HKSAR v. CHAN HO CHO

HCMA 51/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. hcma 51 OF 2006

(ON APPEAL FROM ESCC 3397/2005)

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R E A S O N S  F O R  J U D G M E N T

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1.  The Appellant was convicted after trial on a charge of theft, contrary to Section 9 of the Theft Ordinance Cap. 210.  He was fined HK$7,000.00.  He appeals now against both conviction and sentence.

2.  The basic facts of the theft, which was a shop-lifting, were not disputed.  The Appellant went to a Marks & Spencer store at Times Square with his wife.  He took a man’s belt from the display rack and put it through the belt loops of his jeans.  He left the shop without having paid for the belt and was intercepted by a security guard outside a washroom on the 3^rd floor.  The police officer who attended the scene seized the belt and a hanger tag which had been taken off the belt in the manager’s office by the Appellant.  The Appellant claimed he had not intended to steal the belt, but he had a stomach ache and needed to go to the toilet urgently, forgetting he had not taken off the belt.

3.  The chief prosecution witnesses were the security guard and a sales assistant.  The security guard had seen the Appellant put the belt on, pull his T-shirt over the belt and leave the shop.  Her evidence was that the Appellant denied having taken the belt without paying for it, and claimed that the belt was his property.  While in the manager’s office, she saw him take the belt hanger tag from his waist bag and drop it behind his foot, in an attempt to hide it.

4.  The defence case was one of honest mistake.  The question for the Magistrate to decide was whether the Appellant had the intention to steal.

Grounds of Appeal

5.  The Appellant, who represented himself on appeal, filed standard grounds of appeal.  At the hearing, he pointed out various matters, which, he believed, showed the Magistrate had been inconsistent in reaching her decision.  These were:

(1)     Photos taken of him at the time did not show the waist bag he wore.  If they did it would show he could not have pulled down his shirt deliberately.

(2)     It was true that he was stopped when he was about to go to the toilet, it was not just an excuse.

(3)     The Magistrate said, wrongly, that because he had not been sitting in the office, it showed he had no need to go to the toilet.

(4)     That the Police officer could give evidence proving he had needed to go to the toilet later on and had accompanied him there.

(5)     That his wife had given a statement consistent with his, although she had had no prior contact with him.

(6)     The Magistrate was wrong in saying if he had a genuine stomach ache he would be unable to hurry, as the security guard had stated that he had.

(7)     The Magistrate said his hand movements suggested he was nervous, which was unfair to him particularly as his solicitor had pointed out that he had great abdominal pain at the time.

(8)     The Magistrate said she had doubts but they did not affect the case, which was incorrect.

(9)     The security guard said she could not remember everything, she only remembered the stealing on the day of trial.  He alleged that this witness had spoken to another witness on the day of trial and received instruction as to what to say.

6.  One further point that was raised on appeal, by the Appellant, was that CCTV tapes were not made available to him.  I was advised by the Respondent that this was not because the tapes had not been sought, but because there were no tapes of the relevant areas which would have assisted either the prosecution or the defence.

7.  In fact all matters, but for that concerning the CCTV tapes, raised by the Appellant on the appeal, were matters that had been raised and canvassed by the solicitor representing him at the trial.  They were all matters of fact.  The Magistrate had assessed the evidence of the witnesses and the Appellant.  She had been aware of the issues and, analysed the evidence.  There is nothing to indicate that she did not deal with the evidence properly, or that there were breaches of procedure which might make the conviction unsafe.  The appeal against conviction is dismissed.

Appeal against Sentence

8.  The Appellant considered the trial had been dragged out unnecessarily.  His money had run out after the second day.  He said he was exhausted because the matter had been dragged out.  He believed that if he had been able to engage a lawyer on the day of verdict he would have received a lesser sentence.  Despite this belief there is nothing to show the Appellant was disadvantaged because he was not represented on sentence.

9.  The Magistrate when sentencing took into account all relevant factors in the Appellant’s favour including his age, 40, his marital status, that he was supporting a wife and a 5-year child and had a clear record.  She noted there was no discount available to him for a plea of guilty.  She took into account his background and personal circumstances, noted that he earned HK$23,000.00 a month as a Senior Immigration Assistant and decided a fine of HK$7,000.00 would be appropriate.  The maximum sentence for this offence is 2 years imprisonment.  There is no basis for saying the sentence was excessive or wrong in principle.

10.  The appeal against sentence is dismissed.