HKSAR v. LUK CHING LUEN

HCMA 634/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 634 OF 2002

(ON APPEAL FROM ESCC 1353 OF 2002)

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J U D G M E N T

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1. The Appellant, a 45 year old female with hitherto a clear criminal record, appeals her conviction, after trial, on a single charge of theft.

2. Three witnesses testified for the prosecution: the first was a staff member employed by the shop from which the theft occurred, who witnessed the Appellant placing some of the stolen items into her bag and who subsequently intercepted her: the second was the store manager whose evidence appears primarily to have been to negate the allegation of presence of a person described by the Appellant: the third was the police officer who arrested and cautioned the Appellant and subsequently recorded her response.

3. The Appellant elected to testify and called a witness.

4. In short the evidence of the first prosecution witness is that following upon a report made to her she kept the Appellant under observation: she saw the Appellant place towels belonging to the store into a bag and leave the shop without making payment: she intercepted the Appellant: when her bags were inspected other items belonging to the store, including two bottles of XO sauce in distinctive packaging, were found: there had been no payment in respect of any of them. Bottles of XO sauce are treated differently from other stock: she had noticed two bottles in a distinctive form of packaging on display when she had gone on duty that day: after the Appellant's interception she observed that those two bottles were missing from the display: no sales of that sauce had been recorded in that shop on that day.

5. The police officer testified that after cautioning the Appellant she had responded that she had bought the bottles of XO sauce but forgotten to pay for the remaining items. This was later recorded in writing and signed by the Appellant. Neither its admissibility nor its accuracy was challenged.

6. However, when the Appellant gave evidence she testified that the two bottles of XO sauce had been given to her earlier that day by a friend, that person later being called as a witness on her behalf. She testified that the store's labels, apparent on the packaging of the XO sauce, had been placed there only after her interception. She accepted that she had not told the police officer that the bottles of sauce had been given to her by a third party. It was only at this stage that she disputed having said to the police officer that which he recorded.

7. The Appellant's witness testified to meeting her earlier that day and giving her two bottles of XO sauce and a vase.

8. The real issue in this matter was one of credibility of the witnesses who testified during the trial. The Magistrate had the opportunity of seeing and hearing those witnesses. She was the person best placed to assess their testimony. She evaluated their evidence as she was required to do. She demonstrated in her Statement of Findings that she had reminded herself of all the directions necessary in this matter. She gave cogent reasons for accepting the evidence of the prosecution witnesses and rejecting that of the Appellant and her witness.

9. The prosecution evidence established beyond reasonable doubt the elements of the offence.

10. There is no merit in this appeal which is dismissed.