HKSAR v. HUI SIU KIN

HCMA 688/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 688 OF 2008

(ON APPEAL FROM ESCC 1306 OF 2008)

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J U D G M E N T

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1.  This is an appeal by the appellant against her conviction by Mr Abu Bakar bin Wahab on one count of theft.

2.  The charge alleged that on 4 March 2008 she had stolen a watch and a sponge bag containing eight bottles of bath gel and shampoo belonging to a Mr Yeung Ming Fai (PW1) outside the kiosk of the Happy Valley Sports Ground in Wong Nai Chung Road.

3.  The evidence for the prosecution came from PW1, the alleged victim, and a police officer, PC7373 (PW2), who investigated the case.

4.  The prosecution evidence amounted to this.  At about 11:20 a.m. on the day in question, PW1 went to the Happy Valley Sports Ground to play soccer.  Having got changed he went to the Refreshment Kiosk manned by the appellant to buy drinks.  He carried with him a bag in which he had placed the sponge bag containing the bath gel and shampoo together with his jacket.  Inside the outer breast pocket of his jacket which he had zipped shut was his wrist watch.  He put the bag on the counter of the kiosk, but when he left the kiosk he forgot the bag.

5.  Shortly afterwards, at 11:25 a.m., the appellant was captured by a CCTV camera placing PW1’s bag on a wooden bench near the kiosk.

6.  Soon after noon that day, PW2 found the bag on the bench.  He did not check its contents but took it to the Management Office of the sports ground.

7.  At about 1:30 p.m., after the soccer game PW1 returned to the kiosk and asked the appellant about the bag.  The appellant replied that she had not found it.  PW1 then went to the Management Office where his bag was returned to him but he found that his wrist watch and the sponge bag and its contents were missing.

8.  PW2 was contacted and he returned to the Management Office at around 2 p.m.  He viewed the CCTV recording of the sports ground and discovered that the appellant had deposited the bag on the bench.  He and another colleague, together with PW1 and a Mr Ho from the Management Office therefore went to the kiosk to find the appellant.  He told the appellant he was investigating a theft case and cautioned her.

9.  On being asked by PW2 about the bag, the appellant retrieved the sponge bag from a carton somewhere behind and below the sales counter.  She took PW1’s wrist watch out of the sponge bag before handing it and the sponge bag and its contents to PW2. 

10.  PW2 arrested and again cautioned the appellant.  The appellant admitted being greedy and asked for a chance.

11.  The appellant’s account, when she gave evidence, was that whilst she was manning the kiosk she noticed the bag left on the counter.  She picked it up and put it on a box containing bottles of Vita Water inside the kiosk.  She was busy and continued working.  She was suffering from the effects of menopause and did not feel well.  At some stage she saw PW1’s jacket had fallen out of the bag and to the outside of the box containing the bottles of Vita Water.  She put it back in the bag and then took the bag intending to surrender it to the Management Office.  On the way she realised that the pot of herbal broth which she was cooking was boiling over.  She therefore put the bag on the bench and returned to the kiosk.  She forgot about the bag.

12.  She admitted that she had told PW1 that she had not seen the bag when he asked her about it at about 1:30 p.m.  She said that was because she was so busy that she had forgotten about it.

13.  She said that when the police officers later arrived at the kiosk with PW1, she had been asked to look for the items belonging to PW1 that were still missing.  She said that, having looked, she saw the sponge bag inside the box which contained the Vita Water.  She handed it to PW2.  She admitted asking PW2 for a chance and said it was up to PW2 whether he would treat her as having a greedy mind.

14.  The magistrate considered that the appellant’s account in detail.  He questioned how the appellant could have forgotten about the bag when PW1 returned to ask her if she had seen it.  He did not believe her explanation as to why she had put the bag on the bench.  He was unconvinced by the appellant’s account that PW1’s jacket had managed to fall outside the box containing the water bottles whereas the sponge bag had fallen within the carton, and concluded that the appellant was trying to pull the wool over the eyes of the court.  Despite the fact that she was of previous good character, he found she was not telling the court the truth.

15.  On the other hand, the magistrate accepted the evidence of PW1 that he had zipped his wrist watch in the outer breast pocket of his jacket and had not put it in the sponge bag.  He inferred that the appellant must have removed the wrist watch from PW1’s zipped pocket and retained it before putting the bag on the bench.  He found that she also must have taken out and retained the sponge bag and its contents.

16.  In reaching the conclusion that the appellant was guilty of the offence charged, the magistrate said that he had attached no weight to her alleged admissions.  This was because although PW2 had said that the appellant admitted being greedy and asked for a chance, he could not recall if the appellant had said anything further.

Grounds of appeal

17.  Mr Kwan Tong Lee, for the appellant, has put forward a number of grounds of appeal.  There is no substance in any of them.

18.  The first and main ground of appeal is that the magistrate should have held a voir dire to determine the admissibility of the evidence relating to the handing over of the lost items and the alleged oral admission by the appellant. 

19.  The appellant was represented by experienced counsel at the trial.  Counsel took no objection to the admissibility of this evidence.  None of the ground of appeal alleges incompetence on the part of counsel appearing at the trial.

20.  In so far as the evidence relating to the handing over of the lost items is concerned, Mr Kwan has been unable to indicate any evidence of conduct by the police which might render that evidence inadmissible.

21.  The evidence of PW2, which was not challenged, was that as soon as he revealed his identity to the appellant and told her he was investigating a theft case, he cautioned the appellant.  He then asked her if she had seen anyone leave a bag at the kiosk and she had then produced the missing items.

22.  When the appellant came to give evidence she was asked by her counsel to describe what had happened when the police had approached her.  Her counsel said this :

“Now we’ve heard the police officer cautioning you.  Forget about that.  Tell us what did the officer say to you.”

Her evidence was that the officer had said that he was making enquiries about a case of missing items and asked her to look for them.  She said that after looking for the items she found the sponge bag containing the items on or in the carton of water underneath where she was working.

23.  It was only after the appellant had handed over the items that the appellant alleged that the words were uttered which Mr Kwan now says should have formed the subject matter of a voir dire.  These words therefore cannot have had any impact on the handing over of the items.

24.  The appellant’s evidence was that after handing over the items the police officer had said she had wasted a lot of time and that he would charge her.  She said that another police office had said that it was just a trivial matter.  She had then said certain words to the effect that the police officer could treat her as being greedy and asking for a chance.

25.  There was nothing in the appellant’s evidence to suggest that the reference by one police officer to her having wasted a lot of time or the reference by the other police officer to it being a trivial matter had led her to say what she did.  In any event the learned magistrate expressly stated that he attached no weight to the alleged admissions of the appellant.

26.  The 2^nd ground of appeal was that :

“The Learned Magistrate failed to give any or sufficient regard to

(a)  the evidence of PW2 who said the Defendant had surrendered lost property to management office of the Sports Grounds in the past;

(b)  the fact that the Defendant had been operating the kiosk for 4 years and she was hitherto of clear record and if she had a criminal record she would lose the licence to operate the said Kiosk or such kind of business;”

27.  The magistrate was scrupulous in referring to the appellant’s previous good character and the fact that she had returned lost items in the past.  At the start of his summary of the appellant’s case he made specific reference to these matters.  He referred to them again in his conclusions.  He said :

“ … I have no doubt that the Defendant is guilty of the offence charged.  Before coming to this conclusion, I had also considered the following:

The Defendant has no criminal record.  She had in the past surrendered lost items to Management Office (see also the evidence of DW2) : These matters do not mean that the Defendant could not have committed theft.  We all have our moments of weakness.  We are all liable to succumb to temptation;”

Whilst it is true that he did not expressly refer to the consequences of the appellant being convicted of an offence of theft, it was not necessary for him to do so.  There was no reason to believe that he did not have that matter in mind.

28.  The 3^rd ground was that :

“The Learned Magistrate failed to give any or sufficient regard to the fact the Defendant was well aware that the Kiosk and the bench, on which the recycle bag was deposited, was under surveillance of and captured by the CCTV of the Sports Grounds.”

29.  There is nothing in this ground either.  The magistrate specifically said that, in coming to the conclusion that the appellant was guilty, he considered the fact that :

“The Defendant deposited the bag and jacket at a location where she should have known was under the surveillance of closed circuit television.  The Defendant had kept the wrist watch and sponge bag with bath gel/shampoo at her Kiosk for some 3 hours without attempting to remove them to avoid suspicion or detection : I consider that the Defendant simply failed to plan for and execute the ‘perfect crime’;”

30.  The next ground was that :

“The Learned Magistrate erred in finding that the recycle bag fell onto one of the 2 water cartons as shown in photographs 2 and 3 in Exhibit D1.”

That was however the evidence of the appellant herself.

31.  The remaining ground of appeal simply alleged that the magistrate erred in reaching the findings he did, without alleging in what way he erred.

32.  I find that the magistrate considered the case with great care.  No criticism whatsoever can be levelled at the manner in which he came to his conclusion.  Indeed I am very surprised that Mr Kwan had sought to argue an appeal with so little merit. 

33.  In the circumstances I dismiss the appeal against conviction.