THE QUEEN v. TAM KAM-CHUEN

IN THE HIGH COURT

1992, No. 909
Magistracy Appeal

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J U D G M E N T

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Litton, J.A.:

1. The appellant Tam Kam Chuen was convicted by a Magistrate Miss L.K. Loh at the Tuen Mun Magistracy on 13 October 1992 of one charge of theft. The charge reads as follows:

Theft

Contrary to Section 9 of the Theft Ordinance, Cap. 210.

Particulars of Offence

TAM Kam-chuen, you are charged that on 8th August 1992, at the entrance of Carpark, Phase Two. Tuen Mun Town Plaza, Tuen Mun, New Territories, you did steal a box of pork steak, weighing 25 kilogrammes, the property of an unknown person.

2. The facts of the case were simple. A police patrol saw the appellant at the Eldo Garden Commercial Complex, Tuen Mun holding a carton. They stopped him, searched him and found that the carton contained another carton inside of which was a quantity of pork. When questioned the appellant said that he had found the pork at the entrance to the carpark at Phase II Tuen Mun Town Plaza that day. When he was arrested and brought back to the police station he said essentially the same thing under caution. Arising out of these facts he was charged with the theft of that carton of frozen pork.

3. When the appellant came before the Magistrate, he gave evidence which was essentially to the same effect as what he had told the police. He said he saw the carton close to a refuse room near the entrance of the carpark in Phase II Tuen Mun Town Plaza. He ignored it at first but returned 20-25 minutes later, found it still there, opened it and found the pork inside. Although the quality was not good he thought it was still edible. He first took the carton home and later tried to see if any restaurant would buy the pork and, just before the second attempt to sell it, he was detained by the police. He said he was a cleaner, and often found things such as chocolate, candies and noodles abandoned near the refuse room.

4. In essence his case was that it was abandoned property, or he believed it to be so. The Magistrate found parts of the appellant’s evidence difficult to believe, such as his claim that he often found chocolates, candies and noodles near the refuse room.

5. Assuming that the Magistrate disregarded the whole of the appellant’s evidence, the conclusion would be that there was simply no evidence before the court, apart from that which came from the police. The police were unable to give any evidence as to the ownership of that carton. No evidence was given as to the state of the pork on 3 August 1992. There was no evidence to contradict what the appellant said, namely that it was not in very good condition. There was nothing inherently improbable in his assertion that he thought it was abandoned. There was simply no evidence before the Magistrate in this case to suggest that the appellant had stolen this carton of pork.

6. In these circumstances plainly the conviction of theft cannot stand. The appeal is allowed and the conviction is set aside.