HKSAR v. YAU KWOK CHU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MAGISTRACY APPEAL NO. 30 OF 1998

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of a charge of theft. He was sentenced to a fine of $4,000.00. He now appeals against his conviction. The particulars of the offence are these:

"Yau Kwok-chu, you are charged that on the 3rd day of September, 1997, at A179-A199, Floor: G, Shop name: Toys 'R' US Company, Shatin, New Town Plaza, Phase 3, in Hong Kong, you did steal one rucksack, nine toy 4WD-cars, 4 numbers of party favours and one cap, totally valued at $975.50 Hong Kong currency, the property of Toys 'R' US Company."

2. The prosecution case was that at about 4:25 p.m. on 3rd September, 1997, a female employee, PW1, working at the shop saw the appellant, who was wearing a red and white striped T-shirt, pushing a shopping trolley and inside it there were a paper bag with the logo of a telephone company and a black rucksack. It is not in dispute that the black rucksack was the property of the shop. Later, PW1 saw the appellant taking something and putting it inside the rucksack. She reported what she saw to the manager who instructed her to keep observation on the appellant. She could see him from close distance with unobstructed view. She was not wearing uniform. PW2, who was the manager of the shop, also saw the appellant in the shop pushing a shopping trolley with a white paper bag and a black bag inside.

3. At about 5:00 p.m. the appellant approached one of the cashier counters to make payment. He picked up a few items from the trolley and paid for them leaving the white bag and the black bag in the trolley. After he had paid for the few items, he pushed the trolley away from the cashier counter to the exit and was stopped by PW2 who asked to see the white bag. The appellant showed PW2 what was inside but when PW2 asked to see the black bag, the appellant refused and said that he was in a hurry. Having said this, he took from the shopping trolley the white bag, the black bag and the few items he had paid for and went to the exit. The black bag was closed and there was nothing else in the trolley. The appellant was stopped by PW2 from leaving with the help of other employees. PW2 told the appellant that if he did not allow him to see the black bag, he would call the security guards or the police. In response to the appellant's suggestion to talk in a room, PW2 took him to the manager's room. There the appellant spoke to PW2 in a whisper: "This is my mistake this time. Give me a chance." Later, security guards of the company arrived and PW1 asked the appellant to open the black bag to see what was inside. The appellant still refused and only opened it after PW2 threatened to call the police. Inside the black bag were the other items listed in the particulars of the charge. These items were taken out from the bag after the police arrived. When the appellant was alone with PW2, he suddenly knelt down and said to PW2: "you should give me a chance or otherwise I will have nothing." He only got up when the police sergeant, who was PW6, returned to the room.

4. The appellant gave evidence. He said that after leaving the police station where he was a Senior Police Constable, he went to the Toys 'R' US shop arriving there at about 3:50 p.m. with a view to buy some toys for himself and for the birthday party of his son on 15th September. He was a collector of small cars. Inside the shop, he put his CSL shopping bag onto a trolley. He had a wallet in his trousers' pocket and a waist bag which carried his pistol. He had picked some toys for himself and chose some 4 wheel driven small vehicles, circular boxes marked with letters NBA, a hat. He also picked a black rucksack and a packet of tissue as he wanted to go to the toilet inside the shop. There was a queue of customers both in front and behind him and when it was his turn to pay, he realized he only had $100.00 odd cash in his wallet. He was carrying a credit card but it was in his waist bag which also contained his service pistol, handcuffs and bullets and it was difficult for him to take the credit card out. Since he only had enough cash to pay for the items which he had chosen for himself, he placed them on the upper compartment of the trolley and left the remaining items on the lower compartment. At the cashier counter, he handed over the few items on the upper compartment to the cashier for payment. He told the cashier to wait for a moment as regards the remaining items, but the cashier ignored him. After he had received changes from the cashier, he pushed the trolley past the counter as there were customers behind him. He had intended to leave the trolley somewhere near the counter and after he had gone to the toilet, he would take out his credit card while he was in the toilet to pay for the remaining goods if he decided to buy them.

5. After he had passed the counter, he was intercepted by PW2 and another employee of the shop. He felt very angry when PW2 asked him to go to talk in a room. He denied stealing the goods and denied having asked for a chance. Before the police arrived, he had tried to settle the matter with PW2 and asked to be given a chance to explain.

6. He called his superior officer to give evidence in regard to his good character and his good record as a police officer.

7. At the outset of the hearing of the appeal, leave was granted to the appellant to adduce fresh evidence in the form of the production of some credit card vouchers which prove that the appellant had on earlier occasions purchased goods at this shop with his credit card. I have considered this evidence and suffices to say that it does not advance the appellant's case to any extent.

8. There is effectively one ground of appeal and that is the conviction is unsafe and unsatisfactory in that the magistrate did not or did not sufficiently take into accounts a number of matters in his evaluation of the evidence. There is no need for me to go through these complaints which were entirely questions of fact and credibility. The magistrate, in my view, had considered and evaluated the evidence with care and fairness. The evidence against the appellant is so clear and compelling, and following the rejection of the appellant's evidence by the magistrate, conviction is inevitable and the only reasonable conclusion.

9. I am satisfied that the conviction is neither unsafe nor unsatisfactory. The appeal is entirely without merit and it is accordingly dismissed.