R. v. ESTHER Y. SOHN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1568 OF 1994

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J U D G M E N T

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1. The appellant was convicted before a magistrate of one charge of theft. She was fined $2,000 and ordered to pay costs in the sum of $750. She now appeals against conviction.

2. Mr. King who appears for the appellant before me advanced two grounds. The first ground was that the magistrate erred in finding and relying as evidence to convict that the shopping bag, exhibit P1, was empty whereas there was an entry in the notebook of a woman police constable who searched the bag in the supermarket that the shopping bag did contain personal articles of the appellant in addition to the three items she had allegedly stolen. Mr. King complained that the notebook was not produced at the trial nor its existence disclosed to the defence. He applied for leave to adduce this entry as fresh evidence and I granted leave pursuant to section 118 (1)(b) of the Magistrates Ordinance after hearing argument. The entry confirmed that personal articles were found in addition to the three items already mentioned.

3. The second ground was in relation to the evidence of Dr. Green. At page 33 of the Appeal Bundle, the magistrate said:

"Dr. Green agreed that he couldn't tell her state of mind at arrest, no one can - I find case proved beyond reasonable doubt."

4. Mr. King submitted that this did not accurately represent Dr. Green's evidence because what the doctor said in effect was that the appellant was chronically depressed at the time of the alleged offence and that this depression was responsible for her behaviour.

5. In my judgment, this appeal must be decided on the evidence of PW1 Pun Yuk-wah, the security guard, which the magistrate accepted. The evidence of this witness is so important and I will set out the examination-in-chief in full. The cross-examination really adds nothing and I will not repeat the questions and answers. This is what PW1 said in chief:

"I was on duty in plainclothes at Wellcome, Landmark. About 9.35 a.m. in Supermarket I saw Defendant - when I patrol food shelf I saw her carrying an apricot colour handbag on right shoulder - She had this in right hand. Bag marked P1. In her right hand also holding Wellcome Supermarket bag containing three lemons.

I saw her use left hand to take from shelf box of sliced papaya. Shown photo - shows papaya. I saw her look right and left and walk away quickly, hurried pace. I was about 7 feet from her - I was curious about her and followed behind her - I saw that whilst walking, she put papaya from left hand into (P1). She was carrying P1 in right hand. RIGHT EXTENDING DOWNWARDS CARRYING BAG. DEMONSTRATES INSERTION OF LEFT HAND IN BAG. She was about 10 feet from food shelf she had taken it from. I saw her walk to distilled water shelf. I saw her use left hand to take 3 bottles of water from shelf - looked right and left and put them in same bag. They were put into bag one by one - took bottles separately - she put one in and then took another etc. SHOWN. THREE BOTTLES - P2. I saw her walk to magazine shelf - I saw her use left hand to take set of English newspaper from shelf. SOUTH CHINA MORNING POST 24/5/94 SHOWN - There is a chop showing Landmark - P3. I saw her take away P3, walk away, looked left and right and put the P3 in bag in right hand i.e. in P1. I saw her walk to cashier counter 403.

Q. From time of putting newspaper in bag to going to counter - how long was that?

A. Around one minute.

Q. What did Defendant do in one minute?

A. After putting newspaper in bag she proceed to 403 counter - I saw her place the lemons in right hand onto the belt for the cashier to process.

Q. How did she carry plastic bag of lemons?

A. She hold lemon bag with the right hand and P1 together - lemon bag on outside of P1.

Q. Did Defendant pay for lemon - where did she get money?

A. Yes, she got money from apricot handbag carrying on shoulder.

Q. What happened?

A. I saw her only pay for lemons, but not goods put in P1. I saw her walk straight out of Wellcome and I chased out of door to stop her.

Q. From time you first saw her, to time she paid for lemons - how long was that?

A. About 15 minutes.

Q. You stopped Defendant outside Wellcome?

A. Yes, I said 'I am a security guard of Wellcome, you have not paid for papaya, distilled water and newspaper in bag, so you must follow me back to office' - I said it in English. Defendant replied 'I will pay now don't report to police' - she replied in English. Then Defendant was taken back to office. PUTS WATER, NEWSPAPER INTO P1. At office I asked her to take items out by herself, and besides P2/P3 there was the papaya, nothing else. Total value of items is $36.40. Police were summonsed to scene. Later on papaya returned to me. SHOWN PHOTO - P1 to 3 and papaya - P4."

6. This evidence is so clear, cogent and compelling. There can be no other reasonable inference to be drawn from it except the inference of guilt. Once the evidence was accepted and it was accepted by the magistrate, it proves both the actus reus and mens rea of the appellant beyond reasonable doubt and on a consideration of the evidence as a whole conviction must follow as day follows night.

7. The appeal in dismissed.