HKSAR V. RIASAT ALI

HCMA 300/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 300 OF 2014

(On appeal from KCCC No 4463 of 2013)

_______________________

_______________________

_______________________

J U D G M E N T

_______________________

1. This appeal was first heard be for a Deputy High Court Judge Albert Wong on 24 July 2014. The appellant appeared in person and requested an adjournment in order to obtain legal representation to argue his appeal. The Deputy Judge granted the application and the appeal was re-fixed to be heard on 5 December 2014. The appeal came before me but the appellant failed to appear. The appeal was further adjourned to 22 January 2015 in order to ascertain the whereabouts of the appellant and to ensure that he was given notification of the hearing date. I am informed that inquiries have revealed that the appellant left Hong Kong on 8 September 2014 and there is no record of him having returned. It would appear that the appellant does not intend to proceed with the appeal against conviction and accordingly it is dismissed. I have nevertheless addressed the appeal on the general grounds initially filed by the appellant which complained that the evidence did not support the conviction.

2. The appellant faced a joint charge of theft before Ms Vennie Chiu Wai‑yee, a deputy magistrate sitting at Kowloon City Magistracy.  The appellant’s co‑defendant pleaded guilty to the charge, whereas he was convicted after trial.  On 16 April 2014, he was sentenced to 6 months’ imprisonment.

3. The particulars of the charge were that on 6 November 2013, he together with his co‑defendant stole four cans of milk powder inside Market Place by Jason at Tsim Sha Tsui being the property of Dairy Farm Group Limited.  The value of the cans of milk powder was $1100.

4. The prosecution case against the appellant was essentially based on the evidence of a police officer who was in plainclothes, the store manager, CCTV footage and admissions made by the appellant at the scene.

5. The magistrate in a comprehensive statement of findings addressed the evidence and the issues in a careful and considered manner and I could discern no fault on her part.

6. The police officer in question was patrolling the area where the supermarket was located when she noticed the appellant together with his co‑defendant.  She followed them and observed that another unknown man approached them.  She saw the appellant unzip the rucksack of the co‑defendant which he was carrying on his back and take out a white plastic bag which contained four cans of milk powder.  She then walked up to them and revealed her identity.  The appellant dropped the white plastic bag and the three men then ran away.  She called for assistance and eventually the appellant and his co‑defendant were apprehended.  The other man got away.

7. The store manager noticed that five cans of milk powder were missing from the shelf in the supermarket.  An abandoned trolley was found in the supermarket with one can inside it.  He checked the sales records and confirmed that no sales transaction had taken place for milk powder at about that time.

8. The CCTV footage which was admitted depicted the appellant at the material time entering the supermarket.  He was seen walking alone pushing an empty trolley and then later pushing a trolley with several cans of milk powder in it.  He was next seen pushing the trolley with only one can of milk powder in it and later leaving the supermarket empty‑handed.

9. When the appellant was apprehended by the police officer who had chased after him, he was asked why he ran away.  They conversed in Cantonese.  He answered “Sir the four cans of milk powder were stolen by Singh.  It has nothing to do with me”.  He was told that he was suspected of being involved in a theft and he was cautioned.  He then said that Singh “was the Indian who ran with me with the black rucksack.”  He further said that: “It has nothing to do with me.  At 4 pm, Singh and I hang out at K 11 Market Place.  Singh told me to put four cans of milk powder into his rucksack.  I didn’t know he didn’t pay.”  He was then arrested and upon being cautioned said: “I really didn’t know Ah Singh didn’t pay and steal the milk powder.  It has nothing to do with me.”  The appellant challenged the admissibility of the verbal admissions and after hearing evidence from the police officers involved the magistrate ruled them admissible.  The basis of the appellant’s objection was that he did not make the admissions and that the caution was administered in Cantonese and he did not understand what had been said.  In a careful analysis of the evidence, the magistrate accepted the evidence of the police officers concerned which was the only evidence before her and she went on to find that the appellant understood and could converse in Cantonese and that he made the admissions in Cantonese as alleged at the scene.

10. The magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt.  She accepted the evidence of the police officer that she observed the appellant take out four cans of milk powder from the rucksack of the co‑defendant and later put them down on the floor when she approached them and revealed her identity as a police officer.  The magistrate viewed the CCTV footage and found that the four cans of milk powder matched what was shown in the trolley being pushed by the appellant in the supermarket.  The magistrate accepted the evidence of the police officer who apprehended the appellant and found that the appellant uttered the verbal admissions in Cantonese as alleged.  She explained that she gave full weight to the inculpatory parts of the admissions.  She also relied on the admitted facts that stated that at specified times the appellant was walking alone with several cans of milk powder in the trolley that he was pushing and later was walking alone with only one can of milk powder left in the trolley.  She found that this was consistent with the appellant’s admission that he and the co‑defendant were at Market Place and that the co‑defendant asked him to put the milk powder in his rucksack and with the evidence of the police officer that she saw the appellant take the bag containing the milk powder out of the rucksack of the co‑defendant.  The magistrate drew the only reasonable inference that the appellant and the co‑defendant had acted in concert to steal the cans of milk powder by the appellant putting them into the rucksack of the co‑defendant and then making off out of the supermarket.

11. I can find no fault whatsoever with the analysis and reasoning of the magistrate and no reason to interfere with the magistrate’s decision.  It is a careful and comprehensive assessment of the evidence which comes to the proper conclusion in my view that the appellant is guilty of the theft of the four cans of milk powder to the requisite standard of proof.  On the material before me, I would have dismissed the appeal against conviction.