THE QUEEN v. TO KAM WING, LEWIS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 652 OF 1993

--------------------

--------------------

------------------------------------

REASONS FOR DECISION

------------------------------------

1. The appellant was convicted of shoplifting by Mr Lim in Shatin Magistrate’s Court. At a hearing on 2nd November I allowed his appeal against conviction and I now hand down my reasons.

2. There was no dispute that the appellant walked out of the shop – Manning’s Dispensary - with the article in his hand. When he was stopped he at once said he had been thinking of something else and had forgotten to pay. This he repeated in a cautioned statement made later at the police station.

3. The appellant told the magistrate that his girlfriend had telephoned him earlier that evening. She said she would be working late and asked him to buy some cleanser and body lotion, which he would find at either Yaohan Department Store or the Body Shop at New Town Plaza. The body lotion cost $70 and the brand name started with G. It is not clear from the appellant’s testimony whether the cleanser was also of a specific brand. That is what he said in his cautioned statement.

4. He went to Yaohan first and bought some gel and body lotion, plus other items, but not the specific body lotion requested. He then went to Manning’s, carrying these items in a plastic bag.

5. On entering Manning’s he saw a box of Bird’s Nest on special offer at $189. He asked the cashier if he could buy them individually but she said no. So he picked up the box and moved on into the shop looking for the body lotion. Unlike in Yaohan he did not ask anyone if the particular brand was stocked. He looked at the shelves and, not seeing it, decided he would go to Watson’s. He then walked out of the shop with the Bird’s Nest still in his hand. When he was stopped he was not aware that he had left the premises. He intended to pay for the Bird’s Next but his mind was preoccupied with body lotion.

6. The evidence of the salesman who stopped the appellant did not contradict the latter’s story. After taking the Bird’s Nest he said the appellant walked to the middle of the shop and looked at the shelves. He then walked slowly past the cashier’s counter and out of the shop. When accosted the appellant said “Oh, I was thinking of something else and forgot to pay”. He had on him $1,820 in cash.

7. The appellant is 27, single and has a clear record. He earns $10,000 a month as a scriptwriter for ATV. He called as a character witness a priest of the Chinese Church of Christ who had known him for five years. The latter produced a testimonial stating that the appellant was active in church missionary work and was generous in his charitable donations. He was honest, prudent and a man of integrity.

8. The magistrate took these matters into account but said he was convinced that the appellant was not telling the truth. The only reasons he gave for this conclusion were first the appellant’s demeanour and second his failure to ask in Manning’s for the specific brand.

9. Mr Bell, for the appellant, relied on the dictum of Lord Diplock in R. v. Kwan Ping-bong and Another [1978] 1 HKLR 1 at page 5 :

“.... The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling -one (and the only one) that no reasonable man could fail to draw from the direct facts proved.”

10. Mr Bell submitted that in this case, because of the many circumstances in the appellant's favour, guilt was not the only reasonable inference. Counsel pointed to his character, the money in his pocket, the honest transaction in the other shop, his immediate response that he had forgotten to pay and, most important, the lack of any suspicious circumstances, particularly the absence of any attempt to hide the box.

11. Most shoplifting cases are decided according to the magistrate's view of the credibility of the store detective or salesman who stops the suspect. That was not an issue here; the only issue was the appellant's state of mind.

12. If the appellant's instructions were to buy specific brands of both cleanser and body lotion, it is strange that he bought another product in Yaohan. However the evidence on this point is contradictory.

13. I do not consider it so odd that he did not ask anyone in Manning's for the articles. It is sometimes easy to tell at a glance whether a particular brand is on the shelf.

14. My conclusion was that counsel was right in his submission that it was dangerous to dismiss the appellant's evidence without greater analysis. In the result I was left with a lurking doubt and quashed the conviction as unsafe and unsatisfactory.