HKSAR v. POON WAI KIN REMUS

HCMA 1205/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1205 OF 2004

(ON APPEAL FROM KTCC 6990/2004)

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J U D G M E N T

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1.  The appellant was convicted of a single charge of theft after a trial in which he represented himself, as he does in these proceedings.  The Magistrate found that the appellant had stolen a pair of underpants from Sincere Company on 22 May 2004.  The Appellant appeals the conviction.

2.  There was no challenge by the appellant to the fact that the Appellant had left the shop wearing the underpants, without paying for them: he had picked up the underpants as well as another item, entered a changing booth, put on the underpants over another pair of underpants which he was wearing, replaced his trousers, emerged from the booth, replaced the other item on the shelf and left the shop.  His actions outside the booth had been observed by a security officer of the shop who intercepted the appellant.  The wrapping of the underpants was found in the appellant's shoulder bag: when later searched by the police, he was found be wearing the underpants themselves.

3.  It was not disputed that the appellant had apologised to the security officer, offered payment and asked to be given a chance.  The Magistrate did not regard these words as being probative of guilt, observing that they may equally have been said by an innocent man as by a guilty one.  However, when the appellant came to give evidence he testified that he had explained to the security officer that he was unaware of what he was doing at the time: this had not been put to the security officer at any stage.

4.  The appellant made what may rightly regarded as admissions to a police officer who arrived at the scene: these admissions were subsequently reduced to writing.  However, the appellant indicated to the Magistrate that he had been induced to say these things.  The Magistrate carefully approach the issue of admissibility, finding that indeed there had been an inducement.  He consequently ruled the admissions to be inadmissible in evidence and disregarded them in coming to his decision.

5.  The appellant elected to give evidence in his defence.  He said that for an inexplicable reason he had gone to Mongkok station after finishing work, randomly entered the shop and selected goods.  He recalled selecting the underpants and taking them to a changing booth because he wanted to try them on to see if they fitted him.  He put them on over his own underpants, replaced his trousers and walked around the shop until intercepted by the security officer.  He told the Magistrate that although he was wearing the underpants at the time he was unaware of it: for 10 days leading up to the event he had "not really known what he was doing".  He took various medications for insomnia and went through phases of not knowing what he was doing although he attributed these phases to pressure of work and unhappiness in his family life, not to the medication.  It was only when the security officer intercepted him that he realised he was wearing the underpants.  He testified that he was unable to recall how the wrapping had found its way into his shoulder bag.

6.  He also told the Magistrate that when he had tried on the underpants he found they did not fit him so he had not intended to buy them nor had he intended to leave the store without paying for them.  He simply was unaware that he was still wearing them.  When he was cross-examined he accepted that he had remembered to replace on the shelf the other item taken by him.  He said that he had tried on the underpants because his weight was changeable so no single size of underpants fitted him consistently.

7.  Unsurprisingly, the Magistrate rejected the appellant's version for the cogent reasons which he set out succinctly in his statement of findings.  He was satisfied that the appellant was fully aware of what he was doing, that he was fully aware of the fact that he was wearing the underpants when he left the shop and that he intended not to make payment for them.

8.  He specifically addressed the issue of the Appellant’s state of mind both as to whether he knew what he was doing and as to his intention to steal.  He decided, as he was entitled, simply that the Appellant was not telling the truth.

9.  One matter falls for comment.  In the course of his final submissions the appellant indicated that he was "an upright person".  The Magistrate assumed, in favour of the appellant, that this meant that he had no previous criminal convictions.  Consequently in coming to his decision in the Magistrate took this into account in the appellant's favour on the bases he was so required.  The Magistrate rose for a short while to consider this matter.  Having arrived at his decision, he returned to court and only at that stage was told by the prosecutor that the appellant was, as a matter of fact, of previous good character.  The Magistrate specifically addressed this issue both in his oral reasons given at the time of conviction and in his statement of findings, indicating that because he had made the assumption in favour of the appellant, it was unnecessary for him to reconsider his decision. 

10.  It is unfortunate, however, that the prosecutor failed to make known the appellant's good character to the Magistrate.  It is particularly important that prosecutors ensure that this information is placed before the court, especially where an accused is unrepresented.  In the present matter the appellant had the benefit of the Magistrate's ability and experience to ensure that all matters in his favour of which the Magistrate was aware were properly taken into account.

11.  The appellant was properly convicted.  The trial was a model of fairness.  The appeal is dismissed.