HKSAR v. LAM KING WAH SHADOW

HCMA664/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.664 OF 2002

(ON APPEAL FROM ESCC 300 OF 2002)

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J U D G M E N T

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1. On 17 May 2002, the appellant Lam King-wah, Shadow, appeared before Ms J.M. Livesey who was sitting in Eastern Magistracy. She was charged with two counts of theft. She pleaded not guilty and the trial took place on 17, 21 and 22 May 2002. On 31 May 2002, the magistrate found the charges proved and convicted the appellant accordingly. The sentence imposed was 80 hours of Community Service Order.

2. The appellant sought to appeal against the conviction but not the sentence. At the trial, the appellant was represented by senior counsel Mr Cheng Huan and Mr K.J. Oderberg appeared for the appeal.

3. The particulars of the two counts of theft were as follows :

"LAM King-wah Shadow, you are charged that on the 29th day of December, 2001 at Burberry Boutique, Sogo Department Store, 1/Floor, East Point Centre, 529-555 Hennessy Road, Causeway Bay, in Hong Kong, you did steal one 'Burberry' red wool jacket and one 'Burberry' black wool jumper, valued at $3,745 Hong Kong currency in total, the property of Burberry Boutique.

...

LAM King-wah Shadow, you are charged that on the 29th day of December, 2001 at Aquascutum, Sogo Department Store, 1/Floor, East Point Centre, 529-555 Hennessy Road, Causeway Bay, in Hong Kong, you did steal one 'Aquascutum' leather jacket and one 'Aquascutum' orange knitted jumper, valued at $7,945 Hong Kong currency in total, the property of Aquascutum."

4. This case involved the allegations of shop theft from the two boutique shops in Sogo. The prosecution alleged that the appellant had concealed the various items on her person and in her bag. She was stopped by the salesladies before she had passed the cashier counter.

5. The appellant had advanced a total of five grounds of appeal. In short, it was said that the magistrate had erred in finding that the appellant had the intention to permanently deprive the owner of the property referred to in the charges. It was argued that the learned magistrate had failed to consider the evidence of the psychiatrist on both the questions of intent and the appellant's testimonies. It was contended that the learned magistrate had treated the evidence unfairly by filling in gaps in the prosecution case when the evidence did not justify it. There was also the complaint that the magistrate had put the main prosecution witnesses into a "special category" and thereby attributing unwarranted qualities to their evidence. Finally, the criticism was made that the learned magistrate had made inconsistent findings, such as that she found that the appellant had a "clear recollection" of what had happened and yet she ignored her testimony that she did have the intention to pay for certain items.

6. Both counsel had helpfully prepared detailed skeletons. Counsel for the appellant had expanded on the various grounds in his submissions in court. On the point about intent, counsel stressed the fact that at the material time, the appellant had not yet left the area where payment for the goods could be made. He said that the appellant could eventually decide not to make the purchase and return the items to the respective shops. In this respect, counsel argued that whether or not the items were concealed by the appellant would be irrelevant. Equally, the appellant could decide to pay for the items at the cashier counter. There was no evidence that the appellant could not afford the items, and when the appellant was stopped, she had evinced an intention to pay. It was submitted that even if the basic facts of the prosecution case were accepted by the learned magistrate, there was no sufficient evidence to prove the element of "intention to permanently deprive". Counsel stated that it was not sufficient for the prosecution just to prove the appellant had assumed the right of the owner by, for example, concealing the items before leaving the shops. Counsel submitted that the staff had moved too quickly to apprehend the appellant before she had reached the cashier counter. Counsel said it was wrong for the learned magistrate to have convicted the appellant in the circumstances.

7. Counsel had also dealt with his other grounds of appeal. He pointed out that the learned magistrate had failed to understand the impact of the expert evidence, which was that the appellant may well have been absent-minded at the time of the alleged offence. Counsel referred this court to the passage in the magistrate's Statement of Findings, which, in his view, showed that the magistrate had wrongly put the prosecution witness into a special class and therefore fell into error. This appears in page 24 of the bundle; the last two sentences of the full paragraph, which reads :

" There are all witnesses who job is either mainly or particularly concerned in the prevention and detection of shop theft. PW2 in her evidence stated that it was part of her job to be aware of what customers were carrying."

Counsel said that by the same token, the appellant should also enjoy the special status and credibility. She was a senior police officer whose task was also to detect and prevent crime.

8. The prosecution, on the other hand, argued that there was nothing wrong with the conviction. Counsel for the prosecution made the point that the learned magistrate had expressly found that the appellant had dishonestly appropriated property belonging to another and intended to leave the shop floor without paying for the items. This intention to leave the shop without paying for the items would have satisfied the element of the intention of permanently depriving the owners of the properties.

9. Counsel for the persecution also made the point that the magistrate had not committed the error as the trial judge had in HKSAR v. Shen Da Cheng [1994] 1 HKC 293. There, it was held that the conviction could not be supported because of the suggestion in the summing up that police officers were less likely than other members of the public to tell lies. Here the magistrate was simply describing why the witnesses would pay attention to the appellant and it was not a case of putting the witnesses into a special category. As to the so-called inconsistent findings, counsel submitted that it was just a case of the magistrate making a factual finding and there was no inconsistency.

10. It should be noted that at the close of the prosecution case, the magistrate had ruled that in relation to the first charge, there was no case to answer on the red item but there was a case to answer on the black item. No issue was taken about this in this appeal. In her Statement of Findings, having analyzed rather fully the evidence of all the witnesses, the learned magistrate stated the main reasons of the conviction :

"In relation to charge 2, I was satisfied that the Appellant did hide the leather jacket underneath her own padded jacket, which she was wearing, and did hide the orange, crew necked top in her beige bag, which she closed, and then left the Aquascutum shop without obtaining an invoice for payment. Similarly in relation to charge 1, I was satisfied on her own evidence that the Burberry black top had come from the adjacent Burberry outlet. I was satisfied that she hid the item inside her beige handbag. Normally one waits until a shopper has passed the cash desk before arresting a person so as to be satisfied that there was no intent to pay. The Appellant had not left the sales floor when she was arrested, however I was satisfied that the only inference one could draw from the manner in which the various items had been concealed was that the Appellant was dealing with the items as if they were her own, that she was dishonestly appropriating property belonging to another and that she intended to leave the shop floor without paying for the items."

11. I have taken time to carefully consider all the relevant matters raised by the appellant. First of all, I cannot accept the complaint that the magistrate was indulging in speculation and guesswork and that she had tried to fill in gaps of the prosecution case. The examples cited by the appellant were really part of the magistrate's analysis of the evidence leading to her finding of facts. In this regard, the magistrate was just exercising the role of the jury. It would be wrong to read the individual sentences in the Statement of Findings in isolation. I failed to see any problem in the way the magistrate had approached the salesladies' evidence.

12. Similarly, I found no merit in the argument that the magistrate had placed the prosecution witnesses, the salesladies, into a special class, thereby giving them special status and credibility. I have gone through the Statement of Findings repeatedly and I would not agree that the magistrate had committed such an error. If one examined the relevant paragraph which contained the sentence criticized by the appellant, one could see that the magistrate had started off by analyzing the evidence of the appellant. One important point made by the appellant was that after she had selected the two items from Burberry, she then went into Aquascutum with the items visibly placed over her beige bag. Focusing on this, the magistrate had discussed the evidence of PW1, PW2, PW3 and PW4. She pointed out that none of the witnesses had noticed these items as described by the appellant. Then the magistrate went on with her analysis of the evidence :

"... PW1 and PW2 said that their goods definitely should have had price tags on them. The Appellant on her evidence, had decided to purchase the orange top from Aquascutum. Yet at no stage did she ask PW1, nor any other saleslady in the shop, for the price of the item. On her evidence she had left the shop openly carrying it, going straight to the cash desk, without knowing its price. Again neither PW1, 2 , 3 nor 4 refer to seeing this item being seen in the possession of the Appellant until they reach the security office on the 8th Floor. These are all witnesses whose job is either mainly or partially concerned in the prevention and detection of shop theft. PW2 in her evidence stated that it was part of her job to be aware of what customers were carrying."

13. Hence, one could see clearly that the magistrate was simply stating the basis as to why she had rejected the evidence of the appellant regarding how she was carrying the two items at the material time. The magistrate was not in any way saying that these prosecution witnesses had a special status and credibility. Her view was that if the appellant were carrying the items openly as claimed, then the four witnesses would have seen them because of the nature of their work. I see nothing wrong about the magistrate's reasoning.

14. Having considered the arguments, I found that Ground 5 was also not a meritorious complaint. The context of what the magistrate said was this :

"I accepted on the evidence, that the Appellant was not feeling 100% fit at the time of this incident physically, and on the basis of DW1's evidence it seems likely that she was also under stress. However she did go into Sogo and was concerned in very active clothes purchasing, not just browsing. She had a clear recollection of what she said happened and what she was doing and intending to do at the time of the interception. Thus as with the evidence of DW1, her medical condition had little relevance in the determination of the facts of the case save as a consideration of her general condition. ..."

Then the magistrate went on to analyze the appellant's evidence. Hence she had not completely ignored the medical evidence but it was a situation that in light of the appellant's own case, the magistrate found that such medical evidence was of little relevance. In the circumstances, I think it was a completely justifiable stance. Similarly, I agree with the respondent that there was no contradiction in the magistrate's reasoning. Her comment about the appellant's recollection was clear was to be seen in the context of why she said there was no issue of absent-mindedness. Her rejection of the appellant's evidence about the intention to pay was a finding on her credibility.

15. The most important ground in the appeal appears to be Ground 1. The main point taken was that the appellant had not yet gone beyond the cashier. It was said that the appellant could change her mind, so as to say, either to return the items or to pay for them. Counsel had, in his oral submission, used the analogy of a supermarket. He said that it would be opened to the customers to browse and choose the items while they are on the premises of the supermarket. They can then go to the cashier to pay. Of course, if they do not want the particular items any more, they could always replace them on the shelf.

16. I have given the matter much thought. In the final analysis, I found I could not agree with counsel's submission. First of all, the set up regarding the boutique shops in Sogo was different from the situation of a supermarket. It is a matter of common sense that when you purchase an item of clothing, you would want to check the size and know the price first. In a boutique shop, it is not a completely self-help situation like the supermarket. So, when someone by-pass the staff and conceal the items and leave the shop, that is certainly a significant factor to be considered by the trial magistrate.

17. Be that as it may, whether a person had formed the dishonest intent to permanently deprive depends on the circumstances of each case. I would agree that if someone is caught beyond the cashier without making payment, it would probably be a very strong case against him. But it does not mean the suspect could not raise the defence of forgetfulness. Equally, a person being stopped before he or she goes through the cashier does not mean that theft is therefore never committed or cannot be proved. It all depends on the circumstances. Factors such as the suspect's conduct and the location and condition of the goods would be relevant considerations.

18. In the present case, the learned magistrate was fully aware of where the appellant had been stopped. Indeed, defence counsel, in his thorough final submission, had directly addressed the court on this point. And the magistrate, in her oral judgment, had not ignored this aspect of the case. She said :

"In relation to Charge 2, I am satisfied that the defendant did remove the leather jacket and the orange knitted jumper, take them into the fitting room, remove the hanger, remove the price labels, and then conceal them about her person and in her bag, and that they were only found on the 8th floor when they were removed from the closed bag.

As I have commented, normally one waits until a person has left the floor of the sales. However, there are certain circumstances where, in my judgment and there is authority, that indicates that if items have been dealt with in a certain manner, then the only reasonable inference is one of theft.

In my judgment, when a person hides a leather jacket underneath her outer garment so that it cannot be seen and then hides three items into her bag so that they cannot be seen when the bag is closed, then that is more than sufficient to show that the only reasonable inference that can be drawn is that they are dishonestly appropriating property which clearly belongs to another by hiding it and that they intend to leave without paying and not return it.

In relation to Charge 1, I have already made the comment in relation to the weaknesses of the evidence on that matter. However, in relation to that, it is clear that a Burberry black woollen jumper was found concealed in one of the bags and the defendant admitted to removing it from Burberry and that she had intended to pay for it. However I have commented and I have found PW1 to PW4 to be truthful and honest witnesses. They did not see her going into the Aquascutum shop holding these items. They were found concealed in the beige bag on the 8th floor, with no price tag on them, and I therefore find Charge 1 proved in relation to the black woollen jumper."

19. The magistrate had reiterated this issue in her Statement of Findings. Towards the end of the document, the magistrate recognized that the appellant had not left the shop premises when she was arrested. However, she was satisfied that the only inference one could draw from the manner in which the various items had been concealed was that the appellant was dealing with the items as if they were her own, that she was dishonestly appropriating property belonging to another and that she intended to leave the shop floor without paying for the items.

20. The learned magistrate was obviously satisfied that all the elements had been proved in relation to both charges. Against the evidence of this case, she was fully entitled to draw such a conclusion. The magistrate had committed no error of law and I could find no basis to disturb her factual findings. This appeal must be dismissed.