HKSAR v. CHAN WAI

HCMA55/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 55 OF 1999

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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 after trial before a Magistrate of an offence of shop theft, contrary to s.9 of the Theft Ordinance, Cap.210, in that on 9 November 1998, at Jusco Stores in Quarry Bay, a supermarket, she stole 14 items of food stuff valued at $305, the properties of Jusco Stores.

3. The Magistrate, after hearing all the evidence and Counsel's submissions, had this to say :

"...Miss CHAN, I find the evidence of the security officer to be reliable and truthful and I accept his evidence. I find your evidence to be inherently improbable. I find it an improbable thing that you would pay for a new trolley for a special purpose, pay for your bakery items, pay for your ice cream, but forget that you're trundling along with an almost full trolley of food unpaid for."

4. The prosecution's case was that on 9 November 1998, a Sunday, at about 2 p.m., the Appellant stole the 14 food items as mentioned in the charge. The prosecution called two witnesses, PW1, a store detective (or security guard) and PW2, a police officer who effected the arrest of the Appellant when the matter had been reported by the store to the police. There was no dispute that the food items were taken from Jusco by the Appellant without payment. The actus reus of theft was complete, the crucial issue was themens rea - whether there was any intention to steal.

5. The Appellant gave evidence in her defence. She testified in effect that she was preoccupied by many things and that she forgot to pay as she was absent-minded.

6. The crux of the prosecution case was that PW1, the security guard, had seen the Appellant put some items of food into a trolley which was not a trolley of the store, but a portable collapsible wheeled shopping trolley which the Appellant had purchased as a gift for her father-in-law in China before she went into the supermarket. She had purchased it on the same day at about 1:23 p.m. at a shop close-by. She gave an explanation why she used the trolley.

7. PW1 also told the Magistrate that the Appellant, after taking the two items and put them into her trolley, went out of the supermarket. She proceeded to an ice-cream shop within the premises, ordered an ice-cream, sat down at a table and ate the ice-cream. She paid for the ice-cream and then she left Jusco. She was intercepted outside Jusco some two metres away from the entrance. It is to be noted that the supermarket was one of an open-plan layout and that people could walk pass the cashiers and there was no barrier that stops people from exiting to ensure that they pay at the points.

8. The prosecution's evidence also contained two oral admissions made by the Appellant. PW1 said that when he stopped the Appellant outside Jusco, the Appellant said : "Give me a chance." He also said that when he brought her to the office of Jusco on the 4th Floor to take out the items from the trolley, she said : "I stole these items, don't report to the police. I'll pay for it now." However, when PW2 arrested the Appellant and cautioned her, under caution, she said : "This is not me who stole."

9. When the Appellant gave evidence, she produced a number of certificates and documents bespeaking as to her background and to her good character. In short, the Appellant was described by the organizations that she had worked in China before she immigrated into Hong Kong in 1992 as being an outstanding person of good character, upright, honest, of moral integrity and diligence.

10. The gist of the defence, according to the Appellant's evidence, was that she had a lot of things on her mind and that she was distracted by them. She had simply forgotten about the contents of her trolley.

11. She was a 37-year old married woman with one child. She had been living in Hong Kong since 1992 with her husband. She operated a garment business with her husband earning several million dollars a year. She jointly owned a residential property with her husband in Taikooshing. On the day in question, she had taken her daughter to school at about 12:30 p.m. She bought the shopping trolley at about 1:23 p.m. as a gift for her father-in-law. The trolley was subject to a seven-day return policy so that the Appellant decided to try it out. That was why she brought the trolley and used it while she was in the supermarket. She was at the time thinking about her husband's health; about an appointment with the designer for the flat that she and her husband had recently bought; she was thinking about the estate agent's suggestion to her to sell the flat; she was thinking about her losses suffered from shares and she was also thinking about her mother in China who was sick.

12. She had only just returned to Hong Kong from China at about 1 a.m. on that Sunday morning. She forgot to pay for the items. She had paid for the bread and she had consumed the ice-cream and paid for it. When she was accosted by PW1, he was rude and insulting and she refused to answer anything uttered by PW1. She also told a Mr Lam, the superior of PW1 at Jusco's office, that she did not steal.

13. In the Statement of Findings of the Magistrate, he also had the following to say :-

" I found the prosecution witnesses honest and reliable witnesses of the truth. I found the defendant's evidence to be inherently improbable and having observed closely throughout the proceedings I found her to be an unreliable witness. I rejected her evidence as self-serving disingenuous fiction."

" On the defendant's evidence she had paid for a new trolley at Price Rite, paid for her fresh bread at the bakery and her ice cream at Haagen Daz, but had forgotten the contents of the trolley. I found it to be inherently improbable that the defendant could have loaded up the new trolley with $305's worth of goods, walked out of Jusco, sat down at a restaurant to consume ice cream and then left the Jusco premises without paying for it. This was not an insubstantial load of food. I rejected her evidence that she had no intention of stealing. By the time PW2 arrived she had considered her position and denied the allegation under caution. I found that the prosecution had proven its case beyond a reasonable doubt. I convicted her accordingly."

14. Everything said by the Magistrate appears to be correct except where he used the term "inherently improbable", which gives rise to concern. I accept the submission of Miss Wan, for HKSAR, that when the Magistrate used the term, he was dealing with all the circumstances as described in the defence's case. However, I do not regard the story told by the Appellant being inherently improbable. The crux was that the Appellant forgot to pay although she did not forget to pay for the trolley, the bread and the ice-cream. The supermarket was an open-plan one where there was no barrier at the cashier's counter through which the Appellant left the supermarket. In the circumstances, it would not be correct to describe her story as "inherently improbable", albeit perhaps "improbable".

15. In every case when a person has been found bringing out items from a supermarket without having paid, the defence, if there is one at all, is almost always that he forgets to pay. That cannot be inherently improbable and each case must be considered carefully by the Court if it is satisfied beyond a reasonable doubt that there is the necessary mens rea of theft. I am of the view that the basis on which the Magistrate dismissed her evidence on the ground of it being "inherently improbable" is wrong. Had the Magistrate not committed this error, he might have considered the evidence of the Appellant in a better light.

16. Giving due weight to Appellant's good character as demonstrated by the various certificates she produced to the Court, I feel it unsafe and unsatisfactory that her evidence could be rejected straight away. I think the benefit of doubt, whether she did intend to steal, should be given her. I would allow the appeal, quash the conviction and set aside the sentence.