HKSAR v. LAU HOK LAI

HCMA243/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.243 OF 2005

(ON APPEAL FROM KTCC 8197 OF 2004)

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J U D G M E N T

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1. The appellant was convicted after trial of one charge of ‘Theft’.  He was sentenced to a fine of $2,500.  He appeals against the conviction.

The charge

2. This is a case of shoplifting.  The allegation was that the appellant stole one pack of jelly, three packs of lactic plain (a drink), four packs of turkey patties and three packs of frozen scallops from a Park’n Supermarket in Metro City Plaza, Tseung Kwan O.

The prosecution’s case

3. Insofar as it is relevant, the prosecution’s case as summarized in the magistrate’s Statement of Findings was as follows :

“3.          Au Wai Keung (‘PW1’) testified that she was a plain-clothed security guard employed at the supermarket.  She saw the appellant holding 2 plastic bags of items belonging to the supermarket in one hand.  He looked all around him and then he put the 2 plastic bags into his own black bag (exhibit P1).  The appellant then walked over to the drinks shelves and picked up a pack of drinks.  He then walked over to another set of shelves and took a pack of jelly.  He then put the drinks and the jelly into exhibit P1.  PW1 notified her colleague Cheng Hoi Yan (‘PW2’) by telephone.  PW1 saw the appellant shortly afterwards walk towards the service counter which has about 10 payment counters.  He walked past them and out of the supermarket.  PW1 chased after him.  The appellant went up an escalator to another floor and was intercepted by PW1 and PW2 near the Body Shop.  PW1 revealed her identity and told the appellant that he had unpaid items in his possession.  The appellant asked if he could pay for them now.  PW1 invited the appellant to go back to the supermarket but after a few steps the appellant fended her off and tried to escape along a walkway.  The appellant pushed open a glass door and went beyond the door but was pulled back by PW1.  He asked for a chance.  During his attempt to escape, PW1 had shouted “robbery”.  Finally the appellant was brought back to the supermarket.  PW1 asked him to take out the unpaid items from his black bag and he took out patties, scallops, drinks and jelly.  PW1 further testified that there were shopping trolleys and wire baskets available for customers inside the supermarket but the appellant had not made use of them.

…

               Under cross-examination PW1 testified that when she first saw the appellant he was holding 2 plastic bags.  She followed him around the shop at a distance of 5 to 10 feet.  There were people between them.  As the appellant walked towards the entrance of the shop, he put his mobile telephone to his ear.  PW1 did not know if he was speaking to anyone.  However at the earlier times when PW1 saw the appellant put the items into his black bag, he was not using his mobile telephone.  There were occasions when PW1’s view of the appellant was partially obstructed.  PW1 disagreed that the supermarket items were in the appellant’s left hand whilst the black bag was in his right hand.  She further disagreed that the items in his left hand accidentally dropped into the black bag.  Half way along the passage way leading to the exit, the appellant placed his mobile telephone to his ear.  The telephone was in his left hand.  His pace was slightly on the quick side.  The appellant still had the telephone to his ear when PW1 stopped him.  PW1 grabbed the appellant’s clothing in the chest area after he tried to escape.  PW1 disagreed that she had dragged him from the front whilst PW2 had pushed him from behind and that had prompted the appellant to run away.  PW1 had been a security officer for 25 years.  She had shouted ‘robbery’ in the hope of attracting patrolling police officers.

4.            The prosecution tendered Cheng Hoi Yan (‘PW2’) for cross-examination.  He testified that when he saw the appellant he was getting ready to leave the supermarket.  He was not holding a mobile telephone at that juncture but he was before he exited the supermarket.  Until the time the appellant was intercepted, he was holding the mobile telephone to his ear.  PW2 and PW1 followed the appellant up the escalator.  The appellant was walking normally.  After they intercepted him they escorted him back to the supermarket one in front and one behind but after 2 or 3 steps the appellant ran to escape.  PW2 disagreed that the appellant had said he would like to explain why he had forgotten to pay.  PW2 agreed that he had placed a hand on the appellant’s shoulder before he tried to escape.  PW1 had grabbed the appellant’s clothing but only after he had tried to escape.  Neither of them had hit the appellant in the face.  PW2 disagreed that it was because of the violence he and PW1 had used that the appellant had run away.  The appellant struggled at the glass door.  PW2 was a trainee security guard who had been on the job only 11 days upto that time.”

The defence case

4. Turning to the appellant, the magistrate wrote :

“5.          … He testified that he was a Sales Marketing Director.  He was inside the supermarket buying things when he received a telephone call from a friend.  Whilst taking the call, he inadvertently walked out of the supermarket.  When he was intercepted by PW1 and PW2 he was still speaking on the telephone.  PW1 told him that he had some unpaid items and he told her that he had forgotten to pay because he was speaking on the telephone.  PW1 asked him to go back to the supermarket and they escorted him, PW1 in front and PW2 behind.  The appellant walked with them but PW1 pulled his garments at his front.  PW2 pushed him in the back causing pain to his waist and back.  The appellant testified that he was very co-operative and prepared to go back with them.  He asked them why they were pushing him.  Several persons rushed up and someone punched him on the left forehead.  The appellant was scared and so he ran off several steps.  PW1 shouted ‘robbery, theft.’  They and a security guard chased and caught him.  He was again co-operative and went back to the supermarket with them.  PW1 continued to twist his clothing from the front with PW2 pushing him from behind.  Earlier in the supermarket his mobile telephone had been in his pocket when it rang.  At that time he held the supermarket items in his right hand and his black bag in his left hand.  In order to get out his telephone he moved his bag from his left to his right hand.  As he did so, the scallops and patties fell accidentally into his bag, the zipper of which was open.  PW1 then put the drinks and the jelly into the bag intending to pay for all 4 items.  Then he answered the telephone.  It was his colleague, Amy.  She was distraught.  She had previously been in hospital for a body check as she was afraid that she had cancer.  She was emotional and the appellant was distracted as he tried to soothe her over the telephone.  Under these circumstances, he inadvertently left the supermarket without paying for its goods.

               Under cross-examination the appellant testified that he was aware that the patties and scallops had fallen into his bag.  His entire concentration was on the telephone call.  He was intending to see a movie with Amy that night.  He disagreed that he was conscious of the fact he had unpaid items when he left the shop.  The supermarket was crowded and there was no shopping trolleys or wire baskets available for use.  Amy was crying over the telephone.  When asked why he had not remained in the supermarket until the conversation was ended, the appellant testified that he was not aware he had left the shop even when he was on the escalator.

6.            Tsui Kit Ching (‘DW2’) testified that the appellant was her friend.  She had known him for more than a year.  She was on the Mass Transit Railway when she suddenly felt great pain in her back.  She was on her way to meet the appellant so she telephoned him to find out where he was.  Due to the pain, she was crying.  The appellant told her over the telephone that he was shopping in Park’N Shop supermarket.  She told him that she had pain in the same place as before and needed another hospital check-up.  She had only been released from hospital that morning.  She cried bitterly.  He told her not to worry.  DW2 heard a woman’s voice in the background saying ‘is there something you have not paid for?’  The appellant suggested to DW2 that they hang up and speak later.  Subsequently, as the appellant did not meet her as arranged, she rang him and discovered that he was with the police.”

The verdict

5. As regards why he was sure of the appellant’s guilt, the Magistrate gave the following reasons :

“             The prosecution called two witnesses.  And in my view, the evidence of those witnesses was credible.  The defendant has elected to testify, and I have to say that I did not believe his version of the events.  It was not credible in certain important material aspects.  His description of how he was treated by PW1 and PW2 after being stopped did not smack of the truth.  According to him, he was very cooperative and willing to return to the supermarket.  He began, in fact, to walk back with them.  Despite that, PW1, who was in front of him, pulled him by his clothing, whilst PW2, who was behind him, pushed him so hard that he felt pain in his back and waist.

               According to the defendant, someone even rushed up and punched him in the forehead.  Up to this point, according to the defendant, he had been very cooperative and had made no attempt to flee.  I just do not believe that PWs 1 and 2 would act in the way the defendant had described.  In the circumstances, he was being fully cooperative.

               Furthermore, I did not believe the defendant’s testimony as to how he came to walk out of the supermarket with unpaid items in his own bag.  I am prepared to accept that he did receive a telephone call on his mobile telephone from his defence witness whilst he was still inside the supermarket.  I accept that his defence witness is an honest witness.  But I don’t believe the defendant’s testimony that somehow when he was changing the bag from his left to the right hand, the scallops and the patties accidentally fell into his bag, the zip of which just happened to be opened.  I don’t believe that.

               It was also in my view not credible that he would then, as he claimed, deliberately place the other remaining items in the bag whilst he spoke over the telephone.  It was patently clear from his evidence that the defendant is an intelligent man.  He must have known that an action such as placing the supermarket’s goods inside his own bag could only appear to any supermarket staff who observed that to be the action of a dishonest person.

               Even making the very difficult assumption that such an action was not dishonestly intended, it is inconceivable to me, no matter how distraught DW2 was over the telephone, that he would be so distracted by the telephone conversation as to walk out of the shop and go up an escalator to another level without appreciating that he had left the shop with unpaid goods.

               I reject defendant’s testimony.  I find that the prosecution witnesses gave their testimony honestly, and I accept their testimony.  I find that the scallops and patties did not accidentally fall into the defendant’s bag, that is Exhibit P1, the bag.  I find that they were placed by the defendant in that bag.  He also placed the jelly and the drinks inside that bag.  Accepting the testimony of PW1, as I do, I find that when he placed these items in his bag, he had not yet begun his telephone conversation with DW2.  That conversation only began as he started to walk to the entrance/exit of the supermarket.

               I further find that the defendant left the supermarket without paying for the items in his bag, and that shortly after being stopped by PW1 and PW2 outside the supermarket, he attempted to run away from them through a glass door.  I am satisfied, on all the evidence before me, that the defendant did have the intention of taking out the four items, which are the subject matter of this charge, out of the supermarket without paying for them.  I find that he appropriated these items dishonestly and with the intention of permanently depriving the owner of them.  I find that the prosecution has proved all the essential elements of this charge beyond a reasonable doubt and the defendant is convicted of the charge.”

8.           Although I was satisfied that the appellant had made the remarks attributed to him by PW1, they were not in my view probative of his guilt.  An offer to pay and a request for a chance could just as easily have been made by an innocent man caught in difficult circumstances as by a guilty one.  Similarly, whilst I was satisfied that the appellant had tried to escape from PW1 and PW2, I also did not regard this as probative of guilt.  This could just as easily have been the panic-induced reaction of an innocent man in difficult circumstances as that of a guilty man.”

The appeal

6. Before me, counsel for the appellant raises four specific grounds and one general one that the conviction was unsafe and unsatisfactory.  The specific grounds are :

“a.     The learned Magistrate failed to evaluate or consider all the evidence before him.

b.      The learned Magistrate failed to attach sufficient weight to the evidence of the Defendant.

c.            The learned Magistrate had failed to note the discrepancies of the 1^st Prosecution Witness’s evidence.

d.            The inference drawn by the learned Magistrate in convicting the Appellant was not the only reasonable and irresistible inference.”

7. In his written elaboration (adopted orally) counsel makes reference to the following main points to support his stated grounds :

(a)      Both PW1 and 2 testified that they saw the appellant using his mobile phone, but neither was able to confirm when exactly the appellant started using it.

(b)     For PW1, this was hardly surprising because, after seeing the appellant put things into his bag, her sight on him was partially obstructed.

(c)     For PW2, he had stated in his witness statement that once he started observing the appellant, he could see him using a mobile phone whereas in court, he said he only saw him using it from the time he started exiting the supermarket.

(d)     Speaking of witness statements, PW1 had also stated in her statement that she saw the appellant putting the meat like substance into a transparent plastic bag that Park’n Shop provided for holding food before putting it into his own bag.  When confronted with it in court, she denied ever telling that to the police.

(e)      The magistrate accepted DW2 as an honest witness.  It means accepting it as true that DW2 was having a lot of pain and crying.  In the circumstances, the conclusion that being the intelligent man he was, the appellant could not have been so distracted by DW2’s tone that he would forget paying for the items was not the only reasonable inference.

8. I do not think there is anything to these grounds of appeal.

9. It is untrue to say that neither PW1 nor 2 could be specific about when the appellant started using his phone.  PW1 put it categorically after the appellant had put the food items into his own bag (pp. 55, 57, 59 and 60 of the Appeal Bundle) and PW2 from the time the appellant started to exit the supermarket (pp. 69 to 70).  They were therefore consistent, and it was notwithstanding repeated cross-examination.  The transcripts also show that though PW1 conceded some visual obstruction, this obstruction was both occasional and partial and, in any event, qualified by the fact that PW1 was just five to ten feet behind the appellant (p. 54).

10. Regarding the inconsistencies with previous statements, it is again untrue that PW1 denied ever telling the police about the appellant putting things into the transparent bag.  The transcripts show that she merely could not remember.  In any event, previous inconsistencies is a matter that falls solely within the ambit of the tribunal of fact which after listening to all the evidence, is nevertheless entitled to form a favourable view of the credibility of the concerned witnesses.

11. To conclude, the magistrate was entitled to find as he did that the appellant put the food items into his bag before beginning his telephone conversation with DW2, an act that could have no innocent explanation in the circumstances of the case.  That said, I do not find the magistrate’s disbelief that the appellant could have been so distraught to be open to criticism either.  In my judgment, he was entitled to that view and he had given sufficient reasons for it.

Judgment

12. The appeal is dismissed.