HKSAR v. NG SAI CHAK

HCMA 963/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 963 OF 1998

(On Appeal From KTC 1693/1998)

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J U D G M E N T

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1. This Appellant appeals against his conviction in the magistracy of one count of Theft, the theft being a shoplifting. The facts were that Appellant was stopped leaving a supermarket checkout counter in possession of items for which he had not paid.

2. Prior to the appeal, a Declaration was made and filed in Court by the Appellant. That annexed a medical certificate, dated 19th October 1998, which stated that when examined the Appellant was suffering from and currently under treatment for tinnitis, ulcer pain and allergic rhinitis. No indication was given of the treatment for those conditions. The Respondent objected to production of the certificate on the grounds that it was obtained some weeks after the alleged offence and indeed some weeks after the Magistrate's Statement of Findings was prepared. However, I accept the Declaration for what it is worth, in considering this appeal.

3. The first ground of appeal was that the Magistrate erred in law by finding that P.W.1, the checkout cashier, gave a clear account of what she observed when in fact she made seriously inconsistent statements that the Magistrate failed to take into account in assessing her evidence. This inconsistency related to the position of the Appellant's basket and the checkout operator's view of the basket, immediately prior to the Appellant's approaching the checkout counter and afterwards.

4. I am not satisfied that the Appellant's counsel has established that there was a clear inconsistency that the Magistrate did not address. The Magistrate took into account and accepted the evidence of PW1 who was the main witness. The alleged inconsistency is not in my view, an inconsistency that was so serious that the Magistrate was required to examine it minutely. Accordingly, this ground of appeal does not succeed.

5. The second ground was that the Magistrate failed to consider the possible effect of medication being taken by Appellant and made no reference to it in his findings. The Appellant gave evidence at the trial that he was taking medication called "Piriton" and "Weisen-U". The Magistrate was not provided with any other evidence in respect of those medicines. It was stated by Appellant that the "Piriton" was for a nose allergy and the "Weisen-U" for stomach-ache. No evidence was called as to whether or not the medicines were on or off prescription; what the dosages were, or what the effects and side effects were.

6. The Magistrate in his Statement of Findings did consider this question and stated that he did not accept that Appellant was affected by the medicine to any marked degree, or that he was deaf as the Appellant had claimed. The Magistrate may have accepted that the Appellant had taken this medication, but did not believe Appellant's account of its effect on him and did not believe any of the Appellant's story otherwise.

7. I am satisfied that the Magistrate examined the evidence properly and that there was ample evidence on which he could convict this Appellant. The appeal against conviction is dismissed.