HKSAR v. MOK YUEN CHUEN, PHOEBE

HCMA 467/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 467 OF 2009

(ON APPEAL FROM ESCC 1116/2009)

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J U D G M E N T

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1.  The Appellant was convicted of one count of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210, after trial in the Magistracy before Deputy Magistrate, Miss Kennis Tai.  On conviction she was sentenced to a fine of $2,500; she appealed against conviction only.  At trial the Appellant was represented by counsel, Mr Kevin Steel and she was represented on appeal by Mr Andrew Bruce SC.

2.  The theft alleged was a shoplifting and the prosecution case was based on the evidence of one witness, PW1, a security guard at a City Super store where the incident took place.  The Appellant was first observed by the witness, at 3.15 pm approximately, in the novelties section of the store.  She was alone and walked past him several times.  He believed she looked at his nametag.  She was carrying a handbag on her left shoulder.  PW1 followed her and concealed himself at the counter in the fish section of the shop, from whence he could see the actions of the Appellant through the window.

3.  While there he saw the Appellant take a box of crabmeat from the freezer and put it on top of the file that she was carrying on her right arm.  She looked left and right once, then used her gray scarf to cover the box of crabmeat.  Next she took a tin of oysters from a shelf, lifted her scarf and covered the tin.  PW1 noted that the scarf was able to cover the products almost completely.  He was able to see the label on the crabmeat from where he was.  He confirmed that he saw this activity at a distance of less than 20 feet and that the lighting was good at the time.

4.  The Appellant left the fish section and approached the dried food section.  Within a minute of leaving the freezer she had taken out her mobile phone and was seen to be talking on it.  She then walked past the cashier line of tills without making any payment and took the escalator to an upper floor.  The security guard followed the Appellant at a distance of about 6 steps behind.  The Appellant turned back and noted that PW1 was behind her; he saw her walk up the escalator quickly.  The Appellant reached the Lane Crawford store on the first floor and walked out the glass door of the store into the public area at which point PW1 stopped her.

5.  PW1 identified himself as a security staff member of the City Super store and asked whether she had taken some items for which she had forgotten to pay.  The Appellant told him that she was still looking at items and PW1 suggested she return to the supermarket to explain that to the manager.  PW1 noted that the crabmeat and the tin of oysters were still covered by the Appellant’s scarf.  He said that when he stopped the Appellant she had her telephone to her left ear, although he could not say whether she was speaking on it.

6.  The Appellant returned to the security office where PW1 told the manager about the two items the Appellant had taken from the fish section.  The manager asked whether there were any other items, at which point the Appellant opened her handbag and took out 4 items of toiletries, some wrapping material and two boxes.  The total value of all the items, which were confirmed as unpaid for, was $890.  The Appellant told the manager that she was still choosing items to purchase and when he asked why the items were in her handbag with the zipper closed, she told him that she had treated it as a shopping bag.  PW1 said he had not witnessed the Appellant take any of the items found in her bag.

7.  The Appellant was searched by a woman police officer; she had $2,160 in her wallet.

Defence Case

8.  The Appellant elected to give evidence.  She was a university graduate – had a clear record – was a churchgoer and worked as an insurance agent earning $15,000 per month.

9.  She said that day she learned she had passed a professional exam and told her boyfriend this by an SMS message at 2.35 pm.  She entered City Super at 2.45 pm intending to purchase items for a celebration.

10.  She selected some cosmetic items and placed them on a folder she carried.  She took a call from her boyfriend at 2.54 pm then went to the food section.  Another call from her boyfriend followed – she discussed food with him and he told her to hurry back to her office.

11.  It was the Appellant’s evidence that she was distracted by the calls and thus walked up an escalator.  At the top she stopped and realised she had forgotten to buy chocolates, although she had chosen the boxes for them.  When stopped she told the security guard she had forgotten to pay, but had not finished her shopping.  She repeated this explanation to the manager and explained further that it was because she wished to separate the food from the cosmetic items, that she had put the cosmetic items in her handbag.  Later she repeated this explanation to the police.  She told the court she had about $100,000 in savings.

12.  The telephone records of the Appellant and her boyfriend were exhibited as Exh D3(a) and (b).  They show that between 2.30 pm and 3.41 pm some telephone calls/SMS messages were made to and from the telephones of the Appellant and her boyfriend.

Proceedings

13.  The trial was heard on 30 March 2009 and adjourned part-heard to 9 April 2009 when the evidence was completed and submissions were made.  The Magistrate adjourned to 17 April 2009 to consider the evidence.  She convicted the Appellant on 17 April 2009, after giving brief oral reasons for doing so.  The transcript of those reasons appears at B132-B136.

14.  Sentence was passed on the same day.

15.  Notice of Appeal against conviction was filed on 24 April 2009 and a Statement of Findings was prepared by the Magistrate. [B10-B30]

16.  Perfected Grounds of Appeal were filed on 8 July 2009.

Perfected Grounds Of Appeal

17.  There were 3 grounds of appeal, although grounds 1 and 3 overlapped.

18.  The first ground alleged that the Magistrate failed to provide sufficient findings in her verdict and that the conviction was unsafe and unsatisfactory because at the time of conviction critical questions of innocence or guilt had not been addressed.

19.  This failure was particularised :-

(A)    the Magistrate had not dealt correctly with the clear record of the Appellant until after the verdict.

(B)    challenges to the credibility of PW1 had been only briefly mentioned in the oral verdict.

(C)    the credibility of PW1 and the Appellant had been decided on their demeanour.

(D)    there were insufficient findings at the time of verdict as to inherent probabilities in the case.

20.  The second ground alleged that there was a material irregularity in the proceedings, because the Magistrate had added more material to the formal Statement of Findings than was contained in the oral reasons for verdict.

21.  A third ground, which overlapped with the first, alleged that the Magistrate in deciding there was no inherent improbability or distraction of attention caused by the phone calls, had failed to consider whether the Appellant’s version of events might be true and deprived the Appellant of the possibility of raising a reasonable doubt.

Good Character Direction

22.  The Magistrate in giving her oral reasons stated [B133G-I] that she had taken the Appellant’s clear record into account in her favour.  Although somewhat awkwardly expressed (or perhaps not adequately transcribed) it is clear that the Magistrate directed herself in terms of propensity and credibility.  She then stated [B135] that she took into account the Appellant’s background which, one might infer, included the clear record.

23.  Mr Bruce SC complained that the Magistrate should have made more of this; in other words a direction of ‘positive good character’ was due to the Appellant, although he did not explain why that should be the case, or why the direction given was inadequate.  He questioned whether the Magistrate had ‘really’ taken good character into account.

24.  He then complained that after announcing the conviction the Magistrate is recorded in the transcript as saying, “She has a clear record?”  It is quite possible, given the vagaries of the court recording system, that those words were a statement rather than a question, but even if couched as a question, it was nothing more than a routine enquiry of the prosecutor for confirmation.  It did not mean the Magistrate had failed to take good character into account or had not given it adequate weight.

25.  In the Statement of Findings at paragraph 40 [B20/21] the Magistrate set out the appropriate character direction; said the Appellant was entitled to have her good character taken into account in her favour and that she placed particular weight on it ‘given all the circumstances’.  In context that is a reference to personal matters relating to the Appellant.

26.  In my view there is no substance in this complaint.

Misuse Of Demeanour

27.  Although the Magistrate referred to demeanour in considering the evidence of PW1 and the Appellant there is no indication that she had relied solely or heavily on demeanour in assessing the evidence.

28.  In both her oral reasons for verdict and in the Statement of Findings the Magistrate considered the account of PW1 and also of the Appellant and tested the veracity of their accounts.  She looked at various discrepancies and considered inconsistencies.  She made judgments as to whether discrepancies and inconsistencies were, or were not, important or significant.

29.  She also looked at inherent probabilities by assessing varying accounts given by the Appellant; the 4 explanations of when she decided to buy the chocolates; whether she deliberately concealed the goods; whether she was aware of the shop boundaries and whether her attention was so engaged with her telephone conversations that she was distracted.

30.  Demeanour is one of numerous factors by which human beings assess one another’s conduct, credibility, relationships, or status.  It must be true that in every case the fact-finder takes into account, consciously or subconsciously, the demeanour of a witness who gives evidence.

31.  The criminal cases where demeanour has become an issue, are those where the fact-finder has accorded demeanour too much weight, or has relied on it so heavily that the inherent probabilities of the situation being considered have not been examined properly, or have been ignored.

32.  Juries are warned as a matter of routine that although demeanour is a factor they can take into account when assessing credibility that they should be aware that it is a minor factor and that it is often unreliable for reasons which are explained to them.

33.  It is not uncommon for counsel to exhibit a Pavlovian reaction to any use of the word ‘demeanour’ by a judge or magistrate and complain that its use must mean that their assessment of a witness’s credibility was based wrongly on demeanour.  It is necessary to look at what the judge or magistrate actually did, before concluding that the use of the word indicates improper weight being placed on demeanour.

34.  It is not correct to say in the instant case that the Magistrate decided the credibility of PW1 and the Appellant solely on the basis of demeanour.  Demeanour is but one of many factors in assessing a witness’s evidence and I am satisfied that in the context of the evidence as a whole it was not treated by the Magistrate as anything other than minor.

35.  I dismiss grounds 1 and 3 as being of no substance.

36.  The second ground of appeal was a complaint that a material irregularity had occurred as the Magistrate ‘added substantially to the Statement of Findings filed after the appeal was instituted than is contained in the reasons for verdict given at the time the Appellant was convicted’.

37.  It would appear inevitable that if brief reasons are given by a Magistrate and stated to be such at the time they are promulgated, it is likely that reasons given in a Statement of Findings will be more detailed.  However as long as the same essential material is contained in each and there are no variations in, or differences of approach, or reasoning, which could make the verdict unsafe, there can be no viable complaint about the increased content.

38.  I am indebted to Mr Edmond Lee for the Respondent, who helpfully outlined the scheme for each of the Reasons for Verdict and the Statement of Findings.  They follow a very similar, almost identical pattern in terms of subject matter; but in the Statement of Findings more attention is given to explaining the mental processes leading to the verdict and various matters are elaborated upon, or supplemented in some way.

39.  I do not find any substance in this ground either.

40.  This was a simple case of shoplifting.  The main issue for the Magistrate to decide was whether the Appellant had been dishonest.  The Magistrate considered with care the evidence put before her; gave herself the appropriate warnings and set out her reasons for convicting the Appellant.

41.  None of the grounds of appeal has been made out and accordingly this appeal is dismissed.