HKSAR v. YEUNG WAI YIN

HCMA443/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 443 OF 2007

 (ON APPEAL FROM STCC 12197 OF 2006)

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REASONS  FOR  JUDGMENT

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1. On 30 May 2007, I allowed the appellant’s appeal against conviction.  I ordered that he be paid his legal costs of $400.  I said I would give my reasons later.

2. This was an appeal by the appellant against his conviction on 6 February 2007 after trial by Mr Dufton at Shatin Magistrates’ Court of the theft of two packets of men’s socks and one packet of men’s underpants from the Shatin branch of Marks & Spencer, and the sentence of a fine of $2,000 imposed in respect of that offence.  The appellant was represented at his trial by a lawyer instructed by the Duty Lawyer Service.  On 9 March 2007, the appellant in person applied for the magistrate to review the conviction and sentence.  Having considered the matters raised by the appellant, many of which had been raised at the trial, the magistrate dismissed the application.

3. There was no dispute that on 13 December 2006, the appellant had left the store carrying a transparent Ikea plastic bag containing two packets of socks and a packet of underpants belonging to the store for which he had not paid.  When he was stopped about 10 metres from the store and this was pointed out to him, he answered that he had forgotten to pay.  He then asked to be able to go back into the store and pay for the items.

4. The issue in the trial was whether the appellant had intended to steal the items or simply had forgotten to pay for them.

5. The prosecution called two witnesses, a female security officer of the company (“PW1”) and the arresting officer (“PW2”).  The appellant himself gave evidence. 

6. PW1’s evidence as to the circumstances in which the appellant had taken the socks and underpants and put them in the Ikea bag differed from that of the appellant.

7. PW1’s evidence was that she saw the appellant take two packets of socks from the rack in the menswear section.  He looked around and appeared to her to be suspicious.  She said that she was observing the appellant from his right side at a distance of around 10 feet when she saw the appellant turn round and move towards a corner where he put the two packets of socks into the plastic bag.  She noticed that there was already a floor mat in the bag.  I am told that in fact it was a sheepskin rug, the description that appears on the receipt (Exhibit D4).  As the bag was transparent, she was still able to see the two packets of socks inside the bag.  She saw the appellant turn around and walk back a few steps to his earlier position.  From 12 to 13 feet away she saw him put the packet of underpants into the same bag.  She was also able to see the underpants when they were inside the bag.  She agreed that there were times her direct view of the appellant was blocked but she alleged that she could see his entire body and his movements from mirrors on the wall.  The appellant walked slowly up the aisle and left the store.  The distance from the menswear section to the exit was about a hundred feet.  In doing so, the appellant passed two cashier counters but failed to make payment.  PW1 admitted that in her written statement she said that she was viewing the appellant from his other side.  She said that the statement had been recorded incorrectly.

8. The appellant’s evidence was that he had been shopping in Ikea before going to Marks & Spencer.  He had bought the sheepskin rug which was inside the bag.  He had gone into Marks & Spencer because he had some Marks & Spencer vouchers which he had been keeping for a long time and was afraid he might lose.  He could not remember how many vouchers he had but he thought that there were about $300 in total.  He held the Ikea bag with his left hand and a rucksack on his right shoulder.  He went to the menswear section and after browsing through, he had taken a packet of socks although he considered the style old-fashioned.  He had then checked the price of underpants.  He had not fully decided if he wanted the socks and underpants and therefore decided to look at the wine section and jewellery accessories.  As he walked to the wine section, he was carrying the two packets of socks and the packet of underpants.  While choosing the socks, his rucksack kept slipping off his shoulder.  Finding it difficult to hold the socks and underpants while continuing his shopping, he decided to put them on top of the Ikea bag.  This was so that he could use his hand to examine other items and prevent his rucksack slipping off his shoulder.  He said he looked at the wine section and then returned to the menswear section to see if there were any items he preferred to the socks and underpants.  He walked around the section several times but was unable to find anything.  He began to suffer from stomach ache because he had not eaten any food that morning.  He remembered that there was a shop in the basement where he could buy some food, so he walked out of the store, forgetting to pay for the goods.  He had not noticed any payment counters.  He said that he was not in good shape that day and was muddled.  He was not sure whether this was because he had not had enough food or because he did not have enough sleep the night before.

9. It can therefore be seen that there were significant differences between the accounts given by PW1 and the appellant.  In cross-examination, PW1 denied that the appellant had gone from the menswear section to the wine section before returning to the menswear section and picking up a second packet of socks.  But she did say that the appellant had walked from the wine and confectionery section to the menswear section before taking the items.  She said the appellant had immediately left the store after taking the items from the menswear section. 

10. PW2, the arresting officer, disagreed that he had found six vouchers from Marks & Spencer in the appellant’s wallet.  He disagreed that this was because he had only had a casual look at the wallet.

11. The magistrate’s Statement of Findings shows that he approached the evidence with considerable care.  He said he was sure PW1 and PW2 were witnesses of truth upon whose evidence he could safely rely.  He explained as to why he did not accept the appellant’s evidence in these terms :

“… I had no hesitation in rejecting the appellant’s evidence.  I did not find his evidence credible, in particular as to his actions in Marks & Spencer (for example after picking up the socks and underpants the appellant was not really satisfied with them so he went to the wine section; before going to the wine section because he held the socks and underpants in a kind of clumsy way the appellant put them in the IKEA plastic bag and that he did not notice where the cashier counters were when he walked out of the store) and that he forgot to pay (by reason of having stomach ache, not enough sleep, that he was absent minded and his mind was affected by matrimonial problems).

38.      I found inherently improbable that the appellant forgot he had put the two packets of socks and one packet of underpants in the IKEA plastic bag when he walked out of Marks & Spencer.  I rejected the appellant’s explanations to PW1 and PW2 that he forgot to pay.”

12. He went on to remind himself that the burden still lay on the prosecution to prove the appellant’s guilt beyond reasonable doubt.  He reminded himself of the appellant’s good character.  He said that having considered all the evidence, he was satisfied that the only inference to draw was that the appellant acted dishonestly when he put the socks and the underpants inside the Ikea bag and left the Marks & Spencer store intending not to pay for them.  

13. This is a case in which the magistrate had expressly relied on an inherent improbability that the appellant had forgotten that he had put the two packets of socks and one packet of underpants into the Ikea bag when he walked out of the store.  

14. He also said this :

“In reaching my findings I carefully considered the submission of Mr Leung, in particular as to the observations of PW1, the reliability of PW1’s evidence and the likelihood of the appellant using a transparent bag (exhibit P3).  Nothing said by Mr Leung caused me to doubt the findings I made.”

15. I do not in any way criticise the magistrate or his Statement of Findings which was careful and detailed.

16. This is however one of the rare cases where, despite the case having been properly considered by the magistrate, I am left with a lurking doubt as to the guilt of the appellant.

17. There are a number of features in the case which have led to this doubt :

(1)     As the magistrate said, the appellant was a 40-year-old married man with no previous convictions.

(2)     His evidence that he had $718 on him, sufficient money to pay for the goods, was not challenged.

(3)     At the heart of the appellant’s defence was his evidence that he was in possession of Marks & Spencer vouchers which he was looking to spend, two of which he produced to the court.  In summarising the evidence of PW2, the magistrate said that :

“… PW2 disagreed he found in the appellant’s wallet six vouchers from Marks & Spencer (two produced as exhibit D5) and disagreed this was because he only conducted a casual look at the wallet.  …”

 But he also said : “PW2 disagreed he found a receipt from IKEA (exhibit D4)”.      It is apparent from the time and date on the Ikea receipt at 11:50 a.m. on 13 December 2006, that the appellant must have bought the sheepskin rug a few minutes before entering Marks & Spencer and therefore it was likely to have been on him at the time.  In view of PW2’s evidence that he had not found the receipt, any evidence from him that he did not find Marks & Spencer vouchers on the appellant was at least open to question.

(4)     It would be curious if the appellant had deliberately moved to a corner in order dishonestly to appropriate the socks that he should have put them in a transparent Ikea bag where they would have been visible to the outside world.  It was common ground that he was also carrying a black rucksack.  If he had been intended to steal the socks (and later the underpants), it would have been much more likely that he would have put them in the rucksack or concealed them in the sheepskin rug within the Ikea bag. 

(5)     Being Marks & Spencer’s goods and presumably bearing their distinctive labels, they would have been readily identifiable, particularly against the white of the sheepskin rug as the appellant walked from the menswear department to the door. 

(6)     There was nothing in the appellant’s conduct when he was stalked outside the store suggested that he had anything other than made a mistake.

18. Having taken these matters into account, I allowed the appeal.