HKSAR v. HUI FUNG YEE

HCMA675/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 675 OF 2009

(ON APPEAL FROM ESCC 1727 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  The appellant was convicted by Miss Kennis Tai at Eastern Magistracy of an offence of theft of a dress. She appeals that conviction.

2.  The prosecution’s case was that the appellant went into a clothes shop in Causeway Bay. She asked the proprietress for a shirt of a particular sort and the proprietress went to another nearby shop which she also operated to fetch the shirt. There were then no other staff present in the clothes shop and the appellant whilst alone, according to the prosecution, took the dress from the rack it was on and went outside the shop to where her boyfriend was waiting and where she had an opportunity to hand the dress to him.

3.  When the proprietress returned to the clothes store with the shirt the appellant had requested, the appellant then selected more clothing, including a dress of the same sort she had earlier taken from the rack, although of a larger size and, after paying for these items, left.

4.  Very shortly afterwards the proprietress noticed that a dress of identical sort to that paid for by the appellant except for it being of a smaller size, was missing from the rack. She called the police.

5.  The appellant had paid for her purchases with a bank debit card and was contacted by the police using the information gained from the debit card slip.

6.  Subsequently she was interviewed under caution. At the time of her being cautioned, she was told this by the interviewing officer :

“… Now, (I) make a post-record (of how) I arrested you, for the offence of Theft earlier on, on 30^th March 2009, in Wanchai Police Station.  (I arrested you) because I had reason to believe that at 10.49 p.m. on 24^th January this year, (that is) 2009, inside Crisko Circuit Fashion Shop, Shop No.6, Basement, Causeway Bay Ginza, No.509, Jaffe Road, Causeway Bay, you stole a red checkered dress small size, valued at $450-HK, belonging to that shop. …”

Following that caution, the appellant replied :

“I understand.  Give me a chance.  I (did it) out of momentary greed.  I won’t do it again.”

Later, at the conclusion of the brief interview, the following question and answer transpired :

“Question [1]:  How do you (want to) dispose of the red checkered dress (small size) now?

Answer [1]:  In fact, I really did not use it.  I put it at home (and it is still) brand new.  All along, I have had the intention of returning it.  However, as I was too busy with (my) work, I forgot the incident.  I am absolutely willing to return the skirt.”

7.  Following that interview, the appellant was taken to her premises where the stolen dress was recovered. She was later again interviewed under caution and said :

“I remember that day, I went window-shopping with (my) boyfriend.  (He) accompanied me to Causeway Bay Ginza where I had a look around in the shops.  Lest he should wait too long, I told him to go up to smoke (while) waiting for me.  I put a dress into a bag, intending to tell him to watch over (it) for me. …”

and in answer to a question :

“… I put it aside (after) returning home.  As the skirt didn’t fit (me), I forgot the incident. …”

8.  Mr Raffell, counsel for the appellant, complains that there was insufficient evidence to establish that the appellant had acted dishonestly and, in particular, to prove that she had the intention to permanently deprive the owner of the dress. He says also in this regard that there was evidence which cast doubt on the prosecution’s case that the appellant had dishonestly taken the dress. The matters particularly relied upon are that the appellant had a clear record, that she paid for the other items of clothing with a bank card which would allow her to be easily traced and that the stolen dress was found in her premises even though she had had an opportunity to discard or destroy the dress before the police went there.

9.  I bear in mind that upon an appeal from a conviction by a magistrate, which is brought on the basis that there was insufficient evidence to establish some necessary element or elements of the offence, matters proceed by way of a rehearing, as described in Chou Shih Bin v HKSAR [2005] 1 HKLRD 838 at para.17 onwards.

10.  In my view the starting point in the present case are the admissions made by the appellant. Those admissions were clear and made in response to the straightforward allegation that she had stolen the dress.

11.  The later assertion made by the appellant, to the effect that she intended to return the dress, was exculpatory and, in the face of the earlier quite plain admission made by the appellant in the context of what she had been told in the preamble to the caution, could carry very little weight. An intention to return the dress cannot have existed in the appellant’s mind at the time she took it. Otherwise there was no point in the taking.

12.  If there was an original theft of the dress, then a later change of mind and an intention to return it does not cure the original theft, though it may mitigate sentence.

13.  In any event, that later part of the appellant’s cautioned statement is exculpatory and in my view should be given no weight when balanced against the earlier clear admission. That is because, quite simply, the dress was not returned.

14.  I do not think this conclusion is affected by the appellant’s clear record. The evidence against her in my view was overwhelming and she gave no evidence in her own case. Nor do I think that the appellant’s use of a method of payment which allowed the police to identify and contact her affords any real support for her case when viewed in conjunction with what I am satisfied is a clear admission of theft. The same applies to her failure to discard or destroy the dress prior to her going to the police station at the request of the police. There may have been many reasons for this, but when viewed against the background of her admissions any inference that she failed to do so because the original taking of the dress was not dishonest fades into insignificance.

15.  There was a further assertion by Mr Raffell that the dress exhibited at the trial as Exhibit P2 may not have been the one actually stolen by the appellant, as she had taken two similar dresses home from the shop and had paid for one of them. That assertion overlooks the admission of the appellant that she stole the “small size” dress made by her in her second cautioned statement in reference to Exhibit P2.

16.  In my view the magistrate was correct to convict the appellant on the evidence before her. I agree with her finding in that regard and the appeal is dismissed.