HKSAR v. LO KIM MING

HCMA542/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)MAGISTRACY APPEAL NO.542 OF 2005

(ON APPEAL FROM STCC 2457 OF 2005)

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REASONS  FOR  JUDGMENT

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1. The appellant was convicted after trial of one charge of ‘Theft’.  He was sentenced to a fine of $2,500.  He now appeals against the conviction.

The facts

2. This is a case of shoplifting.  The allegation was that the appellant stole one packet of cucumbers and one packet of octopus sashimi from a Park’n Shop Superstore.  He was caught committing the offence by PW1 (Miss Lam), the store detective.

3. This is how the magistrate summarized the evidence and came to the guilty verdict (see his oral reasons) :

“Now, I accept the evidence of Miss Lam, PW1, as to what happened inside the supermarket, namely that the defendant took two cucumbers, then the box with sashimi, which he then took with him to a shelf displaying noodles.  And here he put the octopus and the cucumbers into his rucksack, and then took two cup noodles from the shelf and went straight to the cashier and paid for those noodles.

It is the defendant’s evidence that he felt unwell.  ‘Uncomfortable’ was the word much used.  He said that he had a runny nose, a headache.  After his arrest he did go to the hospital, and the doctor notes that he had a runny nose.  In short, the defendant was suffering from a cold, the common cold, or as the doctor puts it, ‘an upper respiratory tract infection.’  The defendant says that he has no recollection of putting the packet of octopus and the cucumbers into his rucksack, but believes he must have done so as when he picked up the noodles his hands were full.  He explains that he then forgot all about the octopus and the cucumbers and went to the cashier and paid for the noodles.  It is correct that he told the arresting police officer that he felt unwell, and the police officer himself noted that the defendant reacted slowly to his questions. 

It may be as the defendant says, and it is confirmed by the doctor’s report, that he was suffering from a cold with the attendant discomfort, but I do not believe for a moment that this affected him in the way that he claims.  I do not believe it is remotely possible that after the defendant put the packet of octopus and the cucumbers into his rucksack he forgot all about them.  The evidence of Miss Lam, which I accept, is that after taking the noodles the defendant went straight to the cashier and paid for the noodles. There was no evidence as to how long elapsed between the defendant taking the noodles and paying for them, but it must have been a comparatively short period of time. 

I am satisfied that although the defendant was suffering from the discomfort of a cold, that did not in any way affect his capacity to form the necessary dishonest intent.  I am satisfied that the defendant put the packet of octopus and the cucumbers into his rucksack in order to conceal them, and with the intention of avoiding paying for them at the checkout.  That of course is dishonest, and I am satisfied that the defendant knew that he was being dishonest.  In short, the defendant, I am satisfied, knew what he was going at the time in question when he put the octopus and the cucumbers into this rucksack and he knew that it was wrong.”

The appeal

4. Before me, counsel for the appellant raises four grounds :

“1.  The learned Magistrate found that : ‘There was no evidence as to how long elapsed between the defendant taking the noodles and paying for them, but it must have been a comparatively short period of time.’  He failed to consider or consider sufficiently that :

(a)   the size of that Park’n Shop;

(b)   the pace of the Appellant; and

(c)   there were customers queuing up at the cashier counter to wait for payment of the commodities.

The learned Magistrate therefore wrongly concluded that : ‘I do not believe it is remotely possible that after the defendant put the packet of octopus and the cucumbers into his rucksack he forgot all about them.’

2.  The Appellant’s defence was that he had a common cold on that day and he took the medicine at 2:45 p.m..  The effect of the common cold as well as the medicine make him headache, tired and sleepy and therefore he forgot to pay.  The learned magistrate accepted the Appellant had a common cold on that day but did not believe that would affect him in the way that he claimed.  The learned Magistrate :

(a) erred in concluding that the discomfort of a cold did not in any way affect his capacity to form the necessary dishonest intent;

and

(b)  failed to consider that the Appellant had consumed 2 tablets of the Coltalin at 2:45 p.m. on that day.  And this common cold drug would cause drowsiness to the Appellant.

3.  The learned Magistrate failed to consider or consider sufficiently that the response of the Appellant to the police officer upon arrest was consistent with the defence raised by him in the trial.

4.  In all the circumstances of the case, the conviction was unsafe and unsatisfactory.”

5. I do not think there is anything to them.

6. It is a matter of common sense that supermarkets in Hong Kong can only be ‘so big’, even those that call themselves superstores, and it is a matter of common sense how fast people walk, unless they deliberate hurry themselves or drag their feet.  This being so, and given PW1’s evidence that the appellant “went straight to the cashier” after picking up the noodles, one can only be looking at a gap of a few minutes.  The fact that there were customers in front of the appellant (five to six according to his evidence) could not have added much to this time lapse.

7. According to PW1, the offence took place at 4:00 p.m.  It was one and a quarter hours after the appellant had allegedly taken his Coltalin tablets.  Moreover, that this kind of medication might cause drowsiness could not have escaped the magistrate’s attention as this and other matters in what was a short case had been fully canvassed in a closing speech just moments before the magistrate came to his verdict.  The fact that he made no mention of it in his reasons causes me no concern whatsoever.

8. I should add that the appellant’s “discomfort” must not be exaggerated, as was clearly demonstrated in his cross-examination :

“Q: So, but earlier on you told us that after work you still have to go to  buy food.  Is that right?

A: Yes, because my wife telephoned me in the afternoon.

Q: So when you get off work, is it the case that you are feeling still very uncomfortable then?

A: Yes.

Q: Why didn’t you go and see a doctor then?

A: Now, I was minded to go to see a doctor downstairs, if I’d really  feel uncomfortable after having gone home.  My doctor downstairs was the one I went to consult very often.

Q: So, is it your wife’s direction or instruction to ask you to go to the  Park’n Shop to buy food?

A: Well, he (sic) merely told me to buy some food.  He (sic) did not instruct me to go to Park’n Shop.

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Q: So, when you entered, before you entered the Park’n Shop, do you  have anything in mind that you want to buy?

A: No.

Q: So, how did you feel at that time when you entered in the Park’n Shop?

A: Also uncomfortable, not well.

Q: How uncomfortable?

A: Headache, dizzy.

Q: But that was two hours after you have taken the Coltalin, is that  right, almost two hours after you have taken the Coltalin?

A: That’s right.

Q: You still had a headache?

A: Yes.

Q: But at that stage you still decided not to see a doctor first?

A: That’s right, I did not go to see a doctor.

Q: You still wanted to go into the supermarket to tour around to see  what you want to buy, is that right?

A: That’s right.”

9. As regards the police officer’s evidence, it was at best neutral because people become slow in their reaction for all sorts of reason, fear being one of them.

Judgment

10. In conclusion, I do not see how the conviction in this case can be said to be unsafe and unsatisfactory.  That is my judgment.

11. The appeal is dismissed.