HKSAR v. CHOW YEE-NIN

HCMA 449/2018

[2019] HKCFI 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO 449 OF 2018

(ON APPEAL FROM KCCC NO 1261 OF 2018)

______________________

______________________

__________________________

REASONS FOR JUDGMENT

__________________________

1.  The appellant was convicted after trial of one count of Theft (shoptheft) and fined HK$2,500.  She appealed the conviction.  At the conclusion of the appeal hearing, I allowed the appeal and set aside the conviction and sentence, reserving the reasons for the judgment.  Here are the reasons.

Prosecution case

2.  I will adopt the summary of the prosecution case as helpfully summarised by the respondent.

3.  At around 1709 hours on 11 February 2018, inside City Super, Shop 3001, Gateway Arcade, 25 Canton Road, Tsimshatsui (hereinafter referred to as “City Super”), a security guard of City Super in plainclothes Mr Lee Siu-keung (“PW1”) spotted the appellant who, after having taken a box of cherries, went towards the direction of the express cashier.  PW1 found that the appellant did not make payment but turned to the “Japanese Snacks Street” where she was seen putting the box of cherries into her own recycling bag.

4.  After leaving the “Japanese Snacks Street”, the appellant walked to “Kimchi Street” and picked up a pink umbrella there.  And then, she returned to “Japanese Snacks Street” where she put the umbrella into her own recycling bag.  Thereafter, she wandered around City Super during which period PW1 watched over her.

5.  The appellant later left City Super without payment and proceeded to a place called “RFI”.  After having walked for 10 odd to 20 metres, she was intercepted by PW1.

6.  PW1 told the appellant that he witnessed her having taken items from City Super without payment and asked her to go to the security office of City Super.  Upon arrival at the security office, PW1 asked the appellant to take out items from her bag.  The appellant took out a box of cherries, an umbrella and a pack of tea bags from her recycling bag.

7.  Shortly afterwards, the Police arrived at the scene and arrested the Appellant.  Under caution, the Appellant said : ‘I intended to walk around for a longer while before paying once and for all.  As I was looking at the gifts, I intended to pay after having chosen the right gifts.’

Defence case

8.  I also adopt the evidence of the appellant succinctly summarized by the respondent: -

(1) She received education up to University level.  She got married in August last year (2017) and was an assistant bank manager responsible for operational matters.

(2) At about 3:30 pm on the date of the alleged offence, she went to Tsimshatsui for a manicure appointment.  Since the time was still early, she walked to the shops nearby to see if there were any suitable gifts for the Chinese New Year.

(3) At 5 pm or so, she arrived at City Super.  Before that, she had been to a cake shop opposite City Super.

(4) After having entered City Super, she picked up the relevant items (subject matter of the current charge) and put them into her recycling bag.

(5) She provided the reason why she had put the items separately into her bag.  According to her, she intended to put the first item into the recycling bag only after she had chosen the second item.

(6) She continued to explain that whilst she was going to leave City Super, she found many people queuing up at the cashier’s counter and so, she proceeded to the booth selling Chinese New Year pudding.  But many people were queuing up there as well. Meanwhile, she went over to another booth which was selling gift boxes.

(7) It was her intention to pay for all the items at a cashier’s place at the farther end of the passageway.  However, she was intercepted by PW1 before she could reach any cashier.

The issue at trial

9.  The simple issue at trial was whether the appellant intended to pay at a cashier’s place at the farther end of the passageway, or put simply, whether she was dishonest.  If the explanation of the appellant might be true, she should be acquitted.

Reasons for conviction

10.  The magistrate noted that the appellant is a person of clear record.  Accordingly, he gave himself a good character direction on both propensity and credibility limbs.  However the magistrate found the appellant to be a dishonest and unreliable witness for the following reasons (as summarised by the respondent) :-

(1) Before entering City Super, she knew well there were other shops selling Chinese New Year gifts or gift boxes.  Although she wanted to buy such kind of products, she chose not to go to these other shops first but entered City Super without going straight to booths selling Chinese New Year products.  Upon  entering City Super, she went to the fruits’ stall, the “streets” selling coffee, vegetables and tea – all of which had nothing to do with Chinese New Year products.

(2) The Appellant initially testified that she would put the first pick‑up item into her bag only after she had picked on the second item.  This was apparently contrary to what was shown on the relevant CCTV footages.  Under cross-examination, she  changed her version to the following one : namely, that she would put the first item into her recycling bag only after having decided to buy that item.  This showed that the Appellant was fabricating her story as she went along.

(3) The Appellant alleged that she had seen staff wearing City Super uniforms as she walked down the passageway.  Therefore, she allegedly came to the false impression that she was still within the parameters of City Super.  But then, the Appellant failed to substantiate such allegations.  In any event, given floor tiles, distance and setting concerned, the said passageway did not appear to be part of City Super.

Grounds of Appeal

11.  Mr McGowan, counsel for the appellant, put forward the following grounds of appeal :-

“(1) The Learned Magistrate erred in rejecting the Appellant’s account as given in para. 9 of the Statement of Findings.

(2) The Learned Magistrate erred in finding that the Appellant’s “browsing” behaviour whilst shopping (as described in the Statement of Findings at paras. 3-7) led inevitably to an inference of guilt (see Statement of Findings at para. 17).

(3) The Learned Magistrate took insufficient account of the extended and confusing layout of the shop, particularly during the Chinese New Year Festival period.

(4) The Learned Magistrate erred in putting the burden of “proving” the tenancies of the corridor shops on the Appellant (see Statement of Findings at para. 15(3); Oral Verdict – Appeal Bundle p. 46U – p. 47C; Translated Oral Verdict p. 17 lines K-S).

(5) The Learned Magistrate erred in finding the Appellant’s behaviour “absolutely dishonest” (Statement of Findings at para. 17(5); Oral Verdict – Appeal Bundle p. 47 lines M-R; Translated Oral Verdict p. 20).

(6) The conviction was unsafe and/or unsatisfactory.”

Discussion

12.  The principles relating to a magistracy appeal are well settled.  As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers.  The judge explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather whether any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing.

13.  The judge further noted that even if no error has been identified, that is not the end of the matter as the appellate court’s duty is to conduct a rehearing and to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant. 

14.  Generally speaking, an appellate court would be slow to interfere with the fact finding of a magistrate and his assessment of the credibility of a witness. In the present case, the magistrate disbelieved the evidence of the appellant.

15.  At the appeal hearing, I had the benefit of viewing the footages captured by various CCTV cameras from different angles.

16.  There was no dispute that the day in question was near the Chinese New Year festival and there were many additional temporary stalls at the passage outside City Super.  One can also see that the place was crowded with customers.  It was also not disputed that there was a cashier counter (though in fact not a cashier counter of the supermarket) outside the supermarket at a farther location in the passageway as shown in the photographs produced at trial.  The boundaries of the supermarket were not well defined, in the sense that there were no walls or partitions to define the boundary of the supermarket from the passageway.  The boundaries were defined by the floor tiles in different tones.  The area was crowded with people. 

17.  The appellant elected to testify that she was an assistant manager of a bank with university education.  She had a clear record.  From the CCTV footages, I can see nothing suspicious of her demeanour when she was choosing the items of goods involved in this case. Upon interception, she immediately put up an exculpatory explanation that she intended to pay at a cashier counter at the farther end of the passageway, which she only found out later was not a counter of the supermarket.  It is noted that the total value of the properties involved was only about $400.

18.  Her explanation, in my judgment, was not inherently improbable. It appears to me that her change of account of her shopping method, as noted by the magistrate, was not a material one and might have been a lapse of memory when she gave evidence some five months after the incident.

19.  I acknowledge the careful analysis of the magistrate and I have to say that there cannot be found any errors in his judgment which can be said to be “plainly wrong”.  However I must also say, with respect to the magistrate, I would have come to a different view as to whether the prosecution evidence could prove the guilt of the appellant beyond a reasonable doubt. By way of re-hearing, I am left with a doubt whether the appellant intended to pay or to steal.  The benefit of the doubt should be resolved in favour of the appellant.  The present case is one of the exceptional cases that I beg to differ on a finding of the credibility of a defendant. But I must make it clear that no criticism at all of the magistrate is intended.

Conclusion

20.  For the above reasons, the conviction is unsafe and the appeal is allowed.  The conviction is set aside and the fine, if paid, is to be returned to the appellant.