HKSAR v. OR LAI HAN

HCMA437/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.437 OF 2000

(ON APPEAL FROM FLCC 16 OF 2000)

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J U D G M E N T

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1. The appellant, Madam Or Lai Han, pleaded not guilty to one charge of theft. The case was heard before a magistrate and she was convicted after trial.

2. The incident happened on 29 December 1999 at a Wellcome Supermarket in Tai Po, New Territories and the appellant was charged with stealing various items having total value of $511.10.

3. The prosecution called two witnesses. The first witness was a senior cashier of the Wellcome Supermarket at the material time. The prosecution case was that the appellant was seen taking various items from the display shelves and placing them into the plastic bag which she was carrying on her shopping trolley. She then went past the cashier and left the shop premises without paying. She was subsequently intercepted and taken inside the manager's office where she was heard to have said "Give me a chance".

4. The appellant elected to give evidence and her defence was one of forgetfulness. She had earlier that morning taken money with the intention to pay for her mortgage and when she was about to pay the items at the cashier, she realized some $5,000 was missing from her wallet. She thought she must have dropped the wad of money outside the supermarket. In her haste in trying to locate the money, she somehow walked pass the cashier counter without paying for the items. It was her case at the trial that she never asked for a chance from the manager as alleged by the prosecution. All she said was she did not steal anything, she lost some money and she was trying to find it. She did, however, offer to pay for the items.

5. Two grounds of appeal were advanced on behalf of the appellant : the first being that the magistrate failed to consider sufficiently or at all the appellant's account of the events. The second ground is that the admission "Give me a chance" does not amount to a confession, at best it is a neutral statement throwing light on the appellant's state of mind at the time when she was intercepted.

6. The appellant denied she had ever uttered the words "Give me a chance" or any other words to that effect. The magistrate was entitled to look at the circumstances under which the alleged utterance was made. He found in his Statement of Findings at para.4(4) that :

"On the question of the verbal admission 'Give me a chance' I find that such an admission was in fact made. PW1 did not know the Defendant, and there was no motive for PW1 to frame her up. Indeed no such motive has been suggested. On the basis of witness credibility I make a finding of fact that such an admission was made, and that the words were uttered out of a realisation of guilt."

The magistrate made the above observation in the light that the appellant's denial. There is no dispute of the act of the appellant putting the items into the plastic bag before she approached the cashier counter, nor does she dispute the fact that she had not paid for them when she went beyond the cashier counters. Taking all the circumstances into consideration, the learned magistrate was justified in finding that the utterance of those words by the appellant was an act of realisation of guilt.

7. On the issue that the magistrate should not have accepted the evidence of the prosecution without first considering the account of the appellant, the issue in question before the learned magistrate was one of credibility of witnesses. In the course of discharging his duty, no doubt the learned magistrate had observed the demeanour of the witnesses when they gave evidence and he came to a conclusion after hearing the witnesses. In coming to his conclusion, he had also considered the appellant's good character and the favourable consideration that should be given to it. Once he had accepted the evidence of the prosecution witnesses, his rejection of the evidence of the appellant was inevitable. The way in which the learned magistrate had taken in his evaluation of the evidence cannot be criticized in any way.

8. Based on the evidence before the learned magistrate, he was entitled to come to the findings as he did and convicted the appellant. The conviction is neither unsafe nor unsatisfactory. The appeal against conviction is dismissed.