HKSAR v. KWAN SZE MAN

HCMA797/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 797 OF 2009

(ON APPEAL FROM ESCC 1871 OF 2009)

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J U D G M E N T

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1. The appellant appealed against her conviction on 24 August 2009 by Ms Adriana Tse in Eastern Magistracy of a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210.  She did not appeal against the sentence imposed upon her, namely a fine of $1,500.00.

THE CHARGE

2. The charge alleged that on 14 April 2009, the appellant stole various items of cosmetics, stationery and clothing from Citysuper Limited (“Citysuper”) in Times Square, Wan Chai to a total value of $724.00.

THE PROSECUTION CASE

3. Mr Cheung Chi hung (“Mr Cheung”), a member of the security staff of Citysuper, stopped the appellant at 4:55 p.m. on 14 April 2009 after she had walked out of Citysuper’s premises in Times Square.  At 4:25 p.m. he had seen her inside those premises selecting goods at the cosmetics section.  She was holding a wicker basket, provided by Citysuper to its customers, in her right hand whilst her handbag and a paper shopping bag were on her right forearm.  There were a number of items in the wicker basket.  Then, the appellant walked around the premises selecting other items, which she placed in the wicker basket.  At 4:47 p.m. Mr Cheung observed the appellant removing items from the wicker basket and placing them inside her own shopping bag until only two items remained in the wicker basket.  Next, the appellant proceeded to the cashier’s counter where she paid for those two items.  There was no dispute that those two items were a ‘Dynamo Torch’ and a pilot pen refill, for which the appellant paid $99.  Thereafter, she left the Citysuper premises.

4. Mr Cheung said that he went up to the appellant and, having identified himself as a member of the security staff of Citysuper, told her that he had seen her “taking some things without making payment”.  The appellant asked him not to report the matter to the police.  In cross-examination, he denied that at that stage the appellant had asserted that she had paid.

5. He took her to the security room in the Citysuper premises.  There, she asked to see the manager.  Also, she told him that she had paid.  In response, he told her that she had not paid for the items inside her personal paper shopping bag.  At his request, the appellant took out of that personal shopping bag the items the subject of the charge.  A report was made to the police.

6. Police Constable 33224 (“PC 33224”) responded to the report made to the police and met Mr Cheung and the appellant at the Citysuper premises shortly after 5 p.m.  He said that the appellant was crying and asked for a chance.  In response to being arrested for the offence of theft, and having been cautioned, the appellant said : “Sir, give me a chance.  The items were stolen by me in Citysuper.”  A search of the appellant revealed $3,912.40 and other banknotes in a number of foreign currencies. PC 33224 denied that at this stage the appellant had told him rather that she had not stolen the items in question.

7. The appellant was taken to Wanchai Police Station where, in the presence of the appellant’s lawyer, PC 33224 made a record in his police officer’s notebook of the earlier conversation.  Having read the record, that it was noted in the police officer’s notebook and having so at his invitation, the appellant denied having made the oral statement to the police officer, which denial he recorded in his notebook.

THE DEFENCE CASE

8. The appellant gave evidence at a trial.  She was 18 years of age and of good character.  She had just graduated from the American International School and shortly before her trial had been offered a place to read law at Monash University in Australia.  In April 2009, she was preparing to sit Advanced Placement examinations on 5 May 2009.  As a result, from the beginning of April 2009 she was studying hard for those examinations.  Her routine was to go to bed at 11 p.m., wake at 2 a.m. and then study until 6 a.m.  She attended school between 8:15 a.m. and 3 pm to 4 p.m.  At 4:30 p.m. she received tuition at the offices of her parents until about 7 p.m.  After dinner, she studied between 9 p.m. and 11 p.m.  In prospect of an interview at the Chinese University, on 24 April 2009, she expanded her studies to include a wider reading of current affairs.

9. On the night of 13 and 14 April 2009, she testified that she studied until between 2 a.m. to 3 a.m. and, having slept for only four hours, rose at 7:30 a.m. to attend tuition at the office of her parents at 9 a.m.  She had worked into the early hours of the morning that night because she had lost some study time that evening baking a cake for her cousin’s birthday.  She ate no breakfast and felt very tired, had a headache, a runny nose and felt that she needed to vomit.  After her tuition, she ate some crackers and took a single 2 mg polaramines tablet which is (dexchlorpheniramine) prescribed for her in September 2007 by Dr Chan for a runny nose.  Because she had forgotten her mobile telephone it was necessary for her to call her home to obtain the contact details of her cousin.  Then, she took some money from a drawer in the office of her parents and travelled by MTR to Kowloon Bay from Kwun Tong.  There, at the gates of her cousin’s school, she delivered the cake to him, carrying it in the shopping bag of which she was in possession at the time of her arrest.  He returned the shopping bag to her.  They arranged to meet for dinner.

10. Next, the appellant travelled to Citysuper in Times Square in order to buy for which they called a “lab set”, that she had seen there some months earlier, as a gift for her cousin.  Having located that “lab set” in the toy section of Citysuper, she placed it in the wicker shopping bag supplied by the shop.  Having selected some items in the stationary and cosmetic sections of the premises, the appellant said that she discovered that the Citysuper wicker shopping bag was full.  As a result, she said she placed some items in her own shopping bag as she walked towards the cashier’s counter.

11. It was only after she had paid for some items at the cashier’s counter, left the Citysuper premises and had been stopped by Mr Cheung that she realised that there were items in her shopping bag for which she had not paid.  In the security room of Citysuper, she asked Mr Cheung to be allowed to see the manager to explain that she had not meant to steal.  She denied that she had made the oral admission to the police officer; rather, in a mixture of Punti and English, she had denied having stolen the items.

12. Dr Chan Yam Seung testified that he had prescribed the 12 tablets of ‘Polarmines’ to the appellant in September 2007.  The tablets were antihistamines.  She was to take four tablets a day.  The most common side effect of the use of that medicine was sedation and reduction of alertness.

STATEMENT OF FINDINGS

13. The magistrate stated in her Statement of Findings that she found both Mr Cheung and PC 33224 to be “ honest and credible” witnesses.  Of the appellant’s testimony, the magistrate found that the Citysuper wicker shopping bag was large enough to accommodate all of the items selected by the appellant, so that :

“… there was no reason for the defendant to place any of the items in her own shopping bag.”

14. Furthermore, in disbelieving the appellant’s testimony, the magistrate determined it to be “contradictory and contrary to common sense”.  Of the appellant’s explanation that she had forgotten to pay for the items that she had placed in her own shopping bag because she was “very tired” and “blurred” that day, the magistrate noted that in her testimony she had provided a detailed explanation of her conduct both before and at the time of the alleged theft.  Of her testimony that she was “very tired”, the magistrate noted that it was her evidence that “she slept very little even on a normal day”.  Finally, the magistrate noted that the transfer of the items into her own shopping bag by the appellant had taken place as she walked towards the cashier’s counter so that she found :

“It was incredible that she would have forgotten about those items within such a short space of time.”

GROUNDS OF APPEAL AGAINST CONVICTION

15. By Ground 1 of the grounds of appeal against conviction, Mr Ching Y. Wong, SC leading Mr Raymond Yu submitted that the magistrate had erred in drawing inferences adverse to the appellant based on the detail contained in her testimony, when the issue was the appellant’s mental state at the time of the events the subject of the charge.

16. By Ground 2, it was contended that :  

(a)  the magistrate erred in relying upon the evidence of PC 33224 of the appellant’s oral admission to him on arrest and after caution, without paying sufficient regard to the undisputed evidence that when the written record of that oral admission was read to the appellant at the police station she denied having made that statement.  Further, that in her evidence she had testified that she had told the police officer that she did not steal the items in question;

(b) in the context of the undisputed evidence that, whilst in the Citysuper security room, the appellant had asked Mr Cheung to see the management of Citysuper, on the evidence of the appellant in order to explain that she had no intention to steal, the magistrate erred in having regard in her oral Reasons for Verdict to the fact that she made no such denial of an intention to steal to Mr Cheung or to PC 33224, even in the presence of her own lawyer at the police station;

(c) the magistrate erred in determining, in the context of the size of the Citysuper shopping bag and the volume of the items selected by the appellant in Citysuper, that there was no reason for the appellant “… to place any of the items into her own shopping bag”.

17. By Ground 3 it was submitted that in all the circumstances there was a “lurking doubt” and that the conviction was unsafe or unsatisfactory.

A CONSIDERATION OF THE SUBMISSIONS

18. At the outset, I endorse the description that the magistrate gave of the nature of this case, namely : “This was a very simple case”.  There is available to the court a transcript of the entire proceedings in the lower court together with the documentary and physical exhibits.  Although the nature of these proceedings is a re-hearing on the papers, it is to be recognized that the magistrate had the distinct advantage of hearing at first hand the competing accounts given by the witnesses in assisting her to reach determinations of credibility.

19. In the context of the appellant’s testimony that, at the time of the events that are the subject of the charge, she was both “very tired” and “blurred”, in my judgment the magistrate was entirely justified in having regard to the fact of the very considerable detail of the events of the day in question about which the appellant did testify.  Of course, the issue before the court was the state of mind of the appellant on 14 April 2009, not in August 2009 when she testified.  However, it is a matter of everyday commonsense that if one is “blurred” and “very tired” the very formation of memory is impaired.  The deficit of incomplete memory is not repaired by recalling the events when one is fresh and no longer “blurred” or “very tired”.  Clearly, it was to that issue that the magistrate had regard in this respect.

20. It is clear that the magistrate was very alive to the evidence that, on the one hand according to PC 33224, the appellant had admitted stealing items from Citysuper after he had arrested her and administered the words of caution, whereas on the other hand a little while later in the police station when confronted with his written note in his notebook to that effect she had denied making the admission.  The magistrate found the police officer to be “honest and credible”, whose evidence she accepted.  Of the circumstances of the change in the position of the appellant, as the magistrate found it to be, in her oral reasons for Verdict the magistrate said :

“The defendant changed her mind after the arrival of her lawyer.”

21. In her oral Reasons for Verdict, the magistrate alluded to the fact that, although the appellant had testified that after she had been intercepted she had asked Mr Cheung to see the management of Citysuper in order to protest that “she had no intention to steal”, the appellant had not given that explanation to Mr Cheung or PC 33224. Mr Cheung agreed that a request to see the manager or management had been made.  There was no evidence from the appellant, nor for that matter from Mr Cheung, that she had told Mr Cheung the reason that she wished to see the manager, in particular that she wished to protest that she had no intention to steal.

22. The magistrate noted that the appellant made no protestation that she had no intention of stealing in the presence of her lawyer when the appellant took issue with having made an oral admission to PC 33224, which denial the officer wrote in his police notebook.  Earlier, the magistrate had stated that she accepted the evidence of PC 33224 and rejected the evidence of the appellant.  PC 33224 denied that the appellant had told him that she had not stolen the items in question.  There being no dispute that the appellant did not see the management of Citysuper, it is clear that the magistrate was addressing the issue of whether in those circumstances the appellant was denied the opportunity to protest her innocence.  That was the context of her observations, which she was entitled to make, that the protestations of innocence were not forthcoming to others elsewhere.

23. The context of the magistrate’s determination that there was no reason for the appellant to transfer the items that she had selected in Citysuper into her own shopping bag was the fact that by that time the appellant had been in Citysuper for more than 20 minutes and the appellant had concluded her selection of items.  Further, the very next thing that she did was to present herself at the cashier’s counter to pay for the two items remaining in the Citysuper shopping bag.  In my judgment, the magistrate was entitled to reject the appellant’s evidence that she had transferred the items into her own shopping bag because the Citysuper shopping bag was full.

CONCLUSION

24. In my judgment, for the reasons that I have given there is no merit in the various grounds of appeal against conviction advanced on behalf of the appellant.  Accordingly, the appeal against conviction is dismissed.