HKSAR v. SUEN WOON CHUN

HCMA 516/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 516 OF 2001

(ON APPEAL FROM ESCC 4009/2000)

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J U D G M E N T

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1. This is an appeal against the conviction of the appellant at Eastern Magistracy on 21 April of this year for an offence of theft committed on 29 September 2000. On Tuesday of this week I dismissed the appeal and said that I would hand down my reasons in writing within a day or two. These are my reasons.

2. The essential facts which led to the appellant's prosecution can be recited as follows :

3. Just after 2 p.m. on 29 September she entered the Marks and Spencer shop in Times Square. That shop is set out on 2 floors connected by a staircase. The appellant was observed by a security guard to remove a shirt from a rack on the lower of the 2 floors and to place it into a plastic bag which she was carrying. She then walked up the staircase, took 3 boxes of biscuits from a shelf and paid for those biscuits which were placed by the shop assistant into a Marks and Spencer bag which was then handed over to her.

4. The appellant was then seen by the security guard to return to the shelves on which biscuits were displayed and she took 2 further boxes and placed them into the Marks and Spencer bag which she had earlier been given. She left the shop (without having paid for either the shirt or the 2 boxes of biscuits) followed by the security guard who intercepted her outside a shoe shop on the other side of a corridor, and returned with her to a security room in Marks and Spencer where she was subsequently arrested by a police officer and cautioned. In response to that caution the appellant said that she did not steal the items in question: that she had gone to look at the shoes intending thereafter to pay for the items which she had taken.

5. During her trial the appellant gave evidence and said, inter alia, that on the day in question her eye sight was troubling her and that she had blurred vision. She said that she had never been into the Times Square Marks and Spencer before; that she had put the shirt into her bag because she wanted to have a free hand to hold onto the staircase railings and that when she went to pay for the 3 boxes of biscuits it was her intention at the same time to pay for the shirt but after waiting for a while at the payment desk she forgot about it.

6. The appellant went on to say that she picked up the 2 other boxes of biscuits intending to pay for them later when she had completed her shopping and she caught sight of the shoe shop which she thought was an itegral part of the Marks and Spencer shop (because it too had a green sign) and went across to it to look at shoes not realising that she had in fact left the Marks and Spencer premises.

7. In his full and helpful statement of findings the Learned Magistrate, having recited the evidence presented to him, concluded that he did not believe the appellant's evidence. In particular he stated that on the evidence before him which he did accept the inference that the appellant had taken the shirt and the 2 boxes of biscuits intending not to pay for them was irresistible.

8. On behalf of the appellant Mr Philip Wong advanced 4 grounds of appeal as follows:

"Ground 1

The Learned Magistrate failed to analyse the evidence and thus failed to give adequate reasons upon coming to conclusions that PW1's evidence was to be accepted and the Appellant's evidence was to be rejected.

Ground 2

The Learned Magistrate erred in rejecting the Defence of mistake of the Appellant upon the finding that her evidence on the same was unreasonable and unbelievable, thus was rejecting the said Defence as unbelievable because it was unreasonable.

Ground 3

(a) There was a material irregularity in the trial in that the allegations in the charge sheet and the brief facts and the evidence adduced in the trial disclosed that there was allegedly two distinct appropriations without payments by the Appellant which appropriations were subjected to two different defences of respectively forgetfulness and mistake but the Learned Magistrate failed to make the necessary amendment in the charge against the Appellant.

(b) Also the Learned Trial Magistrate erred in adopting one approach, i.e. that the Appellant's evidence was unreasonable and unbelievable in rejecting the aforesaid 2 different defences of the Appellant on the 2 thefts allegedly committed by the Appellant.

Ground 4

In all the circumstances, the conviction is unsafe and unsatisfactory."

9. In relation to the first of these grounds, if I have understood his argument correctly, Mr Wong says that whilst the Learned Magistrate set out in his statement of findings eleven matters which he said he had taken into account in assessing the appellant's evidence, he did not then go on to state what his finding was in respect of each and every one of those matters.

10. The matters that he listed, (and it was plainly not an exhaustive list because he said at the outset - "The Defendant gave evidence, when I assessed her evidence I took into account matters including the following.....") were matters that the appellant had asserted either upon her arrest or in evidence.

11. Having set out that list the Learned Magistrate went on to conclude that the appellant had not been telling the truth and that he did not accept her evidence. In particular he said that he was satisfied that:

(1) the appellant had taken the items in question as alleged by the prosecution;

(2) she left the Marks and Spencer shop without making payment for those items;

(3) she was stopped outside the shoe shop in the manner described by the security guard;

(4) that whilst she said that she believed that the shoe shop was within the confines of the Marks and Spencer shop that was not true;

(5) that whilst she claimed that it was her intention to pay for all of the items 'in one go' that was not true; and

(6) that whilst she asserted that she had forgotten about the T-shirt when she paid for the 3 packets of biscuits that was not true.

12. Whilst it is so that the Learned Magistrate did not make specific findings about the appellant's assertions that her eye sight was affected that day; that it was the first time that she had visited that Marks and Spencer shop and about other peripheral matters the fact is, as I have said, that the Learned Magistrate found that he did not believe her evidence, and he gave reasons for that conclusion.

13. In my view he cannot be faulted in his statement of findings generally or for his analysis of the evidence which was before him. Nor can it be said with any justification whatsoever that he failed to give adequate reasons for his rejection of the appellant's evidence.

14. There is nothing in this ground of appeal.

15. As to the 2nd ground this, in my view having listened to Mr Wong, embraces in effect the same argument advanced (in a somewhat different and less understandable guise) in support of the 1st ground and it too fails.

16. As regards Ground 3 this might have held some attraction in circumstances other than those which attached to this trial. Whilst it is at least arguable that the charge facing the appellant was duplicitous in that separate defences were advanced for the 2 separate appropriations, no objection was taken by the defence in the court below - presumably because no prejudice or unfairness was perceived, and this was not a trial before a jury whose verdict without further enquiry might be ambiguous, but a trial before a Magistrate who (by reason of the content of his statement of findings) was plainly alive to the fact that there were 2 appropriations and that the appellant was putting forward different reasons for her failure to pay in respect of each of them. There was no ambiguity in his findings and there was no material irregularity, and accordingly this ground of appeal also fails.

17. I conclude these reasons by saying that, in my view, the appellant's conviction was neither unsafe nor unsatisfactory.