R. v. LAM MO SZE

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 307 OF 1996

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J U D G M E N T

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1. The Appellant was convicted of theft and was fined $1,000.

2. The prosecution case was based on admitted facts. The facts show that PW1 was a carpark attendant and on 7th October 1995 at 0745 hrs she impounded a private car by locking it with a chain and padlock to a pole because the car had been parked in the carpark for more than 48 hours. She put a notice on the windscreen of the car informing the owner that the car had been impounded. She also took a photograph of the impounded car. On 8th October 1995 at 2100 hrs during her patrol, she saw the car was still there. Two hours later at 2300 hrs she found the car had been driven away. The chain and padlock were missing.

3. The Appellant was arrested on 10th October 1995. She told the police that her boyfriend who rented a carparking space in the carpark had allowed her to use the parking space. On a date in early October she drove the private car into the carpark and found the parking space occupied. She thus parked the private car in a nearby parking space. The car was left there for 4-5 days and later she drove it away. When she did so, the car was not impounded.

4. The Appellant's evidence was that she was a university graduate and manager of a toy company. She had a clear record. What she told the magistrate in evidence was substantially the same as she told the police. In addition she said when she drove the car away, she presented to the gate attendant the monthly parking pass bought by her boyfriend and no question was raised as she left. She denied taking away the padlock and chain.

5. The magistrate found the parking infringed the parking regulations of the carpark and impounding the car was proper. He found there was no direct evidence that the Appellant took the padlock and chain. He also found the Appellant would not have taken away the padlock and chain out of greed and bearing in mind her education and occupation, she would not have acted out of her character to steal the two items which were of very little value and use to her. Nevertheless he found the Appellant stole the two items because she wanted to avoid paying the impounding fees which she felt not justified.

6. The notice which was said to have been placed on the windscreen of the private car was produced in evidence. The date was 7th October 1995 and the time written on it was 0045 hrs. It is apparent that the time of issue of this notice is very much different from the time according to PW1 in the admitted facts, of the impounding of the car. The time stated by PW1 was 0745 hrs. It is difficult to see how some 7 hours prior to the impounding, this notice could have been issued. The magistrate had referred to this notice in his statement of findings but the discrepancy in time had not been considered by the magistrate. The photograph was also produced. The date on the photograph was 8th October 1995. If the impounding was on 7th October 1995 and immediately thereafter a photograph of the impounded car was taken, it is difficult to see how a different date could have come into being. It would appear that the magistrate had not considered this discrepancy in dates. Mr Wong for the prosecution informed me that the notice produced before the magistrate was the original notice. That being the case, if it had been placed on the windscreen of the car, it would have gone with the car when it was driven away. How the original of this notice came to be back in the hands of the carpark was never explained. Mr Wong informed me that it was found on the floor of the carpark but there was no evidence as to that. This adds to the mystery of the case. Further, there was no evidence of the regulations which the parking of the car was said to have infringed. The question of whether the Appellant, even if it had been proved that she had removed the padlock and chain, had the necessary dishonest intent for theft had not been canvassed. She would not have been guilty of theft if she had the right to park and the impounding was unlawful and she believed that she had the right to remove the padlock and chain to enable her to collect the car. Mr Wong informed me that in view of the unsatisfactory state of evidence and legal position, the Crown did not seek to support the conviction. The Appeal against conviction is allowed. The conviction is quashed and the sentence set aside. The fine is to return to the Appellant.