HKSAR v. HACHI CHAN VIVIAN

HCMA816/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 816 OF 2010

(ON APPEAL FROM STCC 2483 OF 2010)

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BETWEEN

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J U D G M E N T

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Background

1.  The appellant was charged with an offence of theft. She pleaded not guilty and was convicted after trial.  She was sentenced to a term of Community Services Order.

2.  The particulars alleged that she had stolen one packet of almond cake, one packet of chicken pie and some bread from a Park’n Shop in Shatin, which were properties of Watson Co.

3.  The appellant had originally appealed against the conviction and sentence.  Later, she abandoned the appeal on sentence.

The prosecution’s case

4.  PW1 was the store detective.  He said that on the day in question at around 1:00 p.m., he saw the appellant took the bread from the baker section and then placed the items into a bag that she was carrying.  After wandering near the fruit display, she left the store without paying.

5.  When she was confronted, the appellant said she would pay for the items.  She was then taken back inside the shop and the different items were found inside the bag.  The police was later called.

Defence case

6.  The appellant elected to give evidence.  The appellant said that at about 1:00 p.m. on the day in question, she was going to a dancing class.  She was carrying a beige bag.  Inside that, there was a smaller bag in which she had placed various items including her mobile phone, purse, keys, and some clothes.

7.  On the way, she had stopped by the bakery in the supermarket and picked up three packets of bread.  When she was near the cooked food stall area, she said her mobile phone vibrated inside the smaller bag, and without thinking, she put the bread inside the beige bag, whilst she was searching for the mobile phone.  But her mobile phone had stopped vibrating.  She then remembered this was a reminder call for her dancing class.  In her rush to go to the fitness centre, she said she had forgotten about the unpaid bread in her bag.

8.  When intercepted outside the shop, the appellant denied that she had made an offer to pay, and when the police officers arrived, she had not asked them for “a chance”.

9.  The appellant explained that she had to go to the class that day because it was the last day of her membership, she had to pack up her things from the gym.  She had actually taken the day off from work in order to do that.  The appellant added that, in recent years, she had become forgetful because of the condition of menopause.  She had no intention to steal.  She said she had done voluntary work at the Olympic Games, helped in the events of Trailwalker and Sowers Action.  She said she was also a regular blood donor.

Assessment of evidence

10.  The magistrate had reminded herself that the appellant had a clear record. 

11.  Having considered her account, the magistrate concluded that what the appellant had said was incredible.  The magistrate stated, inter alia, that (Statement of Finding, para. 14) :

“ Bread is quite bulky, and the photos of the bread confirm this. The appellant said the smaller bag was full, with two sets of clothes for her dance class. The appellant had also indicated the size of the smaller bag in relation to the beige bag. If the smaller bag was inside, the three packs of bread would have sat on top of the smaller bag, and would be in the way when she was searching for her mobile phone. Further, the beige bag was not so much bigger than the smaller bag that three packs of bread could have slipped under the smaller bag and out of sight. Also, when the appellant had stopped looking for her mobile phone, these packs of bread would be in plain view—there is no possibility that the appellant could have forgotten that the bread were in the beige bag.”

12.  The magistrate also found the appellant to be evasive in answering questions.  She did not accept the appellant to be a credible witness.

13.  The magistrate pointed out that PW1 had given clear and credible evidence.  She accepted his testimony.  She also accepted the evidence of the arresting officer.  Regarding the circumstances of the arrest, the magistrate pointed out (Statement of Finding, para. 16) :

“It was put to PW2 that the appellant’s mobile phone was in the interior pocket of the beige bag, but the officer did not see any mobile phone inside the bag, on the table in the supermarket, or any mobile phone at any time. Later, I examined the beige bag, and there was no interior pocket in the beige bag at all. Further, in cross-examination of the officer, there was no mention, … that there was a smaller bag. It was only when the appellant gave evidence that a smaller bag was first mentioned.”

14.  The magistrate concluded that the appellant was acting dishonestly in leaving the shop with the items concealed.

Ground of appeal

15.  The appellant was not represented at the appeal hearing but she had submitted a letter stating her grounds.  She raised the following points :

“(1) Witness is not the gentleman who intercepted at the spot.

(2) On 10 August 2010 the first prosecutor that the justice department arranged was the gentleman that I had sought legal consultation for the captioned case on 18 May 2010 in the Duty Lawyer Office. I mentioned this to my lawyer, and the parties concerned started aware of this, and the trial postponed for more than an hour in order to find another prosecution who is Mr Eric Sze. My query is the first prosecutor might pass his file to Mr Eric Sze and that might constitute the fairness of my position.

(3) When Judge Loh said she is impartial … the trial was on 10 August 2010, but the verdict fell on 31 August 2010.  She obviously knew that I had another case to be tried on 16 August 2010 and might want the verdict of the case 2818 before she’s making her final decision.”

16.  The appellant had repeated the 2^nd point when addressing the court herself.  In order to find out what had actually happened, I had asked for the relevant transcript for consideration.

17.  The transcript was later available and I had given copies to both sides.  I had read the relevant contents.

18.  Having been prompted by the court, the appellant had added a few points after receiving the transcript :

“A) Appeal Case No. 816 from STCC2483/2010

(i) The additional transcript dated 10 February 2011 certified that the appointed prosecutors have doubtful position that put the case in an unfair manner for trial.

(ii) Re: Statement of Findings on page 16-para 16

(a) PW2 (the police officer) did not see any mobile phone at any time. That is not true at all. When I was detained at Shatin Police Station on 16 April 2010, my properties including the mobile phone were kept in custody at the Station’s locker. I was also asked to separate the phone battery from the phone body. The Station shall have this record.

(b) It shook me to learn about that ‘it was put that my mobile phone was in the interior pocket of the beige bag.’ In fact, the beige bag is a recycle bag, the interior is in plain. I must state that I never ever mentioned that there is a pocket inside the bag, not at any occasion. The records of the case proceedings shall testify it.

(iii) Re: Statement of Findings on page 15-para 15

It also shook me to learn about that I was evasive in giving evidence.  The records of the case proceedings shall also prove that I did not escape answers being questioned.  I understand very well about my position being held in the box.  However, the subjective perception of the magistrate would find every gesture of my demeanour to be negative.”

Discussion

19.  According to the record, the trial magistrate had, after listening to the defense submissions, adjourned the case to 31 August 2010 for verdict.  After she announced the verdict, defence counsel then informed the court that the appellant was convicted of another case of a similar nature on 16 August.  I could not accept that the magistrate had deliberately adjourned her verdict to see what was happening to the other trial.  There was no point in doing so and in any case, when the magistrate had adjourned the case for verdict, she would not have known that the ‘other trial’ must be completed before 31 August.  I see no merits in this ground.

20.  Whether PW1, who had testified for the prosecution, was the staff who had intercepted the appellant outside the shop is primarily a question of credibility and fact.  I do not consider this to be a valid point for consideration on appeal.  This ground must also fail.

21.  As to the issue about the change of the prosecutor, my reading of the record showed that the magistrate had dealt with the situation properly.  What transpired was that when the appellant appeared before the trial magistrate on 10 August, her counsel, Mr Li, had stated to the magistrate that fiat counsel for the prosecution happened to be the duty lawyer for the appellant in a previous plea case, and that he had given her advice on that occasion.  Mr Poon, the fiat counsel, had immediately clarified the position that he had indeed advised the appellant on the plea day but he had not appeared on her behalf in court.  And that is why there was no formal record in the files.  Then, at the suggestion of the magistrate, after taking plea from the appellant, Mr Poon passed on the case file to Mr Sze, a court prosecutor.  Both sides then informed the magistrate that they were ready for trial.  Hence, the magistrate proceeded with the case (see pages 48 to 49 Appeal Bundle).

22.  In the busy magistracy courts, this sort of situation is not unheard of.  And I cannot see any impropriety on the part of the magistrate or the parties involved.  Mr Li, acting for the appellant at the trial, had rightly raised no objection to the arrangement.

23.  As to the additional grounds raised by the appellant, I could also see no merits in them.  The main reason why the magistrate rejected the appellant’s evidence was because of the contents of her account, the observation about the way she answered questions in court was only part of the overall consideration.  The main point in para. 16 of the Statement of Finding was that there was no interior pocket in the beige bag and therefor the magistrate rejected the defence suggestion that there could be a mobile phone inside this pocket.  Additionally, the officer said he did not see any mobile phone inside the bag, on the table of the supermarket, or at any time.  The appellant’s suggestion that she did have a phone was not really the point.

24.  Having considered the circumstances, I cannot agree that there was any unfairness involved in the procedure that would have prejudiced the appellant and I see no reason to disturb the magistrate’s findings and conclusion. 

Result

25.  I would dismiss the appeal accordingly.