HKSAR v. TAM KWAN YIP

HCMA662/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.662 OF 2002

(ON APPEAL FROM ESCC 717 OF 2002)

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J U D G M E N T

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1. The appellant was convicted on 27 May 2002 of one charge of theft and was sentenced on 10 June 2002 to a Community Service Order of 180 hours and charged costs of $3,000.

2. The facts alleged by the prosecution were that on 31 January 2002, the appellant who was a member of a selling scheme run by a company called "Amway" went to a distribution center of Amway at Causeway Bay. A witness (PW1) in that centre said that he was a regular customer and that she observed him select products from the shelves and placed them inside a trolley. She saw that most of the goods were nutrient supplements in pill form. She said that at the shampoo section, she saw the appellant take three bottles of nutrients from the trolley and placed them in a rucksack hanging from the trolley. He then zipped up the rucksack and went to the cash desk to pay. She said that when he paid he did not take out the nutrients she had seen him place in the rucksack. He paid, she said, for other items but not for those three and she reported the matter to the Customer Service Department and the appellant was confronted with the matter.

3. In his bag were found another series of items : two large boxes of medicine, six bottles of medicine and two bottles of affirming gel. There was no evidence from the only witness who observed the appellant as to the taking of the items other than the three to which I have already referred.

4. The appellant gave evidence and called a witness (DW1). Both he and DW1 said that items in the rucksack had been given by DW1 to the appellant, that the goods had been bought by that DW1's husband at her request and that he had, on her behalf, taken the goods with him. They were not, both the witnesses said, stolen from Amway.

5. The magistrate who gave her oral reason at the close of the case said this :

"I have also borne in mind that your witness apparently was only asked to give evidence some three months after the incident. I have also noted her evidence and compared it to your evidence. I find both of you totally dishonest. It is clearly a fabricated story and I reject it."

That was the only reason given in her oral reasons for the rejection of the evidence of the appellant and the witness that he called.

6. In the written Statement of Findings in respect of PW1, the magistrate said this :

"I did not find that DW1's evidence in any way caste any doubt upon the prosecution evidence. She gave evidence of handing over the items to the Appellant. She stated that her husband bought the goods for her at her request, but she was uncertain exactly when or from where they had been bought. There was no evidence from the husband, nor were any receipts nor was any other information given by her which could be checked by Amway. She also seemed to have shown little or no concern about the retention of her goods by the police. Goods, which were to the value of HK$2,676. I found her to be a dishonest witness."

7. In respect of the evidence of the appellant, she said this :

"... All the Appellant's explanations as to why he did not do so at any stage during that day, in my judgment, lack any credibility at all. He further left no voice mail on DW1's mobile as to the problems he was encountering or had encountered. I found the Appellant to be a dishonest witness. "

8. The magistrate would appear to have adopted two different reasons for the rejection of the evidence of, particularly, DW1 when she did so by comparing the two in her oral reasons and the other by intrinsic improbabilities which she said she found in their evidence when she wrote her Statement of Findings.

9. I am concerned in as much as I am unable to determine what she meant by comparison of the evidence of the two witnesses. It is unclear from both versions whether she finds the comparison reveal an agreement between the witnesses which led her to reject the evidence, or whether it meant a difference between the two witnesses which led her to reject the evidence.

10. In my view, the approach by the magistrate in the oral reasons as compared to that in the written Statement of Findings gives rise to sufficient concern for me to find that there is a doubt in respect of the conviction. The appeal is allowed and the sentence is set aside.