HKSAR v. IVANOVA NEVENA IVANOVA

HCMA 307/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATION REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL CASE NO. 307 OF 2012

(on appeal from STCC 5767 of 2011)

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J U D G M E N T

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Introduction and ground of appeal

1.  Mr Chang, Ms Man with him, counsel for the defendant, raises a couple of grounds of appeal.  I hope I would be excused in dealing with only the first ground since it suffices for disposing of this appeal. 

2.  The ground is that the magistrate has failed to consider or give sufficient weight to the evidence of PW1, a staff member of Muji, from which the defendant was found guilty of stealing certain items, being three steel spoons, a steel fork and a heatproof glass cup, that the defendant noticed that he was glancing at her when she was sliding or slipping a spoon and a fork into the bag that she was carrying on her shoulder.

Facts

3.  The relevant facts can be briefly stated.

4.  On 10 December 2011, sometime after 2 pm, the defendant was in Muji that was situated at 3^rd Floor, New Town Plaza, Phase 3, 2-8 Sha Tin Centre Street, Shatin, New Territories.  After PW1 saw her act of sliding a spoon and a fork into her bag, he informed a supervisor.  The supervisor instructed him to give a shopping basket to the defendant which he did.  Subsequently, the defendant left Muji without making any payment.  PW1 stopped her about 10 metres away from Muji and the five items were eventually found on her. 

The defence

5.  There was no dispute as to her identity or to the fact that she had the items.  She admitted that she did not pay for them.

6.  She gave evidence to tell the story that she had been rejected for a job with a university in Hong Kong, that she was going to a party later that day where she would see the professors who had rejected her, and that her assistant professor boyfriend in Hong Kong had left for an operation overseas and she had not heard from him.  All these matters occupied her mind and she was not too much herself.  Moreover, when she saw that the cashier counter was full of people queuing up she thought of going downstairs to pay for the items she had taken, thinking that Yata Department Store occupied several storeys and Muji was but part of it and her experience in Tokyo where she had lived for seven years was that one could pay on any of the floors of a large department store.

The relevant findings

7.  The importance of whether she realized or was alerted that her act of sliding unpaid items into her bag was being seen by PW1 whom she realised was a staff member of the store was fully recognized by the magistrate who did not believe her evidence.  The magistrate relied on the evidence of PW1 and PW2 (the arresting police officer who came to the scene later) in convicting her. He said in his Statement of Findings (“Findings”):

“41. I am satisfied and I am sure full weight is to be attached to the evidence given by PW1 and PW2. As to the defendant’s explanation and evidence in court, I have no hesitation in rejecting them, and I found that the defendant was not honest and reliable.” (Emphasis added.)

8.  Addressing the issue whether the defendant was alerted, the magistrate stated in his Findings:

“45. The defendant also said that she noticed that PW1 saw her when she put those items into Exhibit P1 [her shoulder bag], and she would not risk her career if she was aware that someone saw what she did, whether the person was a customer or a staff.

46. The first time when PW1 saw the defendant putting those items into P1, PW1 did not follow up the matter, nor did he stop the defendant and asked the defendant why she put those items into Exhibit P1. PW1 left the defendant, and PW1 went somewhere else.

47.  The second time PW1 came across the defendant was at the time when PW1 gave the basket to the defendant.  Again, this time PW1 only gave the defendant the basket, and did not follow up with the defendant any matter to alert the defendant that he saw what the defendant previously did.  I do not find that the action taken by PW1 would have alert (sic) the defendant as suggested by the defence counsel.”

(Emphasis added.)

Discussion

9.  The magistrate well appreciated that if the defendant had been alerted, it would be unlikely that she was dishonest in continuing to keep the items in her bag, not paying for them and leaving Muji with them, or at least there would be a reasonable doubt whether she was so.  As the magistrate had rejected her evidence, finding that she was not honest or reliable, that was full justification for his rejecting her evidence of her awareness of being glanced at by PW1. 

10.  However, PW1 also said in evidence agreeing to questions put by defence counsel that “you made an obvious gesture of glancing into – glancing into her action of sliding things into her bag” and “that drew her attention to your glancing, deliberately glancing”.  The only place in the Findings that may be said to be touching on this evidence is paragraphs 45, 46 and 47 cited above.  In my view, however, PW1’s acts described in paragraphs 46 and 47 refer to other portions of the evidence and not the above positive answers of PW1 to the questions of the cross-examiner.

11.  Indeed, from the record it is clear that PW1 said the following in the course of his testimony at different stages:

In-chief	(a) “At that time she didn’t see me”. (b) “she didn’t see anything”. (c) “At that time I pretended I see nothing, and went back to the computer table”.
In cross-examination	(d) When being put that “when the defendant was putting things inside, she noticed you” …, PW1 answered: “she shouldn’t have seen me”.

12.  It was only when the CCTV recording of Muji covering the material time was being played during the latter part of his cross-examination that PW1 accepted that he had made a deliberate glance at the defendant during her action of sliding things into her bag and that drew her attention.  Moreover, PW1 all along told the court that he was wearing staff uniform, which was a shirt and his name tag was on the left top corner of the shirt.  He also said that after his glancing at the defendant he went to the staff corner.  It is difficult in the light of such evidence of PW1, to whose evidence the magistrate attached full weight, to see how the conclusion as stated in the last sentence of paragraph 47 of the Findings could be consistent.  Had the magistrate spelt out with adequate reason why he did not consider the evidence of PW1 in cross-examination with the assistance of the CCTV recording acceptable or had he explained how there was no reasonable doubt regarding the defendant’s dishonesty despite being alerted by PW1’s glancing at her act of slipping unpaid items into her bag, the matter might be viewed differently.

13.  The magistrate in his Findings expressly reminded himself that when drawing inference from the evidence, the inference must be a sole and irresistible one that no reasonable man could fail to draw from the proved facts; that the defendant has to prove nothing; a case where the defendant gives evidence and is not believed is no different from one in which the defendant gives no evidence at all; and that in either case, the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.  All these are important principles in our criminal justice system and we should not be seen as paying only lip service to them.

14.  In the instant case, if PW1’s glance at the defendant’s act of slipping unpaid items of the shop into her bag was noticeable to her, and this was PW1’s evidence which was not rejected by the magistrate, there must be a certain degree of doubt whether her defence of her mind being preoccupied by the worrying things relating to her job prospect as well as her relationship with her boyfriend may be true.  Or alternatively, there may at least be two choices open, between a case on the one hand where she was a daring thief who turned a blind eye to the risk involved given rise by her act of misappropriation being noticed by a staff of the shop, or where she was stupidly hoping that she could escape the consequence by just leaving the shop despite having been noticed, or where she was a careless thief disregarding her act of putting things into her bag having been seen by a staff member, and on the other hand a case that she did not have the dishonest intent to steal the items and not paying for them.  Where either choice cannot be said to be an irresistible inference, the case pointing to guilt cannot be the only irresistible conclusion.  The availability of the choices not only makes one’s mind boggle which of the versions is more compatible with reason, but also generates a reasonable doubt that she might not have the mens rea in committing the crime.  In such circumstances, it would be unsafe to convict.

Conclusion

15.  For these reasons, I consider the verdict unsafe and unsatisfactory.  It is quashed and the sentence of a fine of $2,000 imposed on the defendant is set aside.