HKSAR v. STINEMEYER, GERALD

HCMA437/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 437 OF 2008

(ON APPEAL FROM KCCC 1916 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Mr Peter Law sitting at Kowloon City Magistrates’ Court on 24 April 2008 of one count of theft.  

2. The appellant was charged with stealing five cans of Tsingtao beer at the New World Department Store, at the New World Centre in Salisbury Road, Tsimshatsui on 29 March 2008. 

The prosecution case

3. The prosecution case was dependent on the evidence of a security guard at the store (PW1).  He gave evidence of having seen the appellant behaving in a suspicious manner, holding a yellow plastic bag bearing the New World Supermarket logo.  He said he saw the appellant put a can or cans of beer into the yellow carrier bag and then pick up another can of beer which he carried to a chocolate rack in the store and then put that can into the carrier bag.  He intercepted the appellant outside the supermarket after the appellant had left without making payment.  Inside the yellow carrier bag there were the five cans of Tsingtao beer which were the subject of the charge, a bottle of drink, a towel and other white plastic carrier bags. 

4. When a police officer (PW2) attended the scene, he found that the appellant only had $6.20 on him.  The officer admitted that at the police station after asking the appellant whether he still wanted the white carrier bags which were in the yellow carrier bag, which were dirty and the appellant having made no response, he had discarded them. 

The appellant’s evidence

5. The appellant gave a detailed account of what he said were the events leading up to the incident in the supermarket.  He said that his Adidas bag containing clothing and important identification documents had been stolen when he had been taking a nap in a park the previous day.  Being very upset and depressed he had gone for a drink and stay outside overnight. 

6. The following morning, being still upset, he had bought some medication for a stomach problem and six cans of Tsingtao beer.  He had put those six cans of Tsingtao beer together with a bottle of energy drink inside two Wellcome bags, one inside the other to form a double bag.  After taking further medication he had later bought a bottle of wine and three cans of another brand of beer which he had consumed.  He had taken further medication.  

7. He had gone to the New World Store with five of the original six cans of Tsingtao beer inside the double Wellcome carrier bags.  He had gone there to look for some snacks to buy but could not find anything.  Because of his unstable medical condition he had taken three of his five cans of Tsingtao beer out of the Wellcome carrier bags and put them down, and had then taken three cans of Tsingtao beer belonging to the supermarket and put them in the Wellcome bag.  He denied ever having had a New World carrier bag.  He confirmed that the officer had thrown away the Wellcome bags and the bottle of energy drink at the police station. 

8. In assessing the evidence the magistrate reminded himself that PW1 was the sole prosecution witness to the events in the supermarket, and said that therefore he treated his evidence with caution.  He nonetheless found him to be a truthful and accurate witness.  He accepted his evidence and the evidence of how the white carrier bags had come to be disposed of.  The magistrate said he did not believe the appellant’s evidence.  He commented that if the appellant was as confused as he alleged he would not have been able to give as detailed an account as he had to the court. 

9. He found that the five cans of beer belonged to the supermarket and that the appellant had taken them from the supermarket without paying for them.  He disbelieved the appellant’s account of having been under the influence of alcohol and medication.  He said this :

“  Taking into account of all the circumstances, including how the Tsingtao were concealed, leaving the store without payment, only had $6.20, intoxication was rejected, irresistible inference was that the Defendant was dishonest and with the intention of permanently depriving the owner of having the Tsingtao.  I was satisfied that it was the fact.”

10. The appellant has put forward homemade written grounds of appeal upon which he has elaborated orally.  In his written grounds of appeal he repeated the account that he had given a trial, namely that he had brought his own five cans of Tsingtao beer into the supermarket in Wellcome carrier bags and had then, due to the effect of alcohol and medication, swapped three of those cans for three identical cans belonging to the supermarket.  He denied ever holding the yellow carrier bag which he said was produced later. 

11. Essentially he attacks the finding of the learned magistrate that PW1 was a credible witness.  He has pointed out that, despite having said that he was observing the appellant from a distance of 20 odd feet, PW1 still could not say how many cans the appellant had put into the carrier bag.  He points out that the police officer only mentioned the existence of the white bags in cross-examination.  He suggests that the destruction of the white bags precludes him from having a fair trial.  He further points out that there were no labels on the five cans of Tsingtao beer which were alleged to have been stolen to indicate from which store they came.  He requests the court to have the yellow bag examined to ascertain if his fingerprints are on the bag. 

12. As I said during the course of the appellant’s submission, this is an appeal.  Being an appeal it is based upon the evidence that was given in the lower court.  It is not part of this court’s role to order further investigations into the case.  Even if the court did order investigation as to whether the appellant’s fingerprints could be found on the yellow bag the absence of a finding of an identifiable fingerprint would not prove that the appellant had not touched the bag. 

13. Being an appeal this court has not had the opportunity of observing the witnesses and their demeanour when they gave evidence.  In such circumstances, an appeal court will not interfere with the magistrate’s findings as to the credibility of a witness unless there is something in the evidence that indicates that he is or might be mistaken. 

14. In this case I am satisfied there is nothing to indicate that the magistrate might be mistaken in his assessment of the credibility of the prosecution witnesses and of the defendant.  He accepted the evidence of the security guard that the appellant was carrying the yellow bag of the New World Supermarket and put cans of beer into that bag.  That clearly was a key consideration in his finding that the appellant was acting dishonestly.  He was aware that PW1 could not say how many cans of beer the appellant had put into the yellow bag when he first observed him.  He was also aware that there had been white bags in the yellow bag which the officer had thrown away.  He accepted the officer’s explanation.  I am satisfied that the reasons he gave for disbelieving the appellant cannot be criticized. 

15. In such circumstances, I find no reason for upsetting the magistrate’s findings.  I therefore dismiss the appeal against conviction.