HKSAR v. SHUM YU KIN

HCMA 797/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 797 OF 1998

(On Appeal from NKC 2968/1998)

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J U D G M E N T

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1. The Appellant was convicted of one charge of Theft contrary to section 9 of the Theft Ordinance, Cap. 210, Laws of Hong Kong, on 31st July 1998. He was fined $2,000.00 and ordered to pay costs of $3,000.00.

2. The offence was an alleged shop-lifting from a supermarket in Mongkok which was operated for the benefit of the Hong Kong Professional Teachers Union. The customers were all union members who had a membership card, which allowed them to purchase goods at that supermarket, or another supermarket operated by the Union in Causeway Bay. Goods were identified by barcodes, the information for which was kept in computers. Price tags carried the logo of the Union. The barcode would be unique to the Union. For products purchased from outside carrying their own barcodes, the Union would enter the barcodes into their own computers and the computer would enter them in the cash registers. For items which did not have barcodes of their own, the Welfare Union of the department produced barcodes, and the Union had a computer programme for producing barcodes which meant that workers at the supermarket could produce barcodes when needed.

3. Once a customer had chosen goods he would go to the cashier and, the goods would be scanned to give the cash register the information. The register would give the title, price, quantity and the total amount of the item and the customer would be asked for his membership card, so that the membership number might be entered. After that, the customer would be asked to pay the amount. The cash register produced a receipt showing the items the member had bought, the amount, the registered number, the cashier's serial number, the date, the time and the change. The front copy of the receipt was given to the member, the remaining copy was kept for Union records; the information on both copies of the receipt was identical.

4. At the beginning of each business day, prior to business commencing, the Union carried out a process on the computer which informed the cash register that it was going to do business for that day and the receipt rolls from each cash register left over from business of the previous day were collected and taken to the office. Those receipt rolls were kept as records and inspected when necessary. New rolls were placed in each cash register every day.

5. Similar procedures were followed at both the Causeway Bay and the Mongkok supermarkets. Only Union members could use these supermarkets. There was no possibility of confusion between Causeway Bay and Mongkok supermarket receipts because the location code was printed on the receipt; 001 being the marking for Mongkok and 002 the marking for Causeway Bay.

6. On 24th January 1998, the Mongkok supermarket opened from 9:30 a.m. At about 1 o'clock, P.W.1, a Supervisor, observed Appellant, who had a rucksack on his back, seemingly loitering in front of the cash registers, without appearing to be ready to go through them. Eventually, the Appellant went to the cashier to pay for a packet of tissues he was holding. He was seen leaving the cash register and the supermarket and P.W.1 chased him outside the supermarket and asked for his membership card. Appellant produced his card and asked if he could inspect the rucksack. That inspection revealed many items inside, all of which were sold in the supermarket. The Appellant alleged he bought the goods earlier at the Mongkok supermarket, but told P.W.1 he did not have a receipt. The cash register receipts were checked but no entry was found for any of the goods, except the tissues which had been purchased at 1:00 p.m. and for which Appellant's membership number was found on the receipt. Further checks of the receipt rolls failed to reveal any entries relating to the items found in Appellant's rucksack.

7. That was the basis of the prosecution case and in general there was no dispute about what had taken place at the trial, or the evidence that had been given. There was only one point taken on appeal; that the Magistrate, having correctly found the till roll was computer-generated and only admissible as a computer record if section 22A of the Evidence Ordinance Cap. 8 was complied with, erred in finding the rolls were not admissible under section 22A but nevertheless were admissible under section 17A of the Evidence Ordinance. Counsel submitted this finding was fundamentally flawed because the Evidence Ordinance makes specific provision for dealing with computer-generated documents and it was not possible to circumvent those requirements by applying another section which does not refer specifically to computer-generated documents. It was argued that section 17A deals with records kept by a person acting under a duty to compile them and the fact the record was generated by a computer specifically took it out of the ambit of section 17A. On that basis, it was submitted, there was no evidence against the Appellant on which he could be convicted.

8. The argument, relating to the admissibility of the till rolls, was advanced before the Magistrate. In his Statement of Findings, the Magistrate accepted the evidence relating to the rolls was insufficient to satisfy the requirements of section 22A, as the prosecution had not produced evidence that measures were in force for preventing unauthorized interference with the computer and that the computer was operating properly, or, that in the event it had a fault, the accuracy of the production of documents would not be affected. He found that the cash registers were computer-controlled, and whilst there was clear evidence upon the system of security in operation for the cash registers, this evidence did not extend to the security of the computer itself.

9. The Magistrate considered that the prosecution did not need to satisfy s.22A of the Evidence Ordinance to succeed in this case, but could rely upon section 17A of the Evidence Ordinance which states:

"(1) Where in any criminal proceedings the happening of an event of any description is relevant, and it is proved that a system has been followed whereby a person acting under a duty has compiled a record of the happening of all events of that description, evidence that there is no record of the happening of the event in question shall be admitted as prima facie evidence to prove that the event did not happen.

(2) This section shall not apply to any record compiled in connection with any criminal proceedings or with any investigation relating or leading to any criminal proceedings.

(3) Where evidence is tendered under this section, the court may require that the whole or part of the record concerned be produced and, in default, may reject the evidence or, if it has been received, exclude it.

(4) Any reference in this section to a person acting under a duty includes a reference to a person acting in the course of any occupation in which he is engaged or employed or for the purposes of any paid or unpaid office held by him."

10. The Magistrate found that the records compiled by the cashiers as part of their daily duties with the cash registers fell within this section, and as the record was compiled for the Union's business records, they were not compiled in connection with any criminal proceedings.

11. Counsel for the Appellant argued that where specific procedures are provided for the admission of computer-generated documents, it was not open to the prosecution to choose one of several methods of introducing evidence and the prosecution could only lead such evidence if they complied with section 22A.

12. The Respondent agreed that section 22A requirements had not been met, but submitted that the Magistrate could correctly rely on section 17A as an alternative way of dealing with what was proper and admissible evidence to prove that an unrecorded event did not happen. It was submitted that section 22A did not state that only section 22A could be used where computer-generated material was being considered and that section 22A and section 17A were complementary routes to the same end.

13. There are no cases that are of particular assistance on this matter. The equivalent section of the English Police and Criminal Evidence Act (PACE) s.68 states that a document shall be admissible in any proceedings as evidence of any facts stated therein, if it forms part of a record compiled by a person acting under a duty, but that section is stated to be subject to section 69 which provides that a statement contained in a document produced by a computer shall not be admissible evidence unless certain procedures are followed. Section 69 is an affirmative duty, emphatically stated. The wording of the Hong Kong legislation is not identical although arguably the draftsman could have made it similar. The case Regina v. Shephard [1993] AC 380 to which I was referred points the difference in wording and emphasis of PACE as compared with the wording of the Evidence Ordinance, Cap. 8.

14. The Magistrate was satisfied that the evidence of the prosecution witnesses showed that there was no record of any sale transactions at either the Causeway Bay or Mongkok supermarkets of the property allegedly stolen. He found that a rigid system had been in operation at the cash registers for all cashiers and that there had been no deviation from the system used during the relevant period. The cashiers, acting under a duty, had compiled a record of the happening of all events of that description, i.e. the sales. That there was no record of this particular sale could be accepted by the Magistrate as prima facie evidence to show the event did not happen.

15. As section 17A is targeted at proving an event did not happen, it is arguable the prosecution proceeded correctly in using section 17A. The evidence relating to the non-existent purchase was properly accepted by the Magistrate in terms of section 17A. The prosecution was not obliged to lead the evidence in terms of section 22A of the Evidence Ordinance, although they could have done so.

16. I can see no reason why the Magistrate should have excluded admissible evidence, simply because the prosecution chose one method of adducing that evidence as against another method available to it under the Evidence Ordinance. There was evidence that the counter staff were under a duty to physically scan the items; the system of scanning ensured that a record was compiled albeit by a computerised rather than a mechanical till, and a receipt was issued as a record in furtherance of the system. The compilation of the record was valid for many purposes but a dominant purpose was that it be kept to show what goods were sold, where, when and to whom.

17. I am satisfied having considered the trial transcript and the Statement of Findings, that the Magistrate was correct to treat the evidence in the manner that he did and I am satisfied that the Appellant was correctly convicted on the basis of that evidence. This appeal against conviction is dismissed.