HKSAR v. YIM WAI

HCMA892/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.892 OF 2003

(On Appeal From STCC 992 Of 2003)

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J U D G M E N T

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1. The appellant was convicted on 28 August 2003 of one charge of theft and was sentenced on the same day to a fine of $1,000 and costs of $140.

2. The facts found by the magistrate were that on 23 June 2003 the appellant was in the Park'N Shop Supermarket at Lee On Estate Commercial Centre at Ma On Shan. She approached the cashier's counter and paid for goods which she had selected for purchase. After she left the cashier's counter and passed through an anti-theft device, an alarm sounded, she was called back and was asked if there were anything she had not paid for. She produced some eye-drops from her handbag. The police were called and upon their arrival the appellant denied to them that she had stolen anything.

3. The appellant is of good character, not having had any previous convictions and in the past had worked at Park'N Shop and the magistrate found she was therefore familiar with the anti-theft precautions at the supermarket. The appellant gave evidence and said that she was pushing a trolley and had held in her hand the eye-drops which were small and could have fallen through the bottom of the trolley. The sole witness for the prosecution, the cashier, agreed that that could have happened had she been pushing a trolley but maintained that the appellant had no trolley. She was holding all the goods she intended to purchase in her hand. It was the appellant's case that as she approached the check-out with the eye-drops in her hand, that she searched in her handbag for money to pay in advance of reaching the check-out and in doing so, put the eye-drops in her bag while she looked for the money. She then took out some money, paid for the other goods and left, forgetting, she said, that the eye-drops were still in her handbag.

4. The magistrate said this :

" I do accept that this is possible, of course, for people to forget, to have lapses of memory; but this is not, I believe, one of those cases. I further do not believe that the defendant had gone through the contents of the side compartment of her bag to look for money in the way that she claims."

He went on further to say :

" I accept PW1's evidence that there was no queue at her cashier's desk. There was, therefore, nothing to prevent the defendant from simply approaching the till and waiting for the total bill to be calculated. In other words, there was no need for her to start looking for money until she knew what the total was."

Further, he said :

" Again, I remind myself that she has no previous convictions and that she would be familiar with these anti-theft precautions at the supermarket. I also note that her conduct after leaving the cashier's counter is not inconsistent with innocence. Nonetheless, I reject her account as to how the eye-drops came to be in her bag."

5. Ms Lam, for the respondent, very properly points out to me that the decisions made by the learned magistrate were decisions of fact. She says that an appeal court should be slow to interfere with the magistrate's finding as facts he being in a better position to determine both the demeanour and the credibility of witnesses, and I accept all she says as being a proper statement of the law. Nonetheless, appeal courts may analyse the findings of the magistrate in respect of the evidence and conclude there may be a lurking doubt in respect of the guilt of the appellant.

6. In this case, the magistrate, in my view, did not place sufficient weight upon the knowledge that the appellant had of the anti-theft precautions of the supermarket although noting them. Similarly, he dismissed the account of the appellant that she was looking for the money in her bag as she approached the check-out and said that there was no need for her to have done so. I can see no basis for this finding and I am satisfied that, given the clear record of the appellant and the particular facts of this case, there is room for the lurking doubt.

7. In all the circumstances, therefore, the appeal is allowed, conviction quashed and the fine and costs are set aside.