HKSAR v. CHIK WAI MING WHITMAN

HCMA626/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.626 OF 2000

(ON APPEAL FROM TWCC 3365 OF 1999)

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. The appellant was charged with the offence of theft. The particulars alleged that the appellant had, on 10 October 1999, at Marks & Spencers (HK) Ltd, Discovery Park Shopping Centre, 398, Castle Peak Road, Tsuen Wan, in Hong Kong, stolen a panties with a hanger valued at HK$69 in total, the property of the Marks & Spencers (HK) Ltd. The appellant denied the offence and was convicted after the trial. She now appeals against the conviction.

2. The case was a relatively simple one. PW1, the store detective, gave evidence regarding how she had observed the appellant at the shop. She said that she saw the appellant, while inside the shop, put the pants and the hanger into her own shopping bag. She then walked to the doorway. There she withdrew the hanger from her bag and discarded it. The pants remained inside the bag. Afterwards, the appellant walked out of the shop. PW1 went to intercept her near the escalator. At that time, the appellant responded by saying sorry and offered to pay. She also claimed to be feeling unwell.

3. The other prosecutor witness was PW2. He was the police officer who attended the scene after the incident. He testified that the appellant did not answer when he asked her what had happened and made no reply under caution. However, the appellant did tell him about her medication and even showed him the pills she had to take.

4. The appellant gave evidence herself. She said that she used to buy underwear from the shop but she would usually discard the hangers after paying for the items. On this occasion, she was aware that she had not paid yet when she was discarding the hanger but she was intending to pay for the item afterwards. She said that she was being stopped inside the shop, not outside. She denied having put the pants into her own bag, she said she was carrying it under her armpit. She further explained to the court about her psychiatric problems. Under cross-examination, she said she was very tired at the time, mentally as well as physically.

5. After having succinctly summarized the evidence, the learned magistrate stated the following findings in her Statement of Findings :

"In determining the facts I carefully considered the evidence of all of the witnesses the content of their evidence and the manner in which it was given. I also bore in mind the Appellant's clear record under both limbs of Barrada, the fact that she requires constant medication, and her general condition that day. Her need for medication, and her physical and mental condition were relevant only to explain her conduct that day.

It is not disputed that she discarded a hanger in a rubbish bin which was away from the underwear section and immediately adjacent to the exit from Marks and Spencers. She would then have to return to find a cashiers desk inside the shop, as she stated she knew she had not yet paid for the item. I found the Appellant to be a dishonest witness. I found PW1 and PW2 to be truthful, honest and reliable witnesses, and I accepted their evidence as the truth of what occurred. The conduct as described by PW1 was clearly done with intent, particularly the removal of the hanger from inside the shopping bag, and the leaving of the shop.

I found that the Appellant removed the hanger and the pants from the store shelf, folded them and placed them in her shopping bag. That she called to her daughter and removed the hanger from her bag, the pants remaining in the bag, and discarded the hanger in the rubbish bin by the exit from the shop, and that she then left the shop. I therefore found the charge proved beyond all reasonable doubt and so that I was sure and I convicted her accordingly."

6. The appellant was unrepresented at the time of appeal. She had raised a number of grounds in support of her appeal. However, most of the matters raised were in relation to the factual findings. I had explained to the appellant already that in dealing with the appeal, I would not venture to conduct a re-assessment of the credibility of the witnesses. That would be a matter for the trial magistrate who had the opportunity to see and hear the witnesses. However, the appellant also mentioned that she was not satisfied with the performance of her lawyer. She alleged that he had not prepared for the trial sufficiently and her husband, who was present at the scene and was going to testify, was advised not to do so.

7. In order to find out what had taken place at the trial, I had ordered for the transcript. On the face of it, I could see nothing wrong in the conduct of the trial by the defence lawyer. He had cross-examined the witnesses, and had put forward the defence case, albeit in a brief manner. If there were one criticism to be made, it would be in connection with the issue of the mental condition of the appellant. In my view, the lawyer had not assisted the court in a clear manner. In his final submission, at first, he said that the defence was not absent-mindedness. Later, he seemed to change the ground and submitted that it was an absent-mindedness defence and therefore the appellant did not have the necessary mens rea to commit the offence. Regarding the complaint against the lawyer's performance, in view of the rather long lapse of time, I had decided not to invite him to submit an explanation. I believe I should decide the case according to the existing material.

8. In the resumed hearing, the appellant had presented me with another set of written submissions. I had read it carefully, and I had also reflected on the case as a whole. I took the view that the decision by the learned magistrate could not be faulted. She had decided the case on the evidence presented and I could see nothing wrong by way of her analysis of the evidence. She was entitled to make such findings after rejecting the evidence of the appellant. The grounds of appeal, in so far as they relate to the credibility issue and the factual dispute, were really unarguable. As I said, I was not in a position to re-evaluate the evidence. However, I was concerned about the issue of the husband as a potential witness.

9. Of course, in the usual course of event, all witnesses, be they prosecution or defence witnesses, should be called at the trial. But here the situation was that, according to the appellant, her husband was going to testify but was not called by the lawyer eventually. The husband's evidence may be relevant not only on the location where the appellant was intercepted, but also on her general condition at the time. While one may question the weight of a husband's evidence in these circumstances, but that should really be a matter for the trial magistrate. Having given the matter some thought, I considered that fairness would require, in this particular case, that the appellant's husband be allowed to testify, as he had originally planned, as a defence witness. Otherwise, the appellant may have a genuine sense of grievance arising out of the situation.

10. In order that justice can be seen to be done, I would therefore, allow the appeal. I must, however, emphasis that this case must be treated as an exception. In principle, all matters relating to the calling of witnesses should be dealt with at the time of the trial. In any event, as a result of the above analysis, the proper order to make in the circumstances would be a re-trial of the case. Hence, the conviction would be quashed and the sentence set aside. The case is to be sent back to the magistracy for a new trial before another magistrate.