THE QUEEN v. KAM YU HUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 212 OF 1988

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J U D G M E N T

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1. The appellant was convicted of theft and was fined $750. She appealed against both conviction and sentence, but has abandoned the latter.

2. It is a case of shoplifting, involving a $6.90 box of hairpins. The appellant is a woman of 25 and a clerk in a travel agency.

3. On 17th December last year she was in Mannings Dispensary in Queen's Road, Central, shortly before 1 p.m. She was seen by the store detective, Madam MAX Kwai-king, to pick up some strips of X'mas paper decorations. She then walked to another counter, carrying the decorations in her left hand, in which she also held a wallet.

4. Madam Mak followed the appellant. She saw her pick up a box of hairpins with her right hand and walk towards a shelf of toys, where she stopped. madam Mak was 4-5 feet behind her and she now saw the appellant put the box of hairpins into her wallet.

5. The appellant was then seen to walk towards the checkout counter and, on the way, to take with her right hand a $100 note from her wallet.

6. When she reached the counter, she placed on the counter the decorations that she had been holding in her left hand and handed the cashier the $100 note. The decorations were wrapped by another girl and placed in a Mannings bag. The appellant received her change which she placed in her wallet, and walked out of the shop. According to Madam Mak, the appellant did not remove the hairpins from her wallet.

7. Madam Mak followed the appellant outside, stopped her, and told her she had not paid for the hairpins All the appellant said was 'Ha'. Madam Mak thought she had not heard properly, so she told her again. The appellant was asked to return to the shop and, just before they entered, she told Madam Mak that she had forgotten to pay. When they reached the cashier, the appellant tool, the box of hairpins from her wallet, together with some money, and said "I'll pay now". The police were then called and the appellant was arrested.

8. According to the arresting officer, PC46641, the appellant told him she was in a hurry to go to work and forgot to pay for the hairpins; she thought the cashier had already included them. She pointed out that the cashier had made a mistake in the receipt and said she had not been trying to evade payment intentionally.

9. The appellant was correct when she said the cashier had made a mistake. The .receipt, which was recovered from her wallet; shows two items at $9.90, one at $2.90 and two at $3.50, a total of $29.70. Five X'mas decorations were in the Mannings bag; three were marked $9.90 and two $3.50. The hairpins were marked $6.90, though not very clearly. No article priced at $2.90 was involved. If, therefore only the decorations were tendered to the cashier, she undercharged by $7.00.

10. The appellant gave evidence. She agreed that the five X'mas decorations were in her left hand, together with her wallet. She said she then picked up the box of hairpins, which she also held in her left hand. She put all six items on the cashier's counter. They were put into a bag in which she also put her wallet and the receipt. She then left.

11. When she was approached by Madam Mak, she did not hear clearly what she said. She was asked to return to the store to check some figures. She was also asked if she had bought some hairpins and she agreed. She showed Madam Mak all the items in the bag. She later told the police it was a misunderstanding.

12. In cross-examination the appellant said she did not pay much attention to what the cashier was doing, but she saw her look at the price of each item. She did not check her change.

13. The magistrate found Madam Mak to be an honest and credible witness. He considered the appellant to be hesitant and unsure. He also accepted the PC's unchallenged evidence that the appellant said she forgot to pay for the hairpins. He found that the appellant's evidence contained a number of contradictions. He was satisifed that the figure $2.90 on the receipt had been punched in error for $9.90.

14. Once the magistrate had accepted the evidence of Madam Mak, a conviction was inevitable. Mr Midgley, for the appellant, has sought to persuade me in a well-reasoned argument that, if the magistrate had focussed his attention on the errors in the receipt, he might not have been prepared to attach weight to Madam Mak's evidence.

15. The cashier was not called as a witness. With leave; however, fresh affidavit evidence concerning the working of the cash register has been admitted on appeal. Two keyboards are used. The cashier punches the Group l keyboard for each new item. The Group 2 keyboard prints the price on the receipt and also has a repeat key, which saves the cashier the trouble of having to return to the Group 1 keyboard when there are several items priced the same.

16. Mr Midgley submits that, if only three X'mas decorations at $9.90 and two at $3.50 had been presented to the cashier, she would have had to punch the Group l keyboard only twice; the repeat mechanism in the Group 2 keyboard would have recorded the whole transaction and printed the receipt. He argues that the figure $2.90 is explicable only if she returned to the Group 1 keyboard, and she would only have done that if an item in a third price group was presented.

17. Counsel suggests that the box of iron pins was such an item. He points out that the price $6.90 is not clearly marked. That is so, but, on the other hand, it looks nothing like $2.90.

18. Had such a sequence occurred, the cashier must have either missed one of the $9.90 decorations, or failed to punch the repeat key a third time. She must then have committed a second error in misreading $6.90 for $2.90.

19. The Crown accepts that an error was made by the cashier, but submits that it was the more straightforward one found by the magistrate, that is to say that she misread $9.90 as $2.90. She then punched the wrong button, returning to the first keyboard to do so. That, in my judgment, is just as likely as Mr Midgley's theory. I agree with counsel for the Crown that the receipt evidence does not assist the appellant.

20. Whatever the explanation for the errors, they would not have been apparent to Madam Mak. If the hairpins had been put on the counter, and if the cashier had made no mistake, Madam Mak's accusation would have been refuted by the receipt. Madam Mak can scarcely have anticipated such errors. Would she therefore have jeopardised her credibility by deliberately making false accusations against an innocent customer?

21. Mr Midgley also submits that the magistrate failed to grasp the essential nature of the defence, namely that the appellant realised she had underpaid - $2.90 instead of $5.90 - not that she had forgotten to pay for the hairpins. He relies on a passage in the Statement of Findings in which the magistrate quotes the PC's evidence that she said she was in a hurry and forgot to pay. The magistrate omitted to remind himself that she had also mentioned the cashier's mistake.

22. The appellant, by this time, had had an opportunity to study the receipt and may have noticed the error. Although 'forgot' was not the appropriate word to use; if she was intending to point out that she had inadvertently been undercharged, it is conceivable that, being flustered and upset, she used the wrong word. The magistrate was aware that the defence was that she had put all the items on the counter and that the cashier had then made a mistake. The passage cited by Mr Midgley comes at the very end of the Statement of Findings, after he had set out his specific findings of fact, in which he had correctly quoted the PC's evidence. I am satisfied that he has not placed undue emphasis on what the appellant said to the PC, nor taken it out of context.

23. Such evidence could not, in any case, have detracted from the magistrate's view of Madam Mak's evidence. There was no possibility of an error on her part. The hairpins were either in the appellant's wallet or they were not. Madam Mak is either an honest witness, as the magistrate found, or she is a wicked liar. The appellant was a stranger and there was no apparent motive for her to make a false accusation that could so easily have been answered had the cashier not made a mistake.

24. For these reasons I am satisfied that the magistrate came to the correct conclusion. The appeal is dismissed.