HKSAR v. LAU KWOKYIU

HCMA 216/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 216 OF 2004

(ON APPEAL FROM TWCC 2715/2003)

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J U D G M E N T

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1. The Appellant appeals against his conviction. He was convicted after trial of two counts of theft. He was sentenced to 18 months on each charge with 6 months of the 2nd Charge to be served consecutively to the term of imprisonment on the 1st Charge thus making a total of 24 months. He had a previous conviction of theft for which he was given a suspended sentence and that suspended sentence was activated and that sentence was ordered to be served consecutive to the present sentence in this case. So he was to serve a total term of imprisonment of 30 months. The Appellant also appeals against his sentence.

2. The facts for the prosecution at the trial were that PW1 was working at the Park'N Shop Supermarket in Maritime Square on the morning of the day of the offence. He saw two men in the supermarket, one of whom he identified as the Defendant, putting boxes of moon cakes into a shopping trolley. He said that the other man was loading the moon cake into the trolley while the Defendant was standing nearby acting as a lookout. Both men left the shop without paying and the trolley was pushed by the other man followed by the Defendant who was looking around. PW1 said he followed these two men but they had run off quickly and he was unable to catch them. He then reported the matter to the manager of the Park'N shop.

3. Later on that day, PW1 saw the Defendant and the other man return to the shop and were again in the process of stealing moon cakes by loading them into the shopping trolley, after they had finished loading the trolley they again walked directly out of the shop without paying.

4. This time, PW1 chased after these two men and shouted after them. The two men looked back and continued to run while pushing the trolley, and they ran towards the exit door on the same floor of the shopping complex as Park'N shop. They pushed the trolley through the exit door and they discarded it. They re-emerged from the exit door and ran towards the escalator.

5. PW1 chased these two men down the escalator, then PW1's colleague, PW2, had heard the PW1's shout and was waiting at the bottom of the escalator and assisted in detaining one of the men after a struggle. The Defendant continued to run and was later detained by others.

6. PW1's said the evidence was important because he was the one to identify the Defendant on both occasions and his evidence was that he had an unobstructed view of the Defendant. He was only several meters away from the man. The lighting in the shop was good, and the Defendant had been stopped after a short chase.

7. The learned Magistrate when accepting the evidence had noted that there were discrepancies in the evidence of the PW1 which was properly pointed out by the defence counsel. The learned Magistrate at page 3 of his statement of findings (at page 14 of the appeal bundle) if noted the fact that PW1 said that the Defendant hit PW2 not the other man and this was in direct conflict with what PW2 had said.

8. The learned Magistrate then in the following paragraph noticed that PW1's evidence as far as the clothing of the Defendant was concerned was different in his statement from what he said in court and also that PW1 had claimed in the statement that he had been involved in the capture of the Defendant together with PW3 but had agreed in court that he had in fact not detained the Defendant.

9. The learned Magistrate had noted these discrepancies and also particularly noted that PW1 was a person prone to exaggeration and also noted that PW1 may have been confused as to what happened at the bottom of the escalator when he alleged that it was the Defendant who had punched PW2.

10. PW2 gave evidence he was at the bottom of the escalator and he had intercepted the co-accused. He was pushed away by the co-accused. He said that he was pushed away by the first man who ran down the escalator but the second man had fallen on the floor and was intercepted by him. He said that the man who had fallen on the floor, i.e. the co-accused was intercepted by him and punched him once in the mouth and that it is why the co-accused in this case had been charged also with an offence of assault.

11. The first man however who had pushed him out of the way was brought back by a security guard to where he and their co-accused were. Now, it is interesting to note that PW2 said he was pushed by the first man and the first man according to the evidence was the Defendant so PW1 may have been confirmed as to who had actually hit PW2

12. PW3 was the security guard and he was the person who assisted in chasing and detaining the Defendant.

13. At the end of the prosecution evidence, the Defendant elected not to give evidence as was his right but it just meant that there was no evidence in any way from him to contradict or explain the evidence of the prosecution.

14. The learned Magistrate had properly considered the identification evidence of PW1. At the end of the day, he decided that he believed PW1's evidence and accepted his identification of the Defendant. Also he noted that the evidence of PW1 was supported by the evidence of PW3 who saw the Defendant running away from the Park'N Shop employees and it is noted that also PW3 said that both PW1 and PW2 were in Park'N Shop uniform. Although bearing in mind the discrepancies of PW1's evidence, he was nevertheless satisfied that PW1's identification of the Defendant was correct. In the circumstances, he then convicted the Appellant.

15. Mr Fung, who represents the Appellant on appeal, submitted grounds of appeal criticising the learned Magistrate for accepting PW1's evidence and for not properly resolving the discrepancies between PW1's evidence and the evidence of the other witnesses and also the discrepancies between PW1's testimony in court and in his statement to the police. Therefore Mr Fung submitted the conviction was unsafe and unsatisfactory.

16. It is true that the learned Magistrate when faced with the inconsistencies relate to important and material matters in issue then the learned Magistrate should give proper reasons for resolving the inconsistencies in a satisfactory way. But in this case, the inconsistencies are in relation to the colour of the garment of PW1, whether he properly saw the Defendant assault PW2 and whether he had participated in the detention of the Appellant.

17. All these matters, the learned Magistrate was well aware of but he considered that it was not pertinent to his finding on the issue of the propriety of the identification. I had read the learned Magistrate's Statement of Findings and his oral verdict and it is clear that that was the issue in this case. He did not consider that these discrepancies affected his ultimate finding on that. I must agree with him. So I do not find that the conviction was in at all unsafe or unsatisfactory. So the appeal against conviction is therefore dismissed.

18. As for the sentence, Mr Fung submitted that the sentence was manifestly excessive in the circumstances because the starting point adopted by the learned Magistrate was exceptionally high. He also complained that the learned Magistrate had failed to properly consider the totality principle.

19. First of all, Mr Fung cited several cases, particularly the case of Ng Kin Nam which MA No. 340 of 2001 where it was considered by the Court of Appeal that 12 months starting point was too high but I note that that case was in relation to a shop-lifting offence.

20. In the case of Lam Kwai Wa MA No. 1078 of 2002 in which the judge on appeal said that a 10 week starting point was a reasonable one, again, it was only a case of stealing two pieces of cakes from a shop, although the Appellant in that case had more previous convictions than the present Appellant. But nevertheless, it is important not to just look at the previous convictions but also the facts in the case.

21. The learned Magistrate was entirely correct that this was a brazen series of offences, I could not think of a more brazen offence than this when the Defendant had earlier in the day gone into the shop and stolen together with his co-accused 22 boxes of moon cakes walked out without paying, came back again and did the same thing.

22. It is obvious as Mr Chan pointed out, there was a lot of planning behind it, there was pre-meditation and there offences were very professionally done. So it was no doubt that this is very different from the ordinary form of shoplifting that comes before the court.

23. The staring point of 18 months is a serious sentence. It is what can be term a long sentence but taking into account the circumstances of this case, do I think it is manifestly excessive? Well, I must say that I do not think it is manifestly excessive. The facts here are very different from the cases that I have been referred to. As the learned Magistrate pointed out it was a quite similar to burglary although he did not sentence for burglary, but nevertheless it was clear that both Defendants had gone into the shop with the intent of stealing those moon cakes from the shop.

24. In the circumstances, I also do not find that there is any merit in the appeal against sentence and the appeal is also dismissed.