HKSAR v. WONG SIU KUEN

HCMA 933/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 933 OF 2003

(ON APPEAL FROM ESCC 2286 OF 2003)

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J U D G M E N T

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1. The Appellant appeals against her conviction after trial of a charge of 'Theft'. The Appellant was represented by a duty lawyer at trial.

2. The facts for the Prosecution were that PW1, a security officer working at Jusco testified that at about 1:50 pm on the day of the offence, whilst he was patrolling the supermarket, he saw the Appellant pushing a trolley. He saw the Appellant take a bottle of seasoning, looked at it for about 10 seconds and placed the bottle in her left trouser pocket. Then the Appellant proceeded around the supermarket and 10 minutes later, returned to the same display rack and took another bottle of seasoning which she also placed in her left trouser pocket.

3. PW1 at cross-examination had disagreed that the putting of the bottles of seasoning in the pocket was not furtive because he said that the Appellant took her chance to place the bottles in her pocket when she saw that there was nobody in the aisle.

4. The Appellant then pushed the trolley to where the milk powder was on sale and asked a staff member for a can. The Appellant then went to the cashier counter and she paid for that milk powder, but did not pay for the two bottles of seasoning.

5. PW1 then said he stopped the Appellant at the bus stop outside Jusco. He said that he told the Appellant that she had taken something without making payment whereupon she promptly showed the can of milk powder and receipt to PW1. PW1 then said, pointed out to the Appellant that she had not paid for the items in her left trouser pocket. The Appellant then replied "Sorry it's momentary greed, give me a chance".

6. PW2 was the arresting officer. PW2 said that after he cautioned the Appellant, the Appellant asked for a chance and said she stole out of momentary greed. PW2 said he found $860 and a credit card on the Appellant.

7. The Appellant elected to give evidence and she is a person of good character. Her evidence was that she went into Jusco to buy milk powder for her mother. She had taken an empty can from the display shelf and then walked around the supermarket for about 5 minutes to check the price of rice. Then the Appellant said she saw the seasoning and so she took one bottle and then at an adjacent aisle, she took another bottle. After waiting 5 minutes in the queue, she changed queue and then gave the empty can to the cashier who asked the colleague to go to the storeroom to check the stock. She said she waited 20 minutes and the staff only found one can. By that time, the Appellant said she was anxious to leave because she had to accompany her mother to see a doctor and so she forgot about the two bottles of seasoning in her trouser pocket. She said that after she was stopped outside Jusco, she had told both PW1 and the police officer that she was in a hurry to leave to take her mother to the hospital. The Appellant denied that she had admitted that she stole in a moment of greed and asked for a chance.

8. The Appellant had also testified that she had been under considerable stress in the last few months because both her husband and mother were seriously ill. The Appellant said that she had broken her leg about six months before and that she was both physically and mentally fatigued. She said that she was on the verge of a breakdown. She had intended to pay but due to her mental state, she did such an abnormal act. The Appellant also said that she remembered having a trolley with her but she could not remember whether she pushed the trolley right after entering the supermarket or after she found she was carrying something very heavy.

9. The Appellant in cross-examination was asked why she put the two bottles in her trouser pocket and she said because it was easier to carry as she had a large pocket.

10. In reaching his verdict, the learned Magistrate had reminded himself of the good character of the Appellant. He also properly reminded himself that the burden and onus is on the Prosecution. He did not believe the Appellant's evidence because he found it inherently improbable. But after having dismissed the Appellant's evidence as unbelievable, he did go on to consider whether the Prosecution had proved its case. When he considered the Prosecution Witnesses' evidence, it is also apparent he considered the cross-examination of them because he had listed some of the points raised in his Statement of Findings, and having considered all the evidence, he found that he was satisfied that the only inference to draw from the actions of the Appellant was that she had acted dishonestly, and he was satisfied that the Appellant had admitted to both PW1 and PW2 that she acted out of greed.

11. The Appellant is unrepresented in her appeal and her grounds of appeal are set out in her letter of 6 November 2003. She says again about the stress that she was under because of the illness of her mother and of her husband. She also said that she was going through menopause and had a poor memory and she had an illness when she was about 17 when she had a brain infection. She also suggested that she now remembers that she did not have a trolley; she was carrying the can and she had a straw hat in the bag so she put the seasoning into the pocket out of habit.

12. As far as the stress that the Appellant was under, that was brought out at the trial and the learned Magistrate had properly considered it. As far as her now remembering she had no trolley that is not a good ground of appeal because the learned Magistrate could only decide on the evidence that was before him at the time.

13. It is clear that the learned Magistrate had properly reminded himself of the law and on the evidence upon which he could convict the Appellant. So it is clear that he had sufficient evidence from which he could draw the inference that the Appellant was acting dishonestly from her actions in the supermarket, and in addition to that, the Appellant's admissions to both PW1 and PW2. The learned Magistrate therefore was not in error in anyway and therefore the appeal is dismissed.