R. v. CHEUNG MING DUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1377 of 1996

______________

______________

______________

J U D G M E N T

______________

1. The appellant was convicted of theft before a magistrate on 23rd October 1996. He was sentenced to 6 months imprisonment. He now appealed against conviction.

2. The prosecution case was that the appellant was seen by a sales lady PW1 in the Espirt Shop in the Landmark, looking at jeans which were displayed in the shop. After she had served him with no sales concluded, she attended to her work of folding clothings. The security alarm then went off. She ran to the entrance and saw the appellant go into the shop next door. She only saw his back. She waited outside that shop and after two minutes, she saw the appellant come out of the shop. She rushed forward trying to intercept the appellant. She called out to him and chased after him for a distance of two shop spaces. During the chase, she saw a pair of jeans on a hanger drop from the appellant's person. She picked them up and at the same time, she called out to a security guard PW2 who was nearby to stop the appellant. PW2 stopped the appellant. The pair of jeans was identified to be the property of the Esprit Shop with the price tag still there. PW3 the police officer then arrested the appellant and the pair of jeans was handed over to PW3 as exhibit.

3. The appellant's evidence before the magistrate was that the pair of jeans was dropped by two ladies who had been to the Espirt Shop at about the same time as the appellant was there. These two ladies had left the scene when he was caught by PW2. He said that PW1 was accusing him of theft but he did not steal at any time. The appellant also told the magistrate in cross examination that he never told the police during investigation about these two ladies and he never mentioned to PW1 that the alarm might have been trickered off by these two ladies. The appellant called a witness who was his social worker to testify about the appellant's preference in clothing styles. The magistrate considered such evidence not relevant. The magistrate did not believe the appellant and found that he "had lied in evidence in order to avoid the consequences of conviction." He accepted the evidence of the prosecution and convicted the appellant accordingly.

4. The appellant who acted in person submitted four grounds of appeal :

(a) the magistrate was wrong in stopping his witness, the social worker from giving evidence;

(b) there was no evidence that he had committed the theft offence;

(c) the prosecution witness could not explain how he could have taken the pair of jeans out of the shop without her knowing it; and

(d) PW2 and PW3 both said that the pair of jeans were not found in his possession.

5. The appellant in his submission in writing which he supplemented verbally in court, submitted that it was impossible for him to hide the pair of jeans inside his windbreaker and that impossibility was demonstrated in court at the trial. However it should be noted at the demonstration, PW3 the police officer agreed that except the top part of the pair of jeans, the whole pair of jeans with its hanger could be hidden under the windbreaker.

6. The appellant also submitted that because PW2 was in front of him at that time when PW1 called out to PW2 to intercept him and the location was a long straight corridor, it would be impossible that PW2 did not see the pair of jeans drop from him, if indeed, he had drop them when being chased by PW1. He submitted that the evidence of PW1 that the jeans were dropped from him was not reliable. He further submitted that because he had convictions for theft, he found it difficult to tell the police about the two ladies who dropped the jeans and who could have trigger off the alarm. The appellant submitted that his appeal should be allowed because the conviction was unsafe and unsatisfactory.

7. On the first ground, the magistrate was entitled as he did, to exclude irrelevant evidence. The appellant's preference in clothing styles was not relevant.

8. On the other grounds which can be dealt with together, it is correct that the evidence showed that no one saw the appellant take the pair of jeans from the shop. PW1 did not see the appellant hide the jeans in his windbreaker nor did she see the appellant had any jeans with him when he went into the shop next door to the Espirt Shop. It is also true that according to the evidence, PW1 did not notice anything unusual about the appellant when he was in the shop and PW1 at that stage did not suspect him to be a theft. However, the evidence was that when the appellant came out of the next door shop, PW1 saw the hanger exposed from the top of the appellant's windbreaker and subsequently saw it drop from the person of the appellant. PW1 picked up the jeans and at the same time called PW2 to intercept the appellant. There was evidence from PW2 that when he saw PW1, she was already holding the pair of jeans. Naturally, PW1 could not have seen the jeans on the appellant at the time he went to the shop next door because she was only able to see his back.

9. The magistrate accepted the evidence of the prosecution witnesses. He believed that PW1 had seen the defendant produced from under his windbreaker the pair of jeans and dropped them on the ground as he attempted to run away. On the evidence he accepted the magistrate was entitled to draw the inference that the jeans were stolen by the appellant. The conviction was not against the weight of the evidence It was neither unsafe nor unsatisfactory. The appeal conviction is dismissed.