HKSAR v. NGUYEN THI HUYEN

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 192 OF 1998

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J U D G M E N T

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1. The Appellant appeals against on conviction on a charge of theft which was heard in the Magistracy. The theft was a shop theft; the Appellant was alleged to have entered the shop which sold handbags and watches and taken up a handbag. After walking around for a few more minutes she left the shop, carrying the handbag on her shoulder. The manager of the shop, who was PW1 at trial, stopped her outside the shop. An argument ensued when PW1 accused the Appellant of stealing the bag. A report was made to the police and soon after a police officer arrived.

2. It was argued by Appellant's counsel that the Magistrate failed to assess adequately the credibility of PW1 and that she did not properly take account of what Appellant said had happened in relation to her leaving the shop.

3. The second ground was that the Magistrate did not take into account evidence which supported the Appellant's case that she never intended to leave the shop without paying.

4. The main point of contention was whether in fact the Appellant had ever actually left the shop. PW1 gave evidence that Appellant had walked out of the shop and then turned left proceeding away from the shop. That was in direct conflict with Appellant's evidence which was that she only ever went to the vicinity of the doorway of the shop. It was submitted that the Magistrate did not deal with that conflict. It was also argued that P.W.1 may have been honest but mistaken as to her belief about the shoplifting. It was suggested further that, the Magistrate did not take into account various discrepancies between the evidence of PW1 and PW3, the police officer.

5. The fifth ground was that the Magistrate made no reference in terms to the burden or standard of proof and that this cast doubt on whether she applied the correct standard of proof in this matter. I do not find that any of these grounds of appeal have been substantiated. I am satisfied that the Magistrate, in a careful Statement of Findings, examined the discrepancies between the Appellant's evidence and the evidence of PW1. I am satisfied that as a professional tribunal she had in mind and was fully aware of the standard of proof required in a criminal case. I do not consider that the discrepancies of evidence alleged between PW1 and the police officer were such significant ones that they required examination in great depth by the Magistrate, if indeed they required examination at all.

6. The crucial point of evidence was whether the Appellant was stopped outside the shop. The only evidence on that point came from PW1, Appellant's story being in direct conflict. The Magistrate considered Appellant's account of rushing to the vicinity of the shop door because she thought she glimpsed a friend outside and rejected it, as she was entitled to do.

7. The Magistrate had to examine the evidence of PW1 and the Appellant - she did so by assessing credibility, by looking at inherent improbabilities and then exercised her judicial function in determining whether or not the Prosecution had proved the charge. What happened at the time the police officers came was not really significant in terms of what the Magistrate had to decide.

8. I dismiss this appeal.