HKSAR v. NG KAM WAH

HCMA38/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 38 OF 1999

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J U D G M E N T

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1. The Appellant was charged with theft and he was convicted after trial by the Magistrate. The Appellant now appeals against conviction. The only ground that he presents to me is that the doctor who gave evidence before the Magistrate did not tell the Magistrate that the Appellant was a long time patient of the hospital. However, it appears to me clear from Exhibit D3 that was produced when the doctor was giving evidence before the Magistrate that the Appellant first attended the hospital in 1986. I conclude therefore that that ground mentioned by the Appellant himself has no substance whatsoever.

2. Before the Magistrate, evidence was given by the prosecution witnesses, the Appellant himself as well as his doctor. The issue, which was the only one before the Magistrate, was whether the Appellant stole 67 pens from a Wellcome supermarket. The defence case was that he forgot to pay. After examining the evidence, the Magistrate came to the conclusion that he did not believe the Appellant but believed the prosecution witnesses.

3. According to PW2's evidence (PW2 being the Manager of the supermarket concerned), he saw the Appellant acting in a furtive manner inside the supermarket. PW2 did not lose sight of the Appellant who took something from a shelf while looking around and then he put something from his hands into the pockets of the shorts that he was wearing. He went past the cashier without paying and he was stopped by PW2 about 10 feet pass the cashier.

4. PW3 was the police officer who arrested the Appellant upon the police being summoned by the supermarket. This witness said that the Appellant told him in the supermarket that he had no money or identity card. However, under caution the Appellant did not say anything.

5. PW1 was the police officer who took a cautioned statement from the Appellant. The Appellant in the cautioned statement admitted having stolen some ballpoint pens in the supermarket out of momentary greed.

6. The Magistrate considered all the prosecution's evidence and also the evidence given by the Appellant and the doctor called by him. He did not believe the Appellant and he found that the Appellant did knowingly take the pens with the intention of permanently depriving the store-owner of the pens that he had taken, and he found that the Appellant did not forget to pay.

7. I do not find any reason for disturbing the Magistrate's decision. I therefore dismiss the appeal.