R. v. KONG HOO MING

1996 No. MA 1036

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. The appellant was convicted of theft. The theft was the stealing of a packet of pistachio nuts from a supermarket.

2. The evidence against the appellant was that of PW1, the cashier in the supermarket. She told the magistrate that she was standing 10 feet away from the nut shelf and she saw the appellant who was carrying packets of instant noodles and drinks take a packet of pistachio nuts and put it around the waist band of his trousers which was covered by his upper garment. The appellant went to pay for the other items at the cashier counter but not the nuts. PW2, the manager of the supermarket, told the magistrate that he was outside the cashier counter and after the appellant went through the cashier counter, he stopped the appellant. PW2 told the appellant he had stolen goods from the store to which the appellant denied. When pressed, the appellant took out the packet of nuts from his trousers waist.

3. The appellant told the magistrate that he went to the supermarket and picked up a number of items which he held in his hands. When he came to the nut shelf, he found he had no empty hand to hold the packet of nuts. He then tucked it in his waist band. But at the cashier counter he forgot to pay.

4. The magistrate found that the appellant had taken the nuts and hidden them under his shirt and in his waist band and not in his pocket. In his findings the magistrate said :-

"He then left immediately and did not pay for them. Too little time to have forgotten that he had them."

The magistrate was aware that the appellant was a man of clear record and he gave himself the proper good character direction. He did not believe the appellant and convicted him of the offence charged.

5. The appellant now appealed against conviction.

6. The ground of appeal was that the magistrate did not address his mind to the appellant's state of mind when he left the shop.

7. Mr McGuinniety for the appellant made the complaint that the evidence did not support the magistrate's findings that the appellant hid the packet of nuts under his shirt, the evidence being that the appellant was seen putting it around his waist band of his trousers which was covered by his upper garment.

8. Complaint was also made that the magistrate unfairly assumed that the appellant left the store immediately after he had obtained the packet of nuts and there was too little time for the appellant to have forgotten to pay when there was no evidence as to time to support that finding. It was submitted that the appellant was of a good record and his state of mind at the relevant time was important.

9. Reliance was placed on the following questions and answers in the evidence of PW2 and the appellant's evidence on the record to support the appeal :-

"PW2 examination-in-chief :-

Q. Now, this is the fat person that that cashier was pointing at, at the time?

A. Yes.

Q. Call him the defendant. Yes, what happened?

A. Then the defendant was waiting in queue to pay for two packets of drinks and noodles.

DW1 (Accused) examination-in-chief :-

Q. Right.

A. When I was choosing it since my hands were too full, so I put the packet of pistachios into my trouser pocket.

Q. Right. Why did you have to do that?

A. Since at that time my hands -- my left hand was holding three items, that is two boxes of orange juice, one cup noodles, and I had a waist-bag in my right hand - in my right hand. I had to free one of my hands to choose the writing pad as some of them were broken. Then I had to choose carefully.

Q. Right, and after you -- did you choose one which you found suitable?

...

A. Then I went out and wait to pay.

Q. Right, and by the time you came to pay for the items do you recall that you had P1 inside your trousers pocket -- sorry, do you remember you had P1 in your trousers pocket?

A. When I was waiting in the queue I forgot it."

10. Thus, there was at least evidence that appellant had waited for a period of time before he reached the cashier counter but how long this was, there was no evidence. In any case, it showed that the appellant did not leave immediately after he obtained the packet of nuts as the magistrate found it. The evidence did not justify the magistrate's conclusion that there was little time for the appellant to forget about the packet of nuts and he intended not to pay for it.

11. The conviction must be unsafe and unsatisfactory. The appeal against conviction was allowed. The conviction was quashed and sentence set aside.