HKSAR v. NUNG SAU KING, ROSA

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 54 OF 1998

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J U D G M E N T

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The appeal

1. The Appellant was convicted in the Magistrate's Court of the offence of theft. She now appeals against that decision.

The prosecution's case

2. The facts are that on 8th September 1997 the Appellant went to the Seibu Department Store. She was observed by a store detective to have taken a pack of eel from the frozen food counter. She put it on her stomach and covered it with her T-shirt, she then went to the toilet and then left the store without payment. She was stopped by the detective outside the store who told her that she had taken the goods without payment. The Appellant asked if she could make payment and if the case would not be reported to the police. The pack of eel was found in the rucksack she was carrying.

The Appellant's evidence

3. The Appellant gave evidence and said that after she had picked up the pack, her mobile phone which was placed in her rucksack rang. She took out the phone and put the pack of eel inside her rucksack. At that time she was near a counter selling potatos and pumpkins. As she was holding the phone, the pack of eel and the rucksack, she could not help but to put the eel into the rucksack. She did not carry any trolley or a shopping cart. She did not put the pack of eel on the products on display because they had mud on them and were dirty. As the phone was not working properly, she then looked for a public telephone. However, she went to the toilet in the store first and after that she took the escalator. She noticed that her phone could then be used, so she used her phone to call home. At the main entrance of the store, she was stopped by the detective. The Appellant then said "I took something without making any payment, but I will pay for it after making the telephone call. Can I pay?"

The finding

4. The Magistrate found the charge had been proved beyond reasonable doubt. He found that the detective was a patently honest witness and had given a truthful and reliable account of the Appellant's activities inside the store. He found the Appellant's evidence "wholly unconvincing and contrived".

The complaint

5. The Appellant complained that the detective was not a reliable witness and her evidence was confusing. The Magistrate had intervened in the cross-examination of the detective to get her to answer questions, asked her not to speculate and assist her to deal with questions. It was argued that by intervening in this manner, the Magistrate's judgment of the detective's honesty and reliability was impaired, and following from this, it was natural for him to come to the conclusion that the Appellant was unconvincing or contrived without properly evaluating the Appellant's good character and the crux of the Defence, namely, that she was side-tracked by the telephone. Accordingly there was a lurking doubt in the guilt of the Appellant.

Evaluation proper

6. Mr Grounds referred to a number of cases such as R. v. Chong Kam Sau, MA No. 859 of 1985, R. v. Lau Wai Cheong, MA No. 12 of 1990, R. v. Lee Tak Chung, Cr. App. No. 389 of 1992 and R. v. Chung Chun Yam, Cr. App. No. 278 of 1993 on the issue of the proper approach to be taken in the evaluation of evidence. The principles to be deducted from these cases are that the tribunal must evaluate the evidence before it, and in the case of oral testimony, must weigh it in the context of other salient circumstances. It must also be apparent from the record that such evaluation had been made.

7. These principles are sound principles and must be borne in mind by every trial judge. But in my view the Magistrate in this appeal had properly evaluated the evidence of the detective and the Appellant. He expressly recognised the shortcomings of the evidence of the detective and gave examples of these matters. Having assessed these shortcomings, he nonetheless came to the conclusion that she was an honest witness and accepted her evidence. This is something that he was entitled to do as a tribunal of finding of facts.

8. The detective in her evidence said that she had a poor memory but this was said in the context of a previous statement that she had made and upon which she was cross-examined. The Magistrate had intervened in the cross-examination of the detective. In my view these are proper interventions and are not such that his view on the Appellant's case was clouded by concentrating on the prosecution's case. The case of Yuill v. Yuill [1945] 1 All ER 183 where the issue was one of excessive intervention on the part of the trial judge is clearly not applicable.

9. In relation to the Appellant's evidences, the Magistrate clearly recognised her good character and the nature of her evidence. He also took into account the consistency of the evidence she gave to Court and the statement she gave to the police. He, however, rejected the Appellant's evidence on how the pack of eel found its way into her rucksack and her claims that she had forgotten to pay. These are findings that the Magistrate was entitled to make.

10. Mr Grounds complained that the Magistrate did not say why he rejected the evidence. However, the crux of the matter is that once the Magistrate accepted the evidence of the detective that she saw the Appellant put the pack of eel to her stomach and covered it with her shirt, he would necessarily have to reject the evidence of the Appellant. This is a case where the Magistrate was left with a direct choice between the evidence of the detective and the Appellant with no accompanying factors to aid in coming to a decision. This is not a case where the question of a lurking doubt arises as in Sean Cooper, 53 Cr. App. R.83 where the Court said that the reaction can be tested by a feel of the case and not strictly on the evidence.

Evidence unconvincing

11. Mr Veltro referred me to the cases of R. v. Lau Ching, M.A. No. 995 of 1993, R. v. Hui Kee Fung, M.A. No. 196 of 1994 and R. v. Lai Kwok Iu, M.A. No. 782 of 1994. Looking at the case in the round, this is a case where, according to the Appellant, after putting the pack of eel (which she admitted to be wet) in her rucksack, she took a long detour in the store. Instead of going straight to look for the public telephone as her phone was not working properly, she went to a toilet and then went up the escalators without payment. While the Magistrate might not have referred to her evidence in detail in the Statement of Facts, in my mind he was clearly entitled to the view that the Appellant's evidence was unconvincing and contrived.

Conclusion

12. Accordingly the appeal is dismissed.