THE QUEEN v. CHEUNG MING-DUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 160 OF 1995

-----------------

-----------------

-----------------

JUDGMENT

-----------------

1. The appellant was convicted before a magistrate of stealing two pairs of socks and nine T-shirts from Wellcome Supermarket and sentenced to six months' imprisonment. He appeals against conviction only.

2. The only evidence against him came from the supervisor of the supermarket. Her evidence was that she saw the appellant furtively took two pairs of socks and put them into his trousers pocket. He then went to the shelf displaying underwears where he took some vests and tucked them inside the waistband of his jeans. He picked up a bag of rice and paid for the rice before he left the store. The witness stopped him. A police constable later arrived and the appellant immediately denied committing the offence.

3. Before me, the appellant complained that the socks and nine T-shirts were so heavy and bulky that it was not possible for him to put them under his waistband. I examined the exhibits. The pair of trousers were not produced and it was not demonstrated before the magistrate how such a large number of articles weighing so heavily could have been put under the waistband of the appellant. The police took no photograph of what the appellant was wearing after he was arrested. This is obviously an important piece of evidence. October of the year was still hot and people were wearing light and thin clothes. One thing that puzzles me in particular is that if the supervisor had seen all this going on, and it must have taken sometime for the appellant to put the articles under his trousers, why she did not go up to the appellant and asked him what he was doing. It must be obvious to her that this could not be normal shopping activities.

4. In all the circumstances, there must be a doubt and the conviction cannot be regarded as safe and satisfactory. Accordingly, the appeal is allowed, the conviction quashed and the sentence imposed thereon set aside.