HKSAR v. TANG KWONG LAM

1997, NO. MA 467

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant appeals the decision of Mr Thomas TSANG, Magistrate, to convict him of the offence of theft and the sentence which was a fine of $1,000 and costs of $500.

2. He has now sought leave to withdraw the appeal against sentence because it is only the conviction about which he is aggrieved.

3. The prosecution case is that there was an alleged shoplifting. It called only one witness. He, PW1, was a salesman on duty in the shop when the incident allegedly took place. Amongst other things the shop sells video tapes and VCDs. The shop is fitted with anti-theft mirrors, which allow observations to be carried out on those parts of the shop that might otherwise be obstructed by stands carrying stock, customers or otherwise. He saw by this means the appellant take two video tapes from a shelf and put them in a bag he was carrying. Then, after wandering around for a while, he walked quickly from the shop.

4. PW1 established that he had not paid for the goods and apprehended him some 10 metres from the entrance. He told the appellant he had not paid and brought him back to the shop. Inside the bag were the two video tapes and a VCD. They were all identified as stock of the shop not paid for, and are the subject of the charge.

5. That was the prosecution case.

6. The appellant elected to give evidence. He said he had a clear record. He was 58 years old, and a doctor who was qualified in China and is now retired. He said that he had taken the items off the shelf but had not yet formed the view that he intended to buy them. He did not put them in a bag he was carrying. He did not leave the shop. The items were taken from separate locations in the shop. He had not left the shop when he was apprehended. He had walked to the front of the shop, believing that he had heard his name being called. He had no intention of stealing the goods. He had $7,000 on him with which he could pay.

7. That was the defence case.

8. On the evidence adduced, the learned magistrate found the charge proved and convicted the appellant.

9. The appellant, who is unrepresented before me, has appealed on the ground that there was no sufficient evidence; further that certain evidence was improperly admitted, and other improperly rejected.

10. He has had the opportunity of expanding on these points before me. In general terms, he points to the inherent difficulties he would have experienced in what was a compact shop, sparsely occupied, in getting away with the crime.

11. He said the evidence of the prosecution witness that he had concealed the goods in a bag, which the magistrate believed, was inherently improbable, given the size of the bag and what it already had inside it. He said it was also not probable, had he made off, that he would have got as far away as ten metres from the shop entrance before being apprehended. He pointed to his age, his clear record, his qualifications, and the money that he had on him as indicative of the unlikelihood that he would stoop to do what he has been convicted of doing.

12. In the circumstances of such a case as this, an appellate court is slow to intervene where the decision of the judge or magistrate at first instance to convict turns on his findings of fact which are at issue and are canvassed before him. He has the advantage of observing all the witnesses as they give their evidence, which adds a dimension not available to the appellate court, restricted as it is to reading the transcript.

13. The learned magistrate reviewed all the evidence. He found PW1 to be straightforward, coherent and unshaken in cross-examination. He believed him. He was entitled to. He found the appellant to be evasive, dishonest and unreliable. He was alive to the direction that he was required to give himself that a man of hitherto good character, having a clear record, is more likely to tell the truth and less likely to commit a crime than a person of a bad character. He paid heed to the appellant having a sizeable amount of money on him and thus the ability to pay for any goods he chose. But at the end of the day he disbelieved him, and he was entitled to do that.

14. Whilst the appellant may be aggrieved at these findings, there was no flaw in the process which led the magistrate to the conclusion that the appellant's guilt had been before him proved beyond reasonable doubt.

15. The appeal against conviction is dismissed, and the appeal against sentence withdrawn by leave.