HKSAR v. LO KWOK KIT SAM

HCMA760/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.760 OF 2002

(On appeal from ESCC 850 OF 2002)

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J U D G M E N T

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1) On 22 May this year, the appellant was tried and convicted by Mr McNair, sitting at Eastern Magistrates' Court, on a charge of theft and fined $2,000. He now appeals against his conviction only.

2) The allegation was that, on 26 March 2002, the appellant stole a lunch box, valued at $19.90, from the Hopewell Centre Branch of Park'N Shop Supermarket. The evidence can be stated shortly. At about 1:50 p.m., PW1, a security guard, saw the appellant in the supermarket. He was carrying a black bag over his shoulder and he was looking around. When the security guard was between 10 and 20 ft from the appellant, he saw him pick up a lunch box with his right hand from the sales counter and walk to another part of the supermarket and whilst doing so, he continued to look about himself. He never lost sight of the appellant who he then saw transfer the box to his left hand and put it into his left trouser pocket. He then proceeded to walk out of the supermarket past the cash register without making payment.

3) He left the premises at a quick pace and used the escalator to go to street level. The security guard stopped him on the escalator and identified himself. The appellant said nothing and hastened away. The security guard then chased after him, took hold of him and told him who he was and that he suspected him of having stolen the lunch box. He told the magistrate the appellant then said :

"Give me a chance, don't report it to the police."

He took him back to the supermarket and enquiries were made which revealed that payment had not been made for this item. Police were called and the appellant was arrested, cautioned and elected to say nothing.

4) The appellant, who was unrepresented, gave evidence. He told the magistrate that he had been waiting outside Park'N Shop to meet a friend. He became hungry but did not want to leave the place where they had agreed to meet to go and purchase something to eat, in case they missed each other. He then decided to ask a lady who was passing by whether she would be kind enough to go into the supermarket to buy him a lunch box. She seemed a nice person and he felt that he could trust her with the $20 price of the lunch box. She agreed and returned with a lunch box but without a receipt. Unfortunately, this box did not come with a spoon, so he stepped into the supermarket to fetch one. When he got there he saw another lunch box with contents that were more to his liking. He swapped boxes but he was concerned that he might have to pay again because he could not produce a receipt. He left the supermarket and when he was tapped on the shoulder by the security guard he ran off, really out of fear. He agreed that there was a struggle, but he denied that on arrest he had asked for a chance. That was the evidence.

5) The magistrate believed the security guard and disbelieved the appellant. He was satisfied that the appellant had not told the truth and that he had stolen the lunch box.

6) On appeal, the appellant makes a number of points. Firstly, he says that following an appeal for witnesses for a number of days outside the supermarket, a witness has now come forward who is capable of giving evidence that might assist him in demonstrating that he had not stolen the lunch box. His sister who works at the Hopewell Centre also happened to see some of this and he now wishes to call her. So, he invites me to set aside the conviction and order a re-trial so that he might call this additional evidence.

7) Secondly, he says it is highly regrettable that he was not represented at the trial. The Duty Lawyer Scheme had originally appeared for him, but that he had some misunderstanding with them over delivery of witness statements from the prosecution and they said that they could not now represent him, as I understand it, because of the shortness of time before the trial date. He submits that he has a right to legal representation and that for this additional reason, he should have a re-trial at which he will be represented.

8) His remaining ground relates to the merits of the magistrate's findings. He has stressed the point that the security guard's evidence about his having put the lunch box into his trouser pocket is wholly unreliable because the size of the box, relative to the capacity of the pocket, was such that, although it would just about fit, it would in fact bulge and protrude from the pocket. He says that the magistrate should not have accepted this version from the prosecution witness.

9) Turning to the individual grounds of appeal, firstly, as to calling further witnesses there really was no reason why he could not have called his sister at the trial if she was in a position to give helpful evidence. Some two months had elapsed between arrest and trial, and he clearly had access to his sister. There is no reason why he could not have called her and so, there is nothing in that point. As to the other witness who has appeared following his appeal for witnesses, there is no statement from this person and he has not attended today. I cannot judge what he might say and whether that testimony could have affected the outcome. I am not prepared to speculate about this, and this ground must also fail.

10) As to his lack of representation, I observe that he did not ask the magistrate for an adjournment so that he might get a solicitor. The magistrate gave him proper assistance, and no injustice has been caused by the fact that he represented himself. It seems to me that he received proper assistance in the conduct of his defence from the court.

11) That then leaves over the magistrate's findings. I am afraid that these are unassailable. The magistrate heard the evidence. It was for him to decide what evidence he accepted and what he rejected. His approach to the evidence of the security guard and of the appellant was impeccable. Quite clearly, having heard what they had said, he was entitled to come to the view that he did, which was that he believed the prosecution witness and disbelieved the appellant. Based on that view, all the elements of the offence were there and had been proved to the required degree.

12) This appeal must therefore stand dismissed.