HKSAR v. YIP WAI YEE

HCMA1003/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1003 OF 2001

(ON APPEAL FROM ESCC 2111 OF 2001)

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J U D G M E N T

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1. This is an appeal against conviction.

2. The appellant was convicted of shoplifting from a Marks & Spencer store. She had been seen by a store security guard to take a pair of sandals from a rack, place them in her left hand and then take a T-shirt from a rack and place that over the sandals in her left hand. Then with the T-shirt still covering her hand and the sandals she then put the sandals into her handbag.

3. The appellant then selected some more T-shirts and then eventually went to the cashiers counter and paid for the T-shirts. She did not pay for the sandals. She then left the store carrying her handbag and was intercepted by the store security guard. She was taken to the managers office. The sandals were still in her handbag. The police were called and the appellant was arrested.

4. The appellant appeals on a number of grounds. But it will be necessary for me to deal only with her first ground of appeal and that is, that the magistrate wrongly rejected evidence called in the appellant's case with no reasons or no proper reasons being given.

5. The essence of what is complained of in this regard is that the magistrate's reasons for not accepting the appellant's evidence were insufficient. Mr Jenkyn-Jones, for the appellant points out that so far as the transcript of the appellant's evidence shows she was not in any apparent way challenged in cross-examination and there appears to be no inconsistencies in her evidence.

6. The factual basis of the prosecution case was in large part unchallenged by the appellant. What was challenged was whether PW1's evidence was correct as to seeing the appellant put the sandals into her handbag. The appellant's case in this regard was that she had put the sandals on top of her open handbag on a part where the sides were folded in and covered them with a T-shirt that she also wished to purchase. And then later after some 10 or 20 minutes during the course of which she had left the handbag and the sandals by themselves on the floor of the store, she returned and picked up the handbag and the T-shirt on top of it. But at that stage she had not noticed the sandals. The suggestion is that the sandals in some way had fallen accidentally into the handbag.

7. PW1's evidence was to the effect that she had seen the appellant put the sandals into the handbag in a surreptitious way. In other words the evidence of PW1 and the appellant in this regard contradicted each the others.

8. Any acceptance of one witnesses evidence over anothers cannot be arbitrary. It must be based on reasons and those reasons must be stated by the convicting magistrate. Simply saying that an appellant's evidence was disbelieved when it was given in the court below is not enough : HKSAR v. Wong Lap Chi, HCMA 325 of 1999; R. v. Chang Siu Ming, HCMA 833 of 1995 and HKSAR v. Mak Kwok Kong, HCMA 956 of 1999.

9. As O' Connor J said generally in Lam King Ming, Cr. App. 601 of 1979 :

"The reasons for verdict should, in manner appropriate to the circumstances of the case, illustrate the salient points in the case and demonstrate that the evidence has been evaluated. Significant inconsistencies and conflicts should be dealt with in such manner as to indicate how those matters were resolved. There is no simple formula for what ought to be in a judgment as it must be related to the circumstances of the particular case. The magistrate should state his reasons to such an extent as will inform the parties as to how and why the particular verdict was arrived at and furthermore will enable an appellate court to perform its duty."

10. In the present case the magistrate's reasons for disbelieving the appellant were far from detailed. He said :

" I heard and assessed the evidence of the appellant. I was not at all impressed with it. I do not accept it and reject it. I do not believe her contention as to what she says occurred. I do not accept that she did not know what she was doing at the time."

11. With respect to the learned magistrate simply to repeat, in various terms, that he rejects the appellant's evidence or that she did not impress him as a witness is generally not sufficient.

12. In this case, the appellant's case was based on her firstly, accidentally allowing the shoes to fall into her handbag and secondly, as an explanation why she did not notice their apparent absence when she picked up her handbag and went to the cashiers counter without paying for them, that she had become confused and forgetful as a result of medication she was on for a depressive condition.

13. So there were two interlinked issues before the court for the magistrate to resolve so far as the appellant's case was concerned. It may be that the magistrate thought the appellant's case implausible so far as the sandals dropping into her handbag was concerned. If so, it would have been better to have said so.

14. In any event no reason was give for rejecting the appellant's evidence. Some reasons should have been given. It may well be that on occasion it is difficult to express any reason for rejecting a defendant's evidence. But if it is rejected there must, in fact, have been some reason for the court to have done so. For one thing a court cannot reject a defendant's evidence unless it is sure it is right to do so.

15. Whether the rejection occurs because of some inherent implausibility or contradiction in a defendant's case or the strength of the prosecution witnesses' evidence or by way perhaps of a number of reasons in combination a defendant in a criminal trial is entitled to know, even if very briefly, why his case and evidence was rejected and how the issues arising therefrom were resolved.

16. The appeal against conviction is allowed on this basis. The conviction and sentence are set aside.

17. Because of the relatively minor nature of the shoplifting offence I do not see any purpose in ordering a re-trial and I do not do so.