HKSAR v. NG WAI LING

HCMA345/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 345 OF 1999

(On appeal from NKCC 8953 of 1998)

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J U D G M E N T

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1. The appellant, NG Wai-ling, was convicted after trial on a charge of theft. She was fined $10,000. She now appeals against the conviction.

2. The prosecution case against the appellant was simple and straightforward. She was observed to have picked up a pair of eyebrow tweezers valued at $52 in a Bako Shop at the Commercial Podium in Sincere House in Mong Kok. She then, so the prosecution alleges, concealed this pair of tweezers in her hands and tried to leave the shop without paying for them. The owner of this shop, a Mr CHIM Chi-wang, claimed to have observed the movement of the appellant clearly. He described how the appellant picked up this pair of tweezers with her left hand, transferred it to her right hand and then held it close to her body. The appellant then left his shop without paying for them. Apparently, at the material time, the appellant was together with another woman who had bought and paid for a doll from Mr CHIM's shop.

3. Mr CHIM Chi-wang was subsequently informed by his brother, who was working as a cashier in the shop, that the appellant had not paid for this pair of tweezers. He chased after the appellant and stopped her. The appellant was asked if she had a pair of tweezers that she had not paid for. The appellant said, "No". A pair of tweezers was subsequently found inside a plastic bag that the appellant was carrying. The appellant claimed to have purchased this pair of tweezers from another shop. She took Mr CHIM to a shop on the floor below, but the owner of that other shop said the pair of tweezers in question, in fact, did not belong to his shop. The appellant then suggested that it was probably brought at another shop.

4. When Mr CHIM insisted that the appellant should pay for the pair of tweezers, the appellant accused him of trying to frame her. Mr CHIM was able to confirm that the pair of tweezers in question did belong to his shop because of a distinctive mark in the price tag.

5. Mr CHIM's brother, Mr CHIM Chi-yan, confirmed that the appellant was with another woman who paid for a doll. He confirmed that his brother had asked him if the appellant had paid for a pair of tweezers. After he told him that she did not, his brother chased after them and he also confirmed that he heard the appellant saying that she had not purchased the pair of tweezers from his shop.

6. In cross-examination, he denied the suggestion that one of the women had purchased a pair of tweezers on an earlier occasion and that he had forgotten to make a record. Apparently, Mr CHIM Chi-yan, as a cashier of this shop, had the practice of making a record of every sale in his shop.

7. Apart from the arresting officer, the only other witness against the appellant was a Mr LEUNG Yiu-sum who ran another shop in the same shopping mall. Mr LEUNG also confirmed that Mr CHIM Chi-wang and the appellant arrived at his shop and showed him the pair of tweezers in question. He was able to confirm that this pair of tweezers was not purchased from his shop.

8. The appellant's defence was that she had earlier purchased the pair of tweezers from Mr CHIM's shop. She later returned with a friend who bought a doll. After she left the shop, she was told to open the bag she was carrying, and when the pair of tweezers was found, she was asked if she had paid for them. She was adamant that she bought this pair of tweezers on an earlier occasion and that she had, indeed, paid for them. She then took Mr CHIM to another shop to show him where she thought she had bought this pair of tweezers.

9. The appellant also called her friend who bought this doll from the Bako Shop in question. This witness said she was not given a receipt in respect of that particular purchase and she never saw the cashier in this shop - referring to the younger Mr CHIM - ever making an entry in the account book.

10. In the course of the trial, counsel for the appellant made the point that the shopping mall in question was full of small shops selling similar merchandise and it would be difficult for a shopper to remember which shop he or she had patronised. I think, having read the transcript in its entirety, counsel was trying to explain why the appellant made the mistake of telling Mr CHIM Chi-wang that she bought the pair of tweezers from another shop which, as it turned out, was, in fact, incorrect because the owner of the other shop had positively confirmed that this pair of tweezers did not originate from that other shop.

11. The learned magistrate was asked if he thought a site visit was necessary. The learned magistrate initially made the mistake thinking that the shopping mall in question was in Sha Tin instead of Mong Kok. He then said he knew what those shops were like and that he could take judicial notice of those shops. This episode formed the major, if not the only significant, ground of appeal.

12. It was suggested by counsel for the appellant, Mr Egan, that there was both an error of law and a material irregularity for the learned magistrate to take judicial notice of the type of shops in question. I do agree that it was wrong for the learned magistrate to claim to take judicial notice of the condition of the shops in question. It indeed is trite law that a judge should adjudicate on the issues involved in the dispute based on evidence presented to the court only.

13. A judge is only entitled to take judicial notice of facts which are notorious. I do not consider the condition of the shops - either in Mong Kok or in Sha Tin - to fall within such a category. But it is also important to consider the impact or effect, if any, of such mistake made by the magistrate on the conviction that he reached.

14. I have considered counsel's submission and the authority that he referred to. I am not persuaded that this aspect of the case was, in fact, relevant to the issue that the learned magistrate decided against the appellant. Reading from the transcript of the proceeding, the learned magistrate was clearly prepared to accept the point made by counsel for the appellant at the trial. To demonstrate the point, I quote:

"COURT: But I know what they are like and I can take judicial notice of those shops.

MR McGUINNIETY: You can? You know what I am talking about then?

COURT: Yes.

MR McGUINNIETY: All right. That would suffice for me, your Worship.

COURT: This is probably not necessary."

15. Clearly, on this point, the learned magistrate was taking judicial notice of a fact favourable to the appellant on the suggestion of defence counsel. The appellant can have no valid complaint whatsoever on this aspect.

16. The learned magistrate found the charge proved, based primarily on his acceptance of the evidence of Mr CHIM, the elder Mr CHIM, as well as his brother, the younger Mr CHIM. The elder Mr CHIM clearly saw how the appellant took the pair of tweezers and failed to pay for them. Indeed, if that was not what he saw, there would be no reason for him to stop the appellant in the first place. The learned magistrate, in my view, was clearly entitled to accept the evidence of the prosecution witnesses and reject the evidence of the appellant.

17. On the finding by the learned magistrate, the conviction was inescapable. I have considered the background of this matter and everything counsel has urged upon this court. I am satisfied that the appellant had been rightly and correctly convicted of the charge. There is nothing unsafe and unsatisfactory about the conviction.

18. In the circumstances, the appeal against conviction has to be dismissed.