HKSAR v. LEUNG MAN YIN

HCMA848/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.848 OF 2000

(ON APPEAL FROM ESCC 2002 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 6 July 2000 of one count of theft. The prosecution case was that on 22 May 2000, the appellant entered a shop called "The Body Shop" in Island Beverly Centre in Causeway Bay. The allegation was that in the shop, she took one stick of cosmetic, valued at $45, held that against her body leaving the shop with it. The assistant was said to have stopped the appellant who at that point offered to pay for the cosmetic. The police were called and on arrival, after some investigation, the officer arrested and cautioned the appellant and testified that she replied "It is wrong to steal, did it out of momentary greed and ask for a chance".

2. The appellant gave evidence and said that she did not steal, that she went into the shop, picked up the cosmetic and held that in her right hand, and that she went to the door of the shop to look at the display which was only visible from outside the shop. That such display existed was acknowledged by the prosecution case.

3. There are four grounds of appeal. The first ground of appeal deals with the manner in which the magistrate approached what Mr Percy, counsel for the appellant, argues were four inconsistencies or discrepancies in the evidence of PW1. The first was the manner of the holding of the cosmetic stick and whether a book had been used by the appellant to hide that stick and inconsistency with the statement made by the witness to the police.

4. The magistrate, in his findings, clearly had that evidence in mind. He said at page 14 of the depositions :

"... PW1 gives a clear account of what she observed and what was said and I accept that. She had a clear and unobstructed view of the appellant from a very short distance. She gives detail of how the item was taken and demonstrates how it was held by the appellant and I accept that."

There is some apparent discrepancy between what she said in the witness box and in her statement, but that discrepancy is minor and does not cause me to disbelieve her in any way, shape or form. It is very clear, and I accept the diagram drawn by her, that she was out of the shop when apprehended."

He dealt with this discrepancy properly and effectively.

5. The second and third discrepancies referred to by Mr Percy depend upon construction of answers given by PW1. In the first of these two, the issue is whether or not at one point the evidence of PW1 was inconsistent as to whether the appellant was intercepted, just inside or just outside the shop. It does not matter which, but it is a matter of credit in respect of the witness. It is quite clear on full reading of the evidence in examination, cross-examination and re-examination of this witness that the one reference she makes to the appellant having left the shop was an error. The rest of her evidence is clear, uncontradicted and agrees with the sketch plan she made. There is nothing in this. There is no discrepancy.

6. In respect of the third discrepancy, there was a seeming admission by PW1 as to a denial by the appellant of stealing. This is immediately followed by a clarification by the witness in which she says that the words were never said by the appellant.

7. Mr Percy argues that this was a contradiction and the correction lessened the credit of the witness and ought to have been dealt with by the magistrate. It was fully before the magistrate and I do not accept that there is anything in this particular complaint.

8. The second ground of appeal was that the magistrate failed to consider the result of a discrepancy in the evidence of PW2. PW2 was PC47260. He was asked in examination-in-chief concerning the events when he first arrived at the shop and when he first saw the appellant. He said that at time he did not ask the appellant any questions because the investigation was still going on and that after the investigation, he arrested the appellant. In cross-examination, he was asked it before he finally made the arrest he posed any question and he answered "Yes". There is no contradiction between these answers, the questions related to different times in the passage of events. There is nothing in this ground of appeal.

9. The third ground of appeal was that the magistrate was wrong to draw an adverse influence and reject out of hand the appellant's account that she had an innocent explanation for going outside to look at the display, bearing in mind that the evidence for the prosecution was that the display was only visible from outside. The magistrate set out fully the evidence of the appellant and considered it fully. Mr Percy raises an argument that the magistrate did not deal with the inherent improbability that the appellant would have acted in this way with the witness for the prosecution standing near her and in attendance upon her while she was in the shop.

10. The magistrate had that in the forefront of his mind and described the events which took place in the shop accurately. It is not for me to say that the magistrate did not properly have in mind all the facts nor assess them properly given the manner which he has approached them in his findings.

11. The final ground of appeal is that the conviction is unsafe and unsatisfactory. I do not consider there is anything in the Statement of Findings by the magistrate to leave me to that conclusion.

12. In the submission made by Ms Sin, counsel for the respondent, she makes reference to R. v. Hui Kee-fung, MA196/1994 where Keith J (as he then was) said :

"Appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The Judge does not even see the witnesses. It will be rare indeed for a Judge to say that the findings of fact made by the magistrate were so contrary to the weight of the evidence that doubts as to the correctness of the magistrate's findings exists. There may occasionally be cases in which a defendant believes that he has been the victim of a miscarriage of justice, because the magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of facts made by a court of first instance as so sacrosanct as our system of criminal justice does."

13. I accept the words said by Keith J (as he then was) and apply them to this particular case. The appeal against conviction is dismissed.