HKSAR v. CHOW SAU WAN

HCMA 698/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 698 OF 2010

(ON APPEAL FROM TMCC 2203/2010)

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REASONS FOR JUDGMENT

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1.  The Appellant was convicted in the Magistracy before Magistrate Stephen Smout on two counts of Theft, contrary to section 9 of the Theft Ordinance,Cap.210. A Drug Addiction Treatment Centre Order was made in respect of each charge. The Appellant appealed against conviction only. On 10 February 2011 I allowed the appeal and advised I would give reasons at a later date. That I now do.

2.  The Appellant was alleged to have committed shop theft on each of 3 and 5 April 2010 from the same Manning’s store.  The prosecution produced CCTV footage of the culprit taking high-priced cosmetic products on each occasion.  The prosecution also relied on 2 cautioned statements and an alleged oral admission by the Appellant.  The prosecution case was that the woman who was shown taking and concealing the items, in each case, was the Appellant.

3.  The Appellant was not represented at trial and defended the charges on the basis that she was not the woman shown in the CCTV footage, that she made no verbal admission and that the statements were not voluntary.

4.  The Appellant gave evidence first on the issue of admissibility and, later, on the general issue.  She claimed that the police had induced her to sign the cautioned statements by threatening to charge her boyfriend with offences if she did not and by allowing her to take a dose of dangerous drugs before going to the police station.  She said that when asked to sign her alleged answers she had signed her name in a different way to show that she was not giving the statements voluntarily.  Her name was Chau Sau Wan and she had signed, in at least 26 places, over the 2 statements, using the name Chau Sau-yuet.  The characters for “Wan” and “Suet” were very similar.

5.  This point was one of the grounds of appeal.  Counsel for the Appellant, Mr Phillip Ross, contended that there was no reason for the Appellant to sign in the wrong name other than to show that she was not giving the information voluntarily.  However, there could be a number of explanations for the signatures appearing as they did.  Without the assistance of a handwriting expert it was not possible for the court to be satisfied, even with help from the court interpreter, that the signatures were deliberate errors, rather than, as the Respondent argued, carelessly written characters.  Despite the efforts of Mr Ross the point was moot and that ground of appeal did not succeed.

6.  The relevant CCTV footage of 3 April 2010 showed clearly a woman in a red jacket taking 2 cosmetic products from a shelf in the store and concealing them in a pram pushed by another woman.  The women separated and the woman in the red jacket went to the cashier’s counter where she purchased some sanitary napkins.

7.  The CCTV footage available did not show where the pram pushed by the other woman went thereafter, nor did it show the pram leaving the shop.

8.  On 5 April 2010 the CCTV footage showed the same woman in the same red jacket take an expensive cosmetic product from a shelf. She placed it in a Mannings plastic bag, which contained 2 hair colouring products that the woman in the red jacket had purchased earlier together with the plastic bag.  On this occasion the woman appeared to be acting alone .

9.  Counsel for the Appellant submitted that the woman in the red jacket was not the Appellant. The Magistrate in his Statement of Findings rightly had serious doubts as to the identification and could not be certain beyond reasonable doubt that the woman shown in the footage was the Appellant.  In his Statement of Findings he stated:

“ Looking at the CCTV footage in isolation, without considering the other evidence, I believe I could not be satisfied beyond a reasonable doubt that the woman in the red upper garment, seen on both 3 and 5 April was the defendant. However, I do not regard any discrepancy between the defendant’s height and PW1’s estimate of the height of the person in the CCTV footage to be significant.

         It would be difficult for PW1 to guess with exactness the height of persons seen in the CCTV footage.  The CCTV footage is not the only evidence the prosecution has adduced.  They also rely on admissions made under caution at the scene of her arrest, and also the defendant’s subsequent statements when interviewed, which I have found all to be voluntary.”

10.  The Magistrate accepted the evidence of PW1, the manager of the shop and commented:

“PW1 was not asked if she could recognize the person in the red upper garment seen in the CCTV footage. She did not identify the defendant to be that person.”

11.  On appeal the court was able to view the CCTV footage and, more usefully, some still photographs which had been extracted from that footage.  From a reading of the trial transcript and the exhibit list it appears that the Magistrate did not have the advantage of seeing the still photographs.  If he had done so the difficulties he had with the identification would have been resolved and in all likelihood he would have been satisfied that the woman in the red jacket was not this Appellant.

12.  The CCTV footage enables a viewer to be satisfied beyond reasonable doubt that the woman in the red jacket, as seen on 3 April was the same woman, in the same jacket, as is seen on 5 April.  What the viewer cannot be sure of is whether that woman was the Appellant.  It is possible to say however that the woman in the still photographs taken from the CCTV footage is not the Appellant.  The still photographs support the Appellant’s submission that she is not the woman in the CCTV footage.

13.  The woman in the red jacket was significantly shorter, of a different body type, had a different hairline, had plumper cheeks and a more cheerful demeanour in repose than did the Appellant.

14.  PW1 when cross-examined said she had assessed the height of the woman in the red jacket as 5ft 6in or 5ft 7in tall.  She claimed she was able to do so with reference to the height of the shelf units in the shop.  The still photographs show that the woman was shorter than that height - she was significantly below the height of the shelf unit against which she was photographed.

15.  The Magistrate disregarded as insignificant any discrepancy between the defendant’s height and PW1’s estimate of the height of the woman in the red jacket, but the still photos show that the woman in the red jacket was noticeably shorter than the Appellant.

16.  If the Magistrate were satisfied that the Appellant was not the woman in red, the admissibility of the cautioned statements became highly suspect.  There were a number of anomalies in regard to the obtaining of the statements.  The Appellant was not arrested until 2 July 2010 some 3 months, after the incidents and although it was not clear why it was that she was investigated at that time it appears that the Appellant herself thought she may have been on a wanted list of shop thieves.  The police witness, PW2, gave evidence that the police had watched the CCTV footage – but neither he nor the shop manager had identified the Appellant from that footage.

17.  The Appellant claimed she had been asked to admit to one or 2 shoplifting offences so the police could clear a backlog.  She claimed too that she had been induced to make the false statement to protect her boyfriend from being charged and to prevent trouble for her family.  She said and was told she could take a dose of dangerous drugs before going to the police station and did so while police searched her room.

18.  Unusually, the preamble to the statements does not refer to the alleged dates or times of the thefts, although the police had that information.  Nor in the statements does the Appellant give the dates on which she was alleged to have committed the thefts.  The verbal admission, which the Appellant denied making, “Ah sir I stole from Mannings just because I did not have money – give me a chance” is non-specific.  The thefts are mentioned in vague terms; the Appellant says she stole 2 items on one day and one on the other.  It is possible that the Appellant, if she made such admissions at all, could have been referring to a shoplifting venture in the previous year.

19.  She claimed she signed the answers in the statements but that she deliberately did not use her own name when forming the signature.

20.  Be that as it may it is clear that the woman in the red jackets took the items alleged to be stolen - she did so on both the 3 and 5 April.  

21.  The still photographs point with near certainty to the fact that the Appellant was not the woman shown in the CCTV footage.  If she was not that woman, or if she might not have been that woman, the existence of the cautioned statements cannot be relied on to convict her.  In any event, the provenance and contents of the cautioned statements required very careful scrutiny.

22.  Even assuming that the statements were obtained with due propriety, the lack of detail about dates and times in the preambles and the body of the statements make it impossible to draw an irresistible inference that they relate to the offences allegedly committed on the 3 and 5 April 2010.  They could relate to some other dates, or to uncharged offences, or, as the Appellant told the Magistrate in court, might have been connected with her having stolen things from the same Mannings shop “last year”.

23.  In the circumstances it was not possible to be satisfied about identification, or that the quality of the confession evidence made these convictions safe.  Accordingly I allowed the appeal against convictions.