HKSAR v. LAM KAM CHUNG HING DANISE

HCMA1138/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1138 OF 2007

(ON APPEAL FROM TWCC 2435 OF 2007)

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J U D G M E N T

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1. The appellant was convicted after trail at Tsuen Wan Magistracy of a single offence of theft of three kiwi fruit valued at $10, contrary to section 9 of the Theft Ordinance.  She appeals that conviction.

2. The prosecution case was that the appellant had been seen by staff of a Park’n Shop Supermarket in Tsuen Wan putting the three kiwi fruit into a black plastic bag and then, when leaving the supermarket, paying for the other items in her shopping trolley but not the three kiwi fruit.  Outside the supermarket she was approached by other staff of the supermarket who asked her whether she had paid for the fruit in the black bag.  The appellant took out the fruit, said she had been careless and offered to pay.  Subsequently she was taken to the manager’s office and the police were called.  At trial the appellant elected not to give evidence.

3. Mr Raffell for the appellant relies on a number of grounds of appeal but it can be fairly said that fundamentally it is argued that the conviction was against the weight of evidence, the magistrate ignoring aspects of the evidence favourable to the appellant and arriving at her conviction in the absence of sufficient proof of guilt.

4. So far as Mr Raffell’s complaints concerning the lack of weight given to evidence supporting the appellant’s case are concerned, he refers to a number of aspects of the evidence.

5. He points out that PW1, the supermarket staff who saw the appellant put the fruit into the black plastic bag, said she had no difficulty in seeing the appellant doing so.  From that Mr Raffell extrapolates that the placing of the fruit in the black bag was done openly and not in any furtive way.  That meant, runs the argument, the appellant had not attempted to disguise her actions, and that circumstance was consistent with her case that she had not put the fruit in the bag intending to steal them.

6. He points out also that the appellant after leaving the store had not attempted to hurry away, but had lingered outside eating some lychees she had legitimately purchased.  He relies also on the magistrate’s finding that the appellant was “cooperative and helpful” when she was spoken to outside the store by a staff member.

7. These points alone, with respect, would be insufficient.  But perhaps the best point in Mr Raffell’s favour is that the three kiwi fruit taken by the appellant were on special offer, in the sense the store was offering three kiwi fruit for $10.  That suggests to me that the appellant in taking the three separate kiwi fruit had that offer in mind.  That would only be so if she intended to pay for them.

8. The magistrate said in this regard :

“      The 3 kiwi fruits costed $10 on that day.  They were discounted items : 3 fruits for $10.  It was submitted that, if the Appellant was minded to steal, would she bother to take just 3?  It was further submitted that it indicated an intent to buy these discounted items.  The submission had its attraction but there was nothing strange if a thief decided to pick just 3, even in the circumstances of this case.”

9. With respect I think that the appellant should be given the benefit of this point and I do not think it right to dismiss it as mere coincidence.

10. Miss Wan for the respondent points out that the appellant was observed to put the bag of kiwi fruit into the black bag after she had moved away from the fruit counter and may at that time have decided to steal the fruit.  That may be so and certainly considerable suspicion attaches to the actions of the appellant but at the end of the day and bearing in mind that this is a rehearing (see Chou Shih Bin v. HKSAR [2005] 1 HKLRD 838 at 844), I think the appellant should be given the benefit of the doubt generated particularly by this final point made on her behalf and the convicted is quashed.

11. The appellant may have her costs here and below, to be taxed if not agreed.