HKSAR v. PALANIVEL , SHARMATHI

HCMA 122/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 122 OF 2013

(ON APPEAL FROM ESCC NO. 2860 OF 2012)

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JUDGMENT

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Introduction

1.  On the 11^th of January 2013 the appellant was convicted after trial before Ms Kathie Cheung sitting as a magistrate at Eastern Magistrates’ Court for one count of theft.  She was fined $2,000 and now appeals against both conviction and sentence.

The Prosecution Case

2.  This was based on the Admitted Facts which were put into evidence under section 65C of the Criminal Procedure Ordinance, Cap 221 and three live prosecution witnesses.  It was accepted that the defendant was arrested at Sogo by WPC 13273 at 2035 hours on 15 July 2012.  That identity was not an issue and she was of clear record.  PW1 was a plain clothes security guard of Sogo.  His evidence was that he was on duty at the material time and saw the defendant pushing a trolley which contained a rucksack and a recycled bag.  He saw her pick up a pack of lamb chops, push the trolley for 2 metres, look around several times and then put the chops into the recycled bag.  The defendant then pushed the trolley round the supermarket and picked up a pack of what is clearly naan bread but rather peculiarly was referred to as pizza.  This she placed in the trolley.  She paid for the naan bread but did not take out the pack of lamb chops for payment.  She left the shop and PW1 followed her.  He revealed his identity outside Sogo and said in English that she had taken goods for which she had not paid.  The defendant said “Sorry!”.  PW1 invited her to the Security Room and asked her what items she had not paid for.  She made no verbal reply but took from the recycled bag a pack of lamb chops and a pack of two guavas as well as the naan bread.  The plastic film wrapping the guavas was missing and one-third of that wrapping the chops.  Neither had a price label attached.  Staff of Sogo confirmed the goods belonged to Sogo and the police were called.  The chops were placed in a plastic bag and both the chops and guavas handed to the police.

3.  PW2 arrested the defendant using simple English.  She replied “Sorry. Please forgive me.  I want to pay for it”.  She also said words to the effect that she had made a mistake.  She forgot to pay and wanted to pay.  The defendant was nervous and crying.  PW3, the interpreter, present at the Police Station, confirmed that during her interview she appeared scared, and was crying and shivering. She also said something like she was sorry.  She forgot to pay and wanted to pay for the goods.

4.  She had in her possession ample money to pay.

The Defence Case

5.  Defendant exercised her right not to give evidence or call any defence witness.  From cross-examination and Mr Sutherland’s final submissions, it would appear that the defence case was that the prosecution had failed to prove to the requisite level that the defendant had removed the plastic film and price labels from the goods.  Therefore there was insufficient evidence to support an inference that the defendant acted dishonestly given what she said on arrest and at the Police Station about forgetting to pay.

Discussion of the Case

6.  The facts in this case are very simple indeed.  Why the evidence took so long to present is a mystery.  However be that as it may, this issue was simply had the prosecution proved beyond all reasonable doubt that the defendant acted dishonesty?  The cardinal point of the case became whether the prosecution had proved to the requisite level and that the defendant had removed the price labels from both the guavas and the chops.  All the wrapping from the guavas and one-third of this wrapping from the chops.  If they had done so, did this lead naturally to an irrestible inference that the defendant must have done so to facilitate the theft of those items?

7.  Prosecution, fairly in the hearing of this appeal conceded the following:

(i) they had provided no or insufficient evidence in relation to the guavas to show whether they would or should have been wrapped and a price label attached at the fruit and vegetable section or whether it was at the cashier’s desk they were priced;

(ii) that they had not and no attempt had ever been made to locate or call the assistant at the meat counter who was said to have wrapped and priced the lamb chops.  That prosecution witness could have at least spoken as to the operation of the sales; and

(iii) that prosecution had failed to produce photographs, which were available to the Court, of the condition in which the guavas and the lamb chops were found.  As perishable goods they could not be produced at the trial.

8.  Therefore relevant evidence was not presented to the trial court.  This meant that the sole witness of fact was PW1, the store detective, who did not see the defendant select the guavas so could give no evidence as to their packing or what if anything the defendant did to that packing, and observed the defendant receive the lamb chops from a distance of about 2 metres.  PW1, a very fair and honest witness made it clear at P103 of the bundle and pages 50-51 of the actual transcript that while he could see a blue and white label attached to the pack of lamb he could not see any of the details on it and was unable to say if it was well or loosely attached.  He did not see the assistant print out the label and attach it.  Nor did he see the act of wrapping of the lamb chops in film or how it was wrapped – tightly or loosely.  So the evidence of the packing of the lamb chops and affixing of any price tag was vague and uncertain.

9.  In addition the magistrate at paragraph 30 of the Statement of Findings makes it clear that the defendant did say she was sorry when intercepted by PW1. In the presence of PW2 and PW3 she also said she forgot to pay.  I will refer to her exculpatory explanation which is part of her mixed response, later.

The Perfected Grounds of Appeal

10.  There were four grounds of appeal, but in reality what it amounts to is this that the magistrate erred in concluding that the defendant had removed the wrapping and plastic film on the goods by drawing an irresistible inference from the evidence to this effect.  That the primary facts presented by the prosecution could and did not support this inference.  That the prosecution failed to providing sufficient evidence of Sogo’s practice, in respect of the two items relating to the weighing, wrapping and affixing of price labels. Further that the learned magistrate failed to reconcile the contradictions and inconsistencies in the evidence of PW1 and while accepting the evidence of PWs 2 and 3 she effectively disregarded their evidence.

The Magistrate’s Findings

11.  The magistrate in speaking of the defendant’s intention and the issue of dishonesty said this:

“30. The evidence clearly shows that the Defendant said sorry when she was intercepted by PW1. In the presence of PW2 and even PW3, she did say something to the effect that she forgot to pay and wanted to pay for the goods. …

…

32. I find PW1 to be a reliable witness and attach full weight to his evidence. Based on his evidence, I am satisfied that:

(1) At the time the Defendant picked up the pack of lamb chops, it was properly wrapped with a price label on it.

(2) The pack of lamb chops was put into the Defendant’s recycled bag. Once the pack of lamb chops was in the recycled bag, PW1 was not able to see what the Defendant had done to this pack of lamb chops.

(3) Thereafter, PW1 kept the Defendant under observation and did see her take out the pack of lamb chops until after interception. (Clearly the word “not” is omitted by mistake).

(4) When the Defendant took out the pack of lamb chops from the recycled bag shortly after interception, it was partially wrapped by a plastic film and the plastic label was not there. (Again the word “plastic” must be “price”).

33. From these facts, the only irresistible inference that I can draw is that it was the Defendant who removed part of the plastic film and the price label from the pack of lamb chops. She must have done that when she put the pack of lamb chops in her recycled bag.

34. As far as the pack of guavas is concerned, although PW1 did not see the Defendant pick up the pack of guavas and put them in the recycled bag, the Defendant must have, at some stage before PW1 kept her under observation, picked the pack of guavas and put it in her recycled bag. …

35. According to PW1’s evidence, it was the usual practice for staff to wrap the food …

…

37. In the circumstances, the only irresistible inference to be drawn was that at the time the Defendant picked the pack of guavas, it was properly wrapped with a price label affixed to it. …

…

39. In the circumstances, the only irresistible inference to be drawn is that it was the Defendant who removed part or whole of the wrapping of the two packs of food and removed the price labels on the food.

40. I therefore find that it is clear that the Defendant had the intention to steal. …”

Conclusion and Findings

12.  It is clear that the magistrate based the conviction on an irresistible inference that the defendant had tampered with the packing of both the guavas and the lamb chops.  In respect of the former by removing the film wrapping and the price label and in respect of the latter by partially removing the film and totally removing the price label.  This is not correct and defence has demonstrated this not to be so.  In view of the prosecution concession of lack of evidence as to how fruit and vegetables were dealt with we cannot be sure, as we have to be, that the guavas were ever wrapped in film and a price label affixed.  PW1 never saw the guavas until the defendant produced them from her bag.  Also PW1, a very fair and frank witness, could give only vague evidence of the packing of the chops.  Whilst he saw a label of some sort attached he could not confirm any details and has conceded he could not confirm how the film was applied.  In short, the removal of the film and label by defendant is not the only explanation from the condition in which the items were found.  In respect of the guavas they may never have been so packed and priced or the wrapping could have been loose and insecure and in respect of the chops the wrapping too may have been insecure. I bear in mind that PW1 observed this defendant from the receipt of the chops and could speak of no interference with the packing or the labels.  That being so and the magistrate accepting and therefore believing the evidence of PW2 and PW3, she at no stages makes any finding as how she dealt with her exculpatory explanation of mistake and forgetting to pay.  This remains live and unresolved. Therefore, I find a doubt in this case and therefore the prosecution has not proved beyond all reasonable doubt that the defendant intended to steal. Therefore the appeal is allowed, the conviction set aside and the defendant acquitted.

(Garry Tallentire) Deputy High Court Judge