HKSAR v. NG LEUNG WAH, YVONNE

HCMA 432/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 432 OF 2003

(ON APPEAL FROM NKCC 1984/2003)

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J U D G M E N T

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1. On 2 May 2003 before Ken Ng Esquire sitting in the Magistrate's Court at North Kowloon this Appellant, a woman in her forties and of previous good character, was convicted on a charge of having on 13 March 2003 stolen a box of cheese bites worth $23.90 in a supermarket. She now appeals against conviction.

2. There was no dispute at the trial that the Appellant took the item and left the supermarket without paying for it. What the Appellant said when she was stopped, repeated when she was interviewed by the Police and testified at the trial is that she had forgotten to pay for it.

3. Apart from the fact that she left the supermarket without paying for the item, which is the sort of thing that people can innocently do when they are preoccupied as the Appellant said that she was, there was only one matter pointing to guilt on the Appellant's part. This was the testimony of a security officer of the supermarket who gave evidence, disputed by the Appellant but accepted by the Magistrate, that the Appellant had looked around in a suspicious manner.

4. Four perfected grounds of appeal against conviction have been filed on the Appellant's behalf. They read:

" 1. The conviction was against the weight of evidence. No reasonable tribunal of fact could have found the case proved on the basis of the evidence of PW1; the only prosecution witness.

2. The Learned Magistrate erred in that he 'entered the arena'; asking questions that were not merely seeking to clarify matters, and then proceeding to dismiss the evidence of the defendant on the apparent inconsistencies that arose as a result of the Court's own questions and accept the evidence of PW1 on the basis of the Court's own questions.

3. Inconsistencies or discrepancies in the evidence of the defendant, such as they were and as found by the court, were more apparent than real and in no aspect did they suggest fabrication.

4. The Learned Magistrate may have approached the evidence of the defence with a more acute sense of scepticism than that of the Prosecution."

These grounds are expanded upon in detailed skeleton submissions, and were developed in oral submission.

5. As far as Ground 1 is concerned, it is clear that the Magistrate's decision to convict depended heavily on the evidence of PW1, the security officer. Suffice it to say that in my view there appears to have been a good deal more problems with the security officer's evidence than the Magistrate appears to have appreciated. On this basis alone, I regard this conviction as unsafe and unsatisfactory. Even without reference to the other grounds of appeal, about which I say nothing, I feel that I must quash this conviction.

6. In the result, the appeal is allowed and the conviction is quashed.