R. v. TANG CHI MING

1996, No. MA 1408

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. This is a tragic case which involves a young man of excellent character who had joined the Fire Services and in his training had won what is called the Golden Axe. He is obviously a person of great promise who had a great career ahead of him in a public service which provides exceptional service in Hong Kong.

2. The appellant had a walkman and it ran out of batteries - two batteries were required to run his walkman. About 9:30 in the evening on 14 June 1996, he went into the Mannings Shop in City Plaza and he did not know that at that time there was in the Mannings Shop a store detective dressed like an ordinary shopper whose job is to prevent store theft. The appellant was seen taking a packet of six Duracell batteries, opening it and taking two out - of course these were the two he would require for his walkman. The packet was then placed back. Then as one would expect when you go into a store generally speaking you have to buy something, so he bought a packet of gum. He paid for the gum and walked out but was then apprehended by the store detective.

3. He had on him two new fully charged batteries. These were the ones that he had taken from the packet. The evidence, in my judgment, was overwhelming against him. Perhaps it would have been far better had he been prepared to admit his guilt, but this he did not wish to do as he was entitled. The magistrate heard the case, there was substantial cross-examination, he gave evidence which could not really explain anything. It was suggested here that the batteries might have been switched. I find that a remarkable submission to make - suggesting the store detective went and broke open a packet and then planted them. It is really a nonsensical point. The magistrate listened to the evidence as was his duty and took into account his good character witness who was called by the defence and it was put would he damage his career for two batteries worth a few dollars. But that is a duty of the court to find that when people steal from shops, whether it is a few dollars or thousands of dollars, it is still straightforward theft.

4. I have no doubt on the evidence here that this was an overwhelming case that this young man, for whatever reason perhaps no one will ever know, stole two batteries and did not intend at any time to pay for it. He was caught. The consequences, of course, as I said are tragic. I have great sympathy for him but my role, as I have said before, is to uphold the law. This is a clear case. He had a fair trial and I can find nothing in the grounds of appeal. Despite Mr Niamatullah Q.C. who has great experience and is a very able barrister coming along to give his services to help this man, I can find nothing which permits me to examine this other than from a straightforward point of view of the law. The burden of proof is on the Crown, they proved that this man took these batteries and did not at any time intend to pay for them. That is simple theft.

5. The only matter I would add is that this has nothing to do with the Fire Services, I am surprised that the Fire Authority had dismissed him. But that is not, as I have said, a matter for me. Perhaps if he appeals to them again, they might give him another opportunity. So the appeal is dismissed.