shop alarm ring, he went back into the shop to pay for it.

6. There was some dispute as to the evidence. A Miss Wong, who works in the shop, heard the alarm and claims that she had to ask the Defendant to return to the shop and she saw the key holder tucked under the front waistband of the Defendant's trousers. The Defendant's evidence was that when he heard the alarm, it triggered that he had not paid for the key holder which he then took out, went back into the shop and said that he had forgotten to pay.

7. The magistrate did not believe him. She relied a great deal on the demeanour of the Defendant and Miss Wong. Excessive reliance on the demeanour of the Defendant to disbelieve his evidence can be a dangerous practice.

8. Furthermore, and this troubles me a great deal, the learned magistrate did not appear to have taken into account the previous good character of the Defendant in assessing his credibility. This is unfortunate.

9. The Defendant was, and is, a third year student at the Hong Kong Polytechnic University. He was carrying a very large black shoulder bag at the time. Far less awkward, as it seems to me, would it have been for him have put the key holder into the bag if he had the dishonest intent attributed to him; far less obvious too, in my view, than tucking it under the waistband of his trousers, leaving most of it visible.

10. In the end, I have to say I am left with a real doubt as to the Defendant's guilt and this appeal must, in my judgment, be allowed.