THE QUEEN v. CHAN YUK YING

Magistracy Appeal No. 439 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

(APPELLATE JURISDICTION)

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BETWEEN

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J U D G M E N T

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1. On 2nd October 1992 I heard this Appellant's appeal against her conviction for theft on 9th April 1992 by Mr. T. Jenkins. On that occasion I announced that I would allow the appeal, quash the conviction and set aside the fine but would give my reasons later which I now do.

2. The Appellant was charged on 3rd February 1992 that at Meyer Company shop at Telford Centre, Kowloon, she stole one cooking pot valued at HK$395.80, the property of the Meyer Company.

3. The basic facts were agreed and the only witness called was the Appellant. She is a married woman. She lives with her two sons in Hong Kong although they are planning to emigrate to Canada. she told the Magistrate that on 3rd February 1992 in the evening she went to the Meyer Company shop with her 10 year old son. She had with her a cooking pot which she had purchased from that shop some 5 months before. She told the Magistrate that before she had bought this cooking pot she had spoken to the manageress or proprietress who promised that she could change it for something else if it was not right for her use. She took the pot home but her mother did not like it and the Appellant put the pot away unused and forgot about it for some five months. When she was cleaning the house out before a Chinese holiday, she noticed the pot and thus on 3rd February 1992 she put the pot in a bag and went back to the shop to change it. She was accompanied by her son.

4. It is common ground that she entered the shop without speaking to anybody and quite openly she took the unwanted pot out of her bag and put it on the shelf, having taken another more acceptable pot in its place. She put the new pot in her bag and together with her son walked out of the shop. She did this because she said that when she bought the pot Mrs. Fong the manageress had told her that she could change it.

5. As she was leaving the shop she was stopped by a shop assistant. It was pointed out to her that the new pot was worth some HK$290 more than the old pot. The Appellant offered to pay the difference but the shop assistant refused and the police were called.

6. The Appellant was cross-examined at some length. She maintained her version that she had been given permission by Mrs. Fong to change the pot. There is no doubt that the Appellant acted somewhat strangely. The Magistrate was clearly not impressed by the fact that she walked into the shop without speaking to anybody and without telling them of the previous arrangement. On the other hand, as Mr. Alderdice stated, she certainly did not act in any secretive way and quite brazenly took the unwanted pot out of the bag and put it on the shelf and took another one. If it was a case of shoplifting it was the most blatant and obvious form of shoplifting which had to be discovered, as indeed it was. The Learned Magistrate was, of course, perfectly entitled to be unimpressed with the Appellant's version. However, there was, in my judgment, a material irregularity which caused me to allow this appeal.

7. It was common ground that the issue was whether or not the Appellant had the permission of Mrs. Fong to exchange the pot if she did not like it. This was crucial to the case. The Defence case rested upon s.3(1) (b) of the Theft Ordinance which simply states that an appropriation of property belonging to another is not dishonest,

"If he appropriates the property in the belief that he would have the other's consent if the other knew of the appropriation and the circumstances of it...."

8. Indeed the Magistrate said this at page 17:

"The Defence pointed out that if I concluded that the Defendant had or may have had that belief I should acquit the Defendant and relied upon a passage in Archbold dealing with similar provisions in the 'Theft Act in the United Kingdom."

9. He then went on to consider the Defendant's evidence, and said this:

"I did not accept her claims that she had an undertaking/promise from the proprietress of the shop to replace the item. ...I concluded that she had never had such an undertaking/promise and therefore she neither did have the belief that the proprietress would have consented to the appropriation nor may have had that belief."

10. The unfortunate thing about this finding is that at no stage during the Appellant's cross-examination was it ever suggested to her that she was not telling the truth when she said she had Mrs. Fong's promise that she could exchange the pot. Let it not be thought that I am suggesting that every single matter in issue between the parties has to be put in great detail. However, it is common ground that this was the most crucial part of the case. So crucial was it that Mr. Cheung, Senior Crown Counsel, who appeared for the Crown on this appeal, fairly and properly conceded that had the Magistrate been satisfied, that the Appellant had or may have had the belief that Mrs. Fong had said she could exchange the pot, then there was no way in which this conviction could be upheld.

11. The problem with the Magistrate concluding that he did not believe the Appellant on this issue where it had never been put to her that she was not telling the truth is as follows. Firstly, the Magistrate deprived himself of the opportunity of hearing the Appellant's insistence that her story was true. I do not know what she would have said had it been fairly and properly put to her that she was not telling the truth. But she may have said something which might have convinced the Magistrate that she was telling the truth. Secondly, as this point was never in issue during the course of the evidence, the Defence had no opportunity to consider whether or not they ought to call Mrs. Fong. The prosecution never called Mrs. Fong to say that no such conversation ever occurred and yet one would have thought they would have done so because they knew from an early stage what the Defence was going to be. I do not know what Mrs. Fong would have said, but for all I know, she might have been prepared to come along and support the version given by the Appellant. The simple fact is that by disbelieving her on a crucial issue upon which she had not been cross-examined, the Defence were deprived of the opportunity, at the very least, of considering what to do in relation to this fact.

12. It is interesting to note that after the magistrate had given his ruling, Mr. Francis who appeared in the court below for the Appellant asked the Magistrate to review his decision because the question of consent had never been challenged. The Magistrate declined to review his decision and said this at p.19 in his written reasons.

"He submitted that because the Crown had not specifically put to the Defendant that she did not have the consent from the proprietress to exchange the items this precluded me from making the finding that I did. I was also of-the view, however, that it was for me at the end of the day to decide on the Defendant's credibility and the Crown's omission was not fatal in the circumstances and did not prevent me making an adverse finding against the Defendant in respect of this issue."

13. With great respect to the Learned Magistrate it was unfair of him to decide a crucial point adversely to the Appellant without her even knowing that the point was at issue and without giving her an opportunity of commenting upon the allegation that she was not telling the truth. In addition, as I have said, the question of calling Mrs. Fong was immaterial in the light of the way in which the prosecution case was presented.

14. It was, of course, most unfortunate that the prosecutor did not put the proper question to the Appellant although at page 9 of the bundle I note that he first put the proper question and then rephrased it so that it was:

"Put it to you that in fact on that day you intended to swop the more expensive pot with P4 - well knowing that P2 is more expensive than P4."

15. That, of course, is a different point as to whether or not the Appellant thought that she was acting with the consent of Mrs. Fong when she exchanged the pots.

16. In my judgment, nobody should be convicted of any criminal offence unless, if they go into the witness's box, they have had an opportunity of dealing with the crucial issues which the court has to determine. In this case, the prosecution were under no misapprehension as to what the Defence was, and they took no steps whatsoever to rebut it or to question the Appellant about it.

17. In the above circumstances, I did not think that it was right and proper for this conviction to stand. In the absence of any application for a retrial I allow the appeal and I quash the conviction and set aside the fine. If the fine and costs have been paid by the Appellant then they are to be refunded to her.