HKSAR v. LAU CHAK YAM

HCMA 159/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 159 OF 2004

(ON APPEAL FROM TWCC 3439/2003)

____________

____________

______________

J U D G M E N T

______________

1.  This is an appeal against conviction.  The Appellant was convicted after trial of one charge of theft.  The allegation is that he had stolen one packet of SEIROGAN pills and one packet of LIU SHAN WAN pills, in total value of $48.8, the property of Mannings Retailers Limited.

2.  The learned Magistracy had identified the main issue was whether the Appellant had acted dishonestly because the defence case was that he had forgotten to pay for the pills because of his personal circumstances at the time.

3.  PW1 was an employee of Mannings and her evidence which was largely not disputed was that the Appellant had passed through the alarm system of the shop causing the alarm to go off.

4.  He was made to go through the alarm system again and the alarm sounded again.  The rucksack he was carrying was searched and nothing was found.  The Defendant was then asked to go through the alarm system without the rucksack where upon the Defendant then asked to be taken to the office. 

5.  On the way to the office, PW1 saw the Defendant place one box of pills onto a display rack and the PW1 then took that box of pills and they went into the office.  When they were inside the office PW1 saw the Defendant drop another box of pills onto the floor.  PW1 then spoke to the guard and these two boxes of pills were produced in court as Exhibits P3 and P4.

6.  When the police arrived, the Defendant said, after caution, these words “Madam, I know that I am wrong – it was careless on my side.  I forgot to pay for these two packets of things – sorry”.  This was accepted by the defence as having been voluntarily made. 

7.  The learned Magistrate in dealing with the facts that I have just mentioned at paragraph 5 of his Statement of Findings concluded that with these words:

“there was issue upon some of facts outside these facts and I made findings in relation to the same.  I found no material inconsistencies in the prosecution case”.

8.  Then the learned Magistrate went on to deal with other parts of the evidence, such as whether he accepted the evidence that was given by the prosecution witnesses.  Most importantly, the learned Magistrate accepted PW1 as an honest and reliable witness and said he accepted most of her evidence.  The learned Magistrate also accepted PW2 as an honest witness and also said that he accepted most of his evidence. 

9.  One of the complaints of Mr Wu, who represent the Appellant, is that the learned Magistrate had used the word “most” but did not specify as to what evidence he did not accept.  It is apparent from the evidence that there were inconsistency in the evidence between PW1 and PW2 who was the security guard on the scene at the time.  Specifically PW1 had said that PW2 was inside the office with her and the Defendant at the time when the Defendant was brought into the office and the Defendant had thrown his box of pills onto the floor.  It was PW2’s  evidence that although he did the company PW1 and the Defendant to the office, he did not enter but had remained at the doorway. 

10.  The learned Magistrate was aware of these and in fact had very carefully pointed out the evidence of PW2 in relation to what he had heard when he was at the doorway of the office.  This is at paragraph 11 of the Statement of Findings.  The learned Magistrate said he accepted this part of PW2’s evidence and he had also dealt with the evidence of PW2 in relation to the possible attempt of the Defendant to escape and he said he accepted that it had not been an attempt to escape. 

11.  Although it is desirable, as Mr Wu pointed out, for the learned Magistrate to have specified in greater details what he accepted and what he did not accept in the witnesses’ evidence after saying that he accepted most of a witness’ evidence but I had concluded that upon reading the learned Magistrate’s Statement of Findings that the lack of specificity is not fatal to the conviction, because it is clear from the learned Magistrate’s Statement of Findings what the learned Magistrate had accepted as the truth in the case.

12.  Mr Wu criticised the inconsistency of PW1’s evidence and that the learned Magistrate had not sufficiently dealt with them.  Particularly Mr Wu pointed out that the evidence of PW1 was that she saw the Appellant drop the box of pills from his right hand but then in her witness statement, she had said that she saw him take the box out of his left front trouser’s pocket.  The learned Magistrate however had dealt with these consistencies at paragraph 8 of Statement of Findings and accepted the witness’ explanation of this inconsistency which he had a right to do.

13.  Mr Wu also pointed out the inconsistency between PW1 and PW2 as to PW2’s presence in the office.  There is no doubt that the learned Magistrate was aware of this.

14.  But whether PW2 was inside the office or not, he accepted PW1’s evidence that the Defendant had dropped the box of pills and the Defendant’s evidence was that he did drop the box of pills because his hands were trembling and it fell from his hand.  So I do not think much turns on this point. 

15.  As to the point that PW2 was drying to embellish his evidence by telling the Court that the Appellant had tried to escape, the learned Magistrate had sufficient doubt about this and, in fact, had decided that it was not an escape attempt and at the end of the day, it did not affect the finding of the credibility of PW2.

16.  As Mr Wu’s second ground is that the learned Magistrate had failed to properly assess the evidence of the actions of the Appellant in coming to his conclusion that the Appellant was acting dishonestly.  I do not agree with that because the learned Magistrate had very sufficiently considered the evidence of the Appellant as to what he said had happened and why he had neglected to pay for those tablets.

17.  It is always tempting for a court on appeal to interfere with the consideration of evidence and to put its own interpretation on the factual evidence but one has to be reminded that the Court of Appeal had said time and time again that the learned Magistrate is the best person to decide the facts because he is the person who had seen and heard the evidence being given and it is within his province to make findings of fact as to the factual issue in the case and if a court on appeal would be slow in interfering with his findings of facts unless it is obvious that he had made a mistake on the facts or on the law.

18.  Mr Wu also criticised the learned Magistrate for failing to consider the Appellant’s answer to the caution.  I do not agree because the learned Magistrate in paragraph 13 of his Statement of Findings had mentioned what the Appellant had told the police officer under caution and in paragraph 14 he went on to remind himself of the Defendant’s clear record and said that he did not believe the Appellant’s evidence about forgetting the boxes of pills in his pocket and he believed that the Appellant was fully aware of what he was doing and he rejected the Defendants’ allegation that he had not intended to steal.

19.  And furthermore, as Mr Lam pointed out, the learned Magistrate must have seen also that the Appellant, in his cautioned answer to police, had said that he was careless and had “forgot to pay for the packet of things”, whereas in Court, the Appellant’s allegation was that he was beset by family problems at the time and he had taken some medication which made him sleepy prior to going into the Mannings store and that was why he had forgotten that he had put the pills into his pocket.  Now, this is not mentioned in what he told the police at the time when he was cautioned.

20.  It is sad, of course, that for a person of the Defendant’s background that he should be convicted of this offence for stealing $40 worth of property. 

21.  Mr Wu had said everything that can possibly be said on behalf of the Defendant on this appeal.  But upon reading the learned Magistrate’s Statement of Findings and looking at the evidence, there was ample evidence in front of the learned Magistrate for him to come to the conclusion that he did.

22.  As Mr Lam pointed out, the Appellant had placed these two packets of tablets into his pocket rather than into the basket after taking these two boxes of pills.  He had passed through the alarm system more than once and he never took out the boxes and he only took them out on the way to the office and he had dropped one on the floor of the office, and when he was asked under caution after the arrest he had said he had forgotten to pay.  So there was sufficient evidence for the learned Magistrate to conclude as he did and I therefore find that there is no ground upon which I can interfere with this conviction.  And so the appeal is dismissed.