R. v. LEE SHIU MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1285 of 1996

______________

______________

______________

J U D G M E N T

______________

1. The appellant was convicted of theft of two video tapes from the KPS Video shop at Hopwell Centre Wanchai. The evidence against him was that the anti theft alarm at the shop entrance was activated at 7.15 p.m. on 26th June 1996 and the appellant was seen walking down the escalator which was near to the shop entrance. The shop assistant chased after him and stopped him. When they returned to the shop and passed the entrance, the alarm was activated. At the time the appellant was carrying a Park N shop shopping bag. This bag was found to contain 4 tapes valued in total $246.00. They belonged to the shop find no payment had been made for them. The appellant offered to pay but he only had $56.50 cash with him.

2. The appellant's evidence was he was not feeling well and took the day off. He went shopping intending to buy tapes for home viewing. At KPS shop he found some Chinese tapes which suited him and he picked them up. Then went to look at the sports tapes. He then found he did not have sufficient money with him and he put down the sports tapes to go to the bank ATM machine to get money forgetting that he was still carrying the Chinese tapes. As he had a terrible flu he did not hear the alarm as he walked past the alarm system at the entrance. When he was called back, he realised it was a misunderstanding and offered to pay for them which was refused by the shop assistant.

3. He told the magistrate that he had taken the drug "Actifed" before he went out. He had been to a stall on the opposite side of Queen's Road and bought two comic books before he went to Park N Shop to find some drug for his flu but he did find any suitable one. On his way out, he asked for a free bag to put in to the letters and the comic books he had with him at the time. He then went to the KPS shop. He did not have any intention to steal anything.

4. The magistrate in his findings stated the essential issue was whether at the material time the appellant had forgotten that the tapes were in the shopping bag. The magistrate considered his evidence that he could obtain a free bag to put inside just two letters and books not convincing. He considered that the effect of "Actifed" did not affect the appellant's hearing nor caused him hearing disability having regard to the appellant's ability to talk without difficulty with all the persons concerned after he had been brought back to the shop. He considered that the appellant walking out of the shop at normal pace was to suggest that he did not have a guilty conscience but that could be a calculated and conscious act to avoid suspicion. But his view was that that at least showed the appellant was very aware of what he was doing shortly before.

5. The magistrate also concluded that the route the appellant took to reach KPS from Park N Shop i.e. "by going up a small staircase beside the entrance to reach the floor above where the KPS Video Shop was" was not a natural and conspicuous route one would take, unless there is a purpose. The magistrate found the appellant not a credible witness. He accepted the evidence of the prosecution and convicted the appellant.

6. The first ground of appeal is that the magistrate was wrong in using his local knowledge but did not make it clear that he was doing so to make a finding against the appellant and/or was wrong to take judicial notice of the locality.

7. Reference is made toR.v. Ng Wai Yuen (1986) HKC 30 where it was held that the magistrate acted improperly in applying his personal knowledge of the local conditions of the crime scene without revealing to the parties at the trial when he made a final assessment of the facts and the magistrate should not have used his own observations to contradict the photographic evidence.

8. This proposition of law is not in dispute. The question is: did the magistrate in the present case use his own personal knowledge to assess the evidence he had to consider? There was evidence that the appellant had followed a small stairway beside Park N Shop to reach the KPS shop which was one floor above the supermarket. On that evidence, the magistrate commented it was not a natural and conspicuous route one would take. Referring to the appellant's performance in the witness box, the magistrate said "he became more prudent and careful when he realised that I know the location well."

9. The magistrate stated that the appellant agreed he did not purchase the books from a shop because there was no book shop.

10. Whether there was or was not a book shop in the locality, there was no evidence. Mr To for the Crown submitted at the opening of this appeal that the magistrate was using his local knowledge in assessing the evidence and because the case was dependent on the credibility of the witnesses, the conviction was unsafe and unsatisfactory. He considered that the appeal should be allowed. Mr Grounds submitted there was no evidence to support the magistrate's finding. The conviction should not be allowed to stand.

11. In the circumstances, the conviction is unsafe and unsatisfactory. Appeal allowed, conviction quashed and fine set aside.