HKSAR v. IP YIU FAI

HCMA454/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.454 OF 2001

(ON APPEAL FROM SPCC 7480 OF 2000)

---------------

--------------

---------------------------

J U D G M E N T

---------------------------

1. The Appellant was charged with one count of theft to which he pleaded not guilty. After trial on 14 March 2001 the learned magistrate convicted him of the charge and fine him $2,500. The Appellant now appeals against this conviction.

2. The prosecution's case alleges that the Appellant had stolen a total of six items from the Wellcome Supermarket at Public Square Street on 31 October 2000 and relied principally on one prosecution witness being the manageress of the Wellcome Supermarket in question.

3. In brief her evidence was that on the day in question she was on duty in plain clothes in the supermarket and saw the Appellant come in with a paper bag which she felt was empty at the time. She therefore paid attention to him. After taking a shopping trolley, the Appellant then attached this paper bag to the trolley in a position which was just in front of his own body. Pushing the trolley around the alleys of the supermarket the Appellant picked up six items from the shelves at various spots. One of these six items was a packet of rubber nipples. These items were identified and produced into evidence. Initially according to her these items were put into the shopping trolley by the Appellant. However after he had turned into another alley, she saw from the reflection of the glass door of a refrigerator that there was some action of the Appellant which caused her to take a peek at the Appellant. She then saw that the Appellant was putting these six items from the shopping trolley into the paper bag. After that the Appellant continued to push the shopping trolley along the alleys. He picked up one further item being a bottle of orange juice which he put in the shopping trolley. The Appellant then pushed the shopping trolley to No.3 cashier counter. She saw the Appellant making payment only for the bottle of orange juice so she went outside the supermarket to wait for the Appellant at the exit. She intercepted the Appellant when he came out of the supermarket and questioned him. In reply the Appellant said that the items inside the paper bag was bought from another market. She then asked the Appellant to go into the office where she checked the contents of the paper bag finding the six items in it being covered by a plastic bag which was folded up along its length. She then made a report to the police.

4. The manageress further gave evidence that all six items belonged to Wellcome Supermarket because she saw the Appellant picked them up from the shelves and furthermore when she checked these six items she found that on two of the smaller items there were the markings of "196" on the back and that this marking stood for the number of that branch of Wellcome Supermarket.

5. The Appellant gave evidence in his own defence at the trial. In brief his evidence was as follows. He was a civil servant with the Immigration Department as photographer and is married with two children. On the day in question he was not feeling well as he did not sleep well the night before and was also suffering from back pain which he had for over a year. He also had a headache and a cough. In the office he had taken some tablets for his back pain and had also finished the remaining quarter bottle of cough syrup. When he went out for lunch he was reminded by a colleague to get another bottle of cough syrup since he had finished his last bottle.

6. When he entered the Wellcome Supermarket in question he was feeling dizzy. He had brought along his own environmentally friendly paper bag as was his normal practice when going to a supermarket. He had tried to look for the cough syrup which he had finished in the office but could not find any in the supermarket. As he was feeling dizzy he did not know what items he had put into the shopping trolley from the shelves of the supermarket. The rubber nipples were of no use to him as his children were no longer babies.

7. After he had picked those items he went to the back of the supermarket which he felt was the exit. He thought he had paid for those items therefore he put them into his own paper bag. He was about to leave the supermarket when he felt thirsty. He then went back to get something to drink. He took a bottle of juice and went to the cashier which may not be the same cashier at the back of the supermarket. Since he thought he had paid for the other items, so he paid only for the bottle of juice but not the other items inside his own paper bag. When he left the supermarket he was intercepted by the manageress. At that juncture he realised he had not paid for the other items. He was taken to the office. He denied that in the office the manageress had told him of the marking system which she gave evidence of.

8. The defence also called as a witness the colleague of the Appellant to give evidence of his character as well as the fact that the Appellant had taken some medicine on that day before lunch and that he had reminded the Appellant to buy another bottle of cough syrup during lunch.

9. That being the defence run, it was common ground that the only issue at the trial was whether or not the Appellant had the intention to steal.

10. The learned magistrate, in her reasons for findings, accepted all the evidence given by the manageress of the supermarket and rejected the evidence of the Appellant, and on that basis convicted the Appellant of the theft charge that he faced. It is worthwhile to know the actual words as stated by the magistrate in her reasons for findings.

"From PW1's evidence before me, I made the following findings :

(1) the Appellant did pick up items P4-P9 in the manner as she told the Court;

(2) the Appellant did put the items into P2 at the location as depicted in the sketch P1 and in the manner as PW1 told the Court;

(3) the Appellant did say that P4-P9 were bought from another market;

(4) P4-P9 belonged to Wellcome;

(5) P4-P9 were covered by P3, the plastic bag when PW1 checked the items in the office in the presence of the Appellant."

and further on :

"I noted Defence Counsel's submission and Appellant's evidence that P4, the rubber nipples were of no use to the Appellant. I did not however accept his saying that he had no intention to steal".... "I did not accept his saying that he did not know what he had picked up from the shelves and had mistaken that he had already paid for them as he went past somewhere he thought to be a cashier counter at the back of the shop and therefore put the items into the bag P2."

....

"I found that the Appellant was fully aware of what he was doing at the time he picked up items form the shelves and later have them all put into P2. I found that he was fully aware of the presence of P4-P9 and their not having been paid at Cashier Counter No. 3 when he paid only for the orange juice. I found that he used P3 to cover the items in P2 to conceal them from being discovered by the staff of supermarket. I found that he did say to Prosecution Witness at the scene that he had bought those items from another market to cover his guilt and denied that in court as he later learned from Prosecution Witness that there were in fact markings on P4 and P9."

11. In the hearing of the appeal before me, counsel for the Appellant (who was not the counsel appearing for her at the trial before the magistrate) applied for leave to adduce further evidence in the form of an expert report as to the effect that cough syrup, in the quantity taken by the Appellant on the morning before he went into the supermarket in question, may have had on him. The application is made under section 118(1)(b) of the Magistrates Ordinance, Cap.227 which gives the judge hearing an appeal from a magistrate similar powers that the Court of Appeal would have under section 83V of the Criminal Procedure Ordinance, Cap.221.

12. It is quite apparent that such an expert report could have been obtained and put before the magistrate at the trial if the Appellant had been so advised. I also take note of the fact that counsel appearing for the Appellant in the Magistrate's Court was a competent and experienced counsel. No explanation however had been advanced before me as to why this was not done at the trial simply that it had not been done.

13. Whilst I have a discretion in the matter, I am not disposed to exercising such discretion in the absence of any reasonable explanation as to why that piece of evidence, which was clearly available at the time of the trial if it had been sought for, was not adduced into evidence before the magistrate.

Ground 1

14. The first ground of appeal alleges that the learned magistrate had misdirected herself on questions of law in that she had failed to expressly consider the mens rea for the offence of theft and the question of intent, the burden of proof in relation to the question of intent and in relation also to the question of intoxication as well as when the defendant chooses to give evidence and the likely effect of the "double" dosage of the cough medicine.

15. It has been said time and again that judges and magistrates sitting without a jury in a trial are not obliged to direct themselves in the same manner as if they were directing a jury. They, as qualified professional judges are assumed to know basic legal principles. (see Chan King Man v. R. [1980] HKLR 105). In the present case, the learned magistrate was alive to the only issue in the case before her being whether or not the prosecution had proved the intention to steal on the part of the Appellant.

16. On the facts as she found them, she rightly came to the conclusion that the Appellant was fully aware of what he was doing at the material time. She had not misdirected herself in law and there is no merits in this ground.

Ground 2

17. This alleges that the learned magistrate failed to expressly direct herself on a two-stage Ghosh direction in considering whether the prosecution had proved that the Appellant was acting dishonestly.

18. It has for long been well recognized that there is no general requirement that a Ghosh direction must be given in all cases involving issues of dishonesty. Much depends on the circumstances of the case itself. In this case, there could be no question but that if the Appellant knew what he was doing and knew that the six items had not been paid for when he tried to leave the supermarket, in other words that the non payment of those items by him were deliberate, then he must have been dishonest. In short, it could not have been a situation where he might have believed differently from what ordinary and reasonable people would have deemed to be dishonest. In any event that was not a defence raised before the learned magistrate. Accordingly there was no need for the learned magistrate to direct herself on a full Ghosh direction. This ground of appeal fails also.

Ground 3

19. This ground of appeal alleges that the learned magistrate erred in reversing the burden of proof upon the defendant because, it is submitted, that the learned magistrate, in certain parts of her Statement of Findings, rejected the evidence of the Appellant and disbelieved his evidence that he had no intention to steal, in particular where she says in her Statement of Findings "I note defence counsel's submissions ... that rubber nipples were of no use to the defendant. I do not however, accept his saying that he had no intention to steal."

20. The learned magistrate did in fact in another part of her Statement of Findings remind herself expressly that the burden is upon the prosecution to prove guilt.

21. However, as the tribunal of fact, the learned magistrate did consider not only the Appellant's evidence but also the submissions by defence counsel. Having considered all that, at the end of the day she rejected the evidence of the Appellant.

22. To say that the learned magistrate, in so doing, reversed the burden of proof is wholly without foundation and this ground of appeal has no merits.

23. For the above reasons, this appeal against conviction is dismissed.