THE QUEEN v. WONG KAM YING

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL No. 377 of 1989

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BETWEEN

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J U D G M E N T

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1. The defendant pleaded not guilty in the magistrates court to a charge of theft which alleged that on the 2nd January this year inside the Cheung Sha Wan Wholesale Vegetable Market, he stole 25 catties of Chinese flowering cabbage and 90 catties of broccoli, the property of the Vegetable Marketing Organization.

2. Evidence before the learned magistrate, according to the learned magistrate's findings, established that the Vegetable Marketing Organization is responsible for the orderly organising of a wholesale market of vegetables.

3. In so doing the organization restricts transactions so that only the Vegetable Marketing Organization itself or dealers specially authorized can sell vegetables and only those holding a permit from the organization can buy them. When a permitted buyer purchases vegetables from the organization or an authorised dealer, he receives a document containing details of the transaction.

4. The buyer must produce that document to a staff member of the organization before he will be permitted to leave with the vegetables. The importance of the document is that it enables the organization to identify the dealer to whom it will look for payment, if the sale was made by a dealer and, whether tine sale is made by a dealer or by the organization itself, to enable the organization to identify the producer of the vegetables so that it can obtain its selling commission from that producer.

5. The evidence for the prosecution was that the appellant as a permitted buyer was leaving the market with 17 baskets of vegetables. When first asked by a member of the staff to produce the documents covering the purchase of the 17 baskets, he was only aisle to produce documents covering 12 baskets.

6. Eventually, however, he did produce another 5 documents but there were irregularities in respect of those documents in that, according to the staff, the prices purportedly charged for those vegetables were less than they ought to have been.

7. Consequently, if the documents had been accepted as representing the true details of the sales, the Vegetable Marketing organization would have received less by way of commission than it was entitled to.

8. The learned magistrate took the view that, because of this the defendant has not been proved to have stolen the vegetables particularised in the charge.

In his Statement of Findings, he says:

"It is clear that when he tried to remove the vegetables from the market without surrendering the receipt, he had tried to deprive the Organization of its commission. I thus find that he had attempted to deprive the organization of its said commission. "

9. He then went on to deal with the element of dishonesty in the definition of the and concluded that the appellant acted dishonestly and found that the appellant:

"had tried to or attempted to dishonestly appropriate the property of the Organization when he tried to remove the vegetables out of market without surrendering the receipts."

10. Earlier he had explained that under the definition of property, the Organization's right to the commission I have mentioned fell within that definition. He also found that:

"The said commission which the Organization is entitled to is property capable of being stolen."

11. Thus it is clear that the magistrate came to the conclusion that the evidence was at variance with the allegations in the charge to which the appellant had pleaded not guilty.

12. The point taken by Mr. Percy, who appears for the appellant today is that, having decided to amend the charge so that it coincides with his findings, the learned magistrate should have complied with the requirements of Section 27 of the magistrates Ordinance, and that as he did not the resultant conviction was wrong and must be quashed.

13. Mr. Sham, who appears for the respondent, concedes that point but he applies for an order for retrial.

14. Mr. Percy has of course opposed that application.

15. The problem, of course, is supposing that I thought that a retrial could be ordered in such circumstances what charge is the appellant to be re-tried upon?

16. Mr. Sham submits that the retrial should be on the original charge as laid.

17. I do not thing that can be right because there has been a finding that he did not steal the vegetables. As the amendment made by the learned magistrate is not appropriate there is no proper charge on which a retrial could be ordered. That consideration is sufficient to convince me that this is not a proper case for retrial.

18. Accordingly, the appeal is allowed, the conviction quashed and the orders made consequent thereon set aside.