HKSAR v. ABUJEN, ELISA A

HCMA 260/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 260 OF 2000

(On Appeal from Eastern Magistracy Case No. ESCC 3877 of 1999 )

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J U D G M E N T

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1. The Appellant was convicted after trial on 3 February 2000 of one charge of theft, which is in the nature of shoplifting. The Appellant was sentenced to a fine of $1,000 together with costs of $500. She now appeals against the conviction only.

2. The prosecution's case is that the Appellant on 9 December 1999 at a Park'n Shop in Happy Valley took one bag of strawberries, one pack of ham and one pack of grapes without paying for them. The Appellant did not deny that she had taken these items and had not paid for them. Her defence is that she was, in her own words, "daydreaming", and that she did not realise that she had not paid for these items when she paid for other items at the check-out counter.

3. The appeal raises two grounds. The first ground is that the magistrate was mistaken in his finding of fact when he stated that the only item that the Appellant had paid for was a bottle of bleach. The second ground rests upon the magistrate's approach and treatment of the evidence of the defence witness.

First ground of appeal

4. In his reasons delivered orally in court and also in his statement of finding, the magistrate stated that the Appellant had only paid for one item of goods, and that is a bottle of bleach. I accept the submission advanced on behalf of the Appellant that the magistrate was mistaken on this point. There are various parts in the transcript which indicate that both the supermarket manager and the Appellate had given evidence that the Appellant had purchased other items from the supermarket that day. The evidence was in fact to the effect that the trolley pushed along by the Appellant was half full and that the total bill of the purchase came up to $100.00 odd. With a bill of that amount, it cannot be that she had only purchased one bottle of bleach as found by the magistrate.

5. Mr Forrest, who appeared for the Appellant, submitted that if the magistrate was misconceived about this simple and fundamental point, then one cannot be sure as to what other facts he could have been mistaken. It is not apparent from the oral reasons delivered in Court and from the statement of finding as to how this mistake have or would have affected the magistrate on the assessment of the evidence. Mr Madigan, who appeared for the prosecution, therefore submitted that this mistake is irrelevant.

6. In my view, one cannot say with confidence that this mistake is necessarily and clearly irrelevant, and can therefore be ignored. The undisputed fact of this case is that the Appellant had put other items which she intended to purchase in the trolley she was pushing along. The black bag in which the 3 items said to have been stolen was also placed inside the trolley.

7. The Appellant's evidence is that she did not know how it came about that she had put these 3 items into the black bag. Her case is that she was "daydreaming". She was daydreaming because she was worried and excited about a trip she was about to make to the United States when she would be seeing her grandchild for the first time. The Appellant is a 60 years old lady who had worked in Hong Kong for 16 years before the incident. Against such background, a relevant issue is whether the Appellant would have or should have noticed that there were things in the black bag which she had taken from the supermarket but had not been paid for, when she approached the check-out counter. Had it been a case that the only item she had taken from the supermarket and paid for was a bottle of bleach, then it would be difficult to say that she would not have noticed and she in fact did not notice there were other unpaid items in the black bag. This is particularly so when the Appellant's evidence was that the black bag was unzipped at the time.

8. On the other hand, if, as the evidence shows, the trolley was half full with goods of the supermarket and the Appellant had paid for these other items in the trolley, then it is not improbable that she would not have realised that there were other unpaid items in the black bag.

9. The magistrate had made a mistake about the item purchased by the Appellant, and had not given any consideration to the undisputed evidence that the trolley was half full of goods at the time. These are relevant and salient matters when the Court considers whether the Appellant had the necessary dishonest intent, or whether she was, as she said, acting out of absent-mindedness or lacking in concentration.

10. With regard to the evidence of the defence witness, who is the Appellant's employer, it is clear that her evidence goes beyond the question of good character and propensity. The witness had given evidence to the effect that the 3 items were on the shopping list she gave to the Appellant. She pointed out that the Appellant stood to gain nothing from stealing these items. This is because she would check the receipt from the supermarket against the items brought home by the Appellant. If the receipt did not reveal purchase of these items, the Appellant would not be reimbursed by the witness. She also stated that the Appellate could not possibly have any use of the pack of ham. In short, the evidence of the employer also goes to the question of motive.

11. The magistrate in his oral reasons delivered in Court said that the evidence of the employer did not assist in any aspect. In his statement of finding, the magistrate stated that the evidence of the employer was simply that the Appellant was of good character. The magistrate, therefore, did not appear to have appreciated that the significance of the employer's evidence goes beyond the question of good character. It may be that after considering or assessing the evidence of the employer, the magistrate would still have come to the conclusion that the evidence does not advance the defence case and that the question of motive does not assist in establishing the lack of criminal intent on the part of the Appellant. However, this aspect of the defence witness' evidence is not an irrelevant nor insignificant matter that does not merit any consideration by the magistrate. The magistrate ought to have assessed and dealt with the defence witness' evidence in some or greater details, whether in his oral reasons or in his statement of finding.

12. Taking the two grounds of appeal together, there is great force in the submission that there is a real risk of the magistrate not having approached and assessed all the evidence in the case adequately. The conviction is thus unsafe and unsatisfactory. I therefore allow the appeal. The conviction is quashed and the sentence set aside.