HKSAR v. YU YAN-HUA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 701 OF 1999

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JUDGMENT

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1. The Appellant was convicted after trial of theft of a packet of Chinese medicinal soup from Manning Retail Ltd., valued at $95. At about 5:50 p.m. on 14.6.1999, a plainclothe security guard of Manning (PW1) saw the Appellant pick up a packet of soup and read the description on the packet. Then as the Appellant was picking up the baby with her left arm, she passed the packet to the baby with her right hand. Then the Appellant walked to the stalls displaying infant items. There she took the packet of soup from the baby and put it inside a paper bag hanging from her left arm. She took a bottle of juice from the shelf and gave it to the baby to hold. Then she went to the cashier counter, paid for the bottle of juice and left. PW1 stopped her and told her that there was something she had not paid for. The Appellant apologised and offered to pay. She was escorted to the office where she produced the packet of soup from the paper bag. Soon police arrived and she was taken to the police station. She told PC52259 that the baby took the packet of soup and put it inside her bag without her knowledge.

2. The defence case was that the Appellant was suffering from tonsillitis and had sick leave that day. She had to baby-sit the daughter of her boyfriend's sister. That afternoon, she wanted to go out to check the price of electric fans as her fan had broken down and to photocopy some documents. She had been told that the medicinal soup would help her with her illness. So she went to Manning with the baby to look for the soup. At Manning, as she was reading the description of the soup on the packet, the baby took the packet from her to play with. She then walked to the infant's section to look for some juice for the baby. There the baby opened the packet of soup. The Appellant was afraid that the baby might damage the contents of the packet and that she would be forced to buy the packet. So subconsciously, the Appellant took the packet from the baby and put it inside the paper bag she was carrying. She then gave the baby a bottle of juice to hold. At the cashier counter, she was tired and put the baby on the ground. The baby wanted to drink the juice and also wanted to go to toilet. The baby ran about and she had to chase after her. All that distracted her attention and she forgot about the packet of soup in the paper bag as she paid for the bottle of juice. She said that in the police station, she told PC52259, "the baby had held the packet, I had also held the packet, but I do not know who placed it in the bag or when it was placed there." She accused the officer of summarising what she had actually said.

3. The trial magistrate accepted the evidence of the two prosecution witnesses. He considered the plainclothe security guard a cogent and honest witness who was not shaken on cross examination. He considered the Appellant incredible and rejected her evidence. He found that the Appellant knew what she was doing and committed the offence out of a momentary greed.

4. At the appeal hearing, the Appellant accused her counsel of failing to put her case properly before the magistrate. She said counsel refused to produce letters from her employer as to her good character for tactical reasons because the letters would disclose that she was under a suspended sentence for burglary. She said that counsel was too busy to take instruction from her and failed to properly cross examine PW1. She said she had reformed and had good support from her colleagues and employer. She said she was within the operative period of her suspended sentence and hence she would not be so stupid as to commit such an offence, especially as the soup was not of much value and was not useful to her illness. She also produced reports from her clinical psychologists in support of her determination to reform. She said she was very confused and did not know what had happened at the time of her arrest. It was only until she saw the liaison officer of the Duty Lawyer Scheme that she could clearly recall the incident.

5. Having reviewed the 27 pages of transcript, I am satisfied that her lawyer has competently discharged his duty and has competently put her case before the magistrate. In particular, the cross examination of PW1 was very thorough. PW1 stood as a very firm and convincing witness. She was able to give a detailed account of her observation. She watched the Appellant from within 3 feet when the Appellant took the packet of soup from the shelf, from about 20 odd feet when the Appellant put the packet into her paper bag, and from about 5 to 6 feet when the Appellant approached the cashier counter. She had an unobstructed view of the Appellant, though sometimes the Appellant had her back towards her. She denied the defence case as put to her by the Appellant's counsel. She denied the baby had attempted to open the packet of soup. Even if she might not have seen that happening because her view of the baby had been obstructed by the Appellant or by other physical objects, she denied that the Appellant had to chase after the baby at the cashier counter or that the baby had asked to go to the toilet. PW1 was only 5 to 6 feet from the Appellant when she approached the counter. As the trial magistrate accepted PW1 to be an honest witness, that evidence of PW1 was sufficient to discredit the Appellant's defence that she was distracted by the various demands of the baby as to forget about the packet of soup she had earlier put inside the paper bag.

6. As for the difference between what PW2 alleged the Appellant to have told him during the inquiries and what the Appellant had actually said as put by her counsel, I consider that a distinction without difference. In essence, the Appellant was saying that she did not put the packet into her paper bag. This is contrary to her defence that she put the packet into her bag to prevent the baby from opening it and she forgot about it at the cashier counter. This was one of the issues considered by the trial magistrate. The trial magistrate is entitled to come to the conclusion that she was not a credible witness and did not believe her allegation of confusion and distraction.

7. I have also considered the employer's letters and clinical psychologists' reports. They cannot negative the evidence of PW1 that the baby was not causing distraction at the cashier counter and the irresistible conclusion that the Appellant was incredible. I can only feel sympathetic towards the Appellant that she has gone so far towards her rehabilitation but failed due to a momentary greed, which also unfortunately triggered a suspended sentence. To overturn the conviction would require me to find that not only was PW1 mistaken but that she was dishonest in describing what happened at the cashier counter when she was 5 to 6 feet from the Appellant. That certainly was not open to me or to the trial magistrate in view of the evidence.

8. Accordingly, I consider the trial magistrate's finding cannot be faulted. The Appellant's appeal is therefore dismissed.