HKSAR v. TANG PUI YEE

HCMA 143/2023

[2024] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 143 OF 2023

(ON APPEAL FROM TMCC 1491/2022)

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J U D G M E N T

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1.  The appellant was convicted after trial of a single charge of theft; the allegation was she stole 33 items worth $1,651.70 from AEON supermarket. She was sentenced to a fine of $8,000. She now appeals her conviction.

The Prosecution Case

2.  The appellant entered the supermarket at about 8:15 pm on 29 May 2022 and was there for 50 minutes before she left.  It was not in dispute that whilst shopping she picked up a total of 37 items, put them in her shopping trolley and paid for 4 items using the mobile app of the supermarket known as “POS express” installed on her mobile.  She paid for one packet of mushrooms, valued at $4.90, 1 packet of lime fruits valued at $12.90, 1 cup of yoghurt valued at $9.90, and one packet of cotton bud sticks valued at $12.90, she paid a total of $40.60 with Alipay on the app.

3.  She collected a receipt for $40.60 from the self-checkout kiosk, pushed the shopping trolley to the customer packing goods area and put the 37 items into four separate bags.  She put one of each of the paid items in one of the four bags; spreading them out amongst the four bags.

4.  The appellant was intercepted after she left the premises by the security guard, PW1, who had been following her for some time.  The security guard recovered the items that the appellant had not paid for.  The police were informed and the appellant was arrested.  The appellant gave an interview under caution and it was admitted into evidence at Exhibits P4 and P4A.

5.  When the appellant was arrested at the scene and cautioned, she replied as follows, “if I had omitted to scan the QR codes of some of the goods, I will pay back the money by Octopus card”.

6.  Later in the video recorded interview when cautioned again, she added that she had taken some medication because she had started to feel unwell that afternoon. Whilst in the supermarket, she suddenly felt an increase in her heart rate, felt chest discomfort, had blurred vision, could not think straight and was in a daze like she was floating.  She wanted to leave immediately but there were many people queueing up to pay.  She decided to use the mobile app but became very confused during the payment process.  She has no idea what went wrong in the process and did not intend to steal anything.

7.  PW1 have been following the appellant around the supermarket for some time.  She saw the appellant place various items into her shopping cart and saw her use her phone to scan items continuously whilst she was shopping, but she was watching from behind and at a distance.

Defence Case

8.  The defence case was that the appellant was unwell that afternoon and took a variety of medication for what were the symptoms of a cold and body ache.  The appellant is a doctor with an income of approximately $100,000 a month.

9.  When she was in the supermarket, she experienced side effects of the medication and because of that, she must have made a mistake when scanning the items and did not do it properly.  She did not have any intention not to pay for the items she put in her shopping trolley.

Reasons for Conviction

10.  In convicting the appellant, the magistrate found the security guard, PW1 to be an honest and reliable witness.  On the other hand, magistrate found the evidence of the appellant to be incredible, untruthful and rejected it.

11.  The magistrate recognised and was fully aware that the crux of the case was the mens rea of the appellant, whether or not the appellant had a dishonest intent.  The actus reus was not an issue, the admitted facts, Exhibit P6, admit the actus reus.

12.  The magistrate set out his views and findings of the appellant’s evidence.  The appellant was represented at the trial as well is on appeal, although not by the same counsel.

13.  The magistrate found the appellant evasive when asked when she began to feel unwell inside the supermarket.  He found there to be serious discrepancies between what the appellant said during the trial and her statement made under caution.

14.  The magistrate did not believe her evidence that she was shopping for essentials when she chose so many items.  Items that included two packets of durian worth $518 and 2 packets of canned abalone worth $270.  He found her decision to continue to shop or even to shop when she was feeling so unwell hard to believe.

15.  The magistrate also took into account the number of nearly 40 items picked up with only 4 of very low value paid for and the fact that those four were then spread across the 4 bags. To conclude, the magistrate rejected the defence in its entirety.  He found that he could draw the irresistible inference the appellant had a deliberate and dishonest intent; her acts were deliberate and dishonest.

Grounds of Appeal

16.  The grounds of appeal can be summarised as follows:

1)  Ground 1, the learning magistrate erred in law in that he failed and/or omitted to give a full and proper good character direction;

2)  Ground 2, the learning magistrate erred in law in finding the appellant had a dishonest intent;

3)  Ground 3, the magistrate erred in concluding on the available evidence that the appellant had acted dishonestly;

4)  Ground 4, the learning magistrate erred in rejecting the appellant’s evidence;

5)  Ground 5, learning magistrate erred in law in failing to properly consider and evaluate the inherent probabilities and improbabilities of the appellant having the requisite mens rea to commit the offence.

Legal Principles

17.  A magistracy appeal is conducted by way of a “rehearing” on the evidence heard before the magistrate.  The legal principles concerning the approach to magistracy appeals include the principle that the appellate court will only depart from the lower courts finding of fact and assessment of the credibility of a witness where the finding of fact is plainly wrong.

18.  Moreover, the test in deciding whether the magistrate has erred in a manner that the appeal should be allowed is whether it is just for the conviction to be quashed.  Notwithstanding the absence of any error by the magistrate, the appellate court must still perform the statutory requirement of conducting a “rehearing”.  The court should examine closely whether on the evidence adduced the charge was proved beyond reasonable doubt, failing which the appeal should be allowed.

19.  Unless the magistrate is shown to have misquoted, or omitted, or failed to consider and analyse any significant aspect of the evidence, the conviction must stand.  Unless findings are shown to be unreasonable, illogical, or inherently improbable the conviction must stand.

20.  The credibility of witnesses in this case is central to the issue.  The trial magistrate enjoyed the advantage unlike the appellate court, of having seen and heard the witnesses giving evidence.  Therefore, the reliability and credibility of witnesses is within the ambit of the trial magistrate’s assessment.

Consideration

21.  In respect of Ground 1, the appellant suggests the magistrate only considered the propensity limb of a good character direction but did not address the credibility limb.  It is suggested the magistrate did not take into account the appellant’s good character in her favour when assessing the credibility of the appellant and her evidence.  Therefore, the magistrate erred in failing to give a proper direction on the credibility limb.

22.  I was referred to numerous authorities and cases by counsel for the appellant.  It was accepted by counsel that the Court of Final Appeal in HKSAR v Tang Siu Man [1998] 1 HKLRD 350 held by a majority that the Vye direction from the R v Vye [1993] 1 WLR 471 did not apply to Hong Kong; the Vye regime was not imposed on trial judges in Hong Kong.

23.  However, it was stressed that a good character direction is required in particular when credibility is the crux or main issue.  I was referred to R v Fong Shun Yuen [1995] 2 HKC 498 where the Court of First Instance found the magistrate erred when he addressed the issue of propensity only in a good character direction.

24.  However, in that case, the magistrate said this in dealing with the good character of that appellant, “it was also recorded that the appellant is a person of previous good character; as the appellant elected not give evidence, I took this into account only in regard to his propensity to commit the offences.”  Wong J found the magistrate clearly misdirected himself in only taking into account propensity.  He held “a direction should be given not only as to good character being relevant to credibility, where a defendant has testified or made pre-trial answers or statements, but also as to the likelihood of his having committed the offence.”

25.  In that case, the magistrate considered it necessary to direct himself only on propensity and not credibility.  This is not the situation in this case.

26.  This is quite different to the magistrate here who said at paragraph 16 of his Statement of Findings, “the Defendant has no criminal record.  As such, she has less propensity to commit crime.”  He refers to the appellant’s clear record again at paragraph 35 when he says, “defence also submitted that the Defendant is of clear record and a professional, earning $100,000 a month.  This relates to her propensity to commit crime.  However, based on the above analysis, it lends little assistance to the defence.”

27.  This was not a jury trial and although the magistrate did not specifically refer to the credibility limb, he was very much alive to the fact the appellant had a clear record and that he had to take it into consideration.  Paragraph 16 is a paragraph under the heading of “legal principles” identified by the magistrate.  He identifies it as a legal principle.  The magistrate is a professional judge and it has been said repeatedly one does not have to set out his entire thinking process.  I agree with the respondent that the magistrate was well aware of the appellant’s record and there is no merit in this ground.

28.  The 2^nd and 3^rd grounds are essentially the same and can be dealt with together.  The appellant has dealt with them together in submissions.  The appellant suggests that the magistrate was wrong to find the only reasonable and irresistible inference that could be drawn from the evidence was the appellant was dishonest.  It is suggested the magistrate only relied on the fact that out of 37 items put in her shopping trolley; the appellant only paid for 4 items, the lowest priced ones and then deliberately spread all 4 paid for items over 4 bags.

29.  It was submitted that the magistrate erred in concluding that the appellant was acting dishonestly because she deliberately did not pay for the other 33 items when there were other possible reasonable inferences to be drawn.  The magistrate was wrong to draw the adverse inference against the appellant.

30.  It is suggested the magistrate confused the element of actus reus and mens rea by drawing the inference from the fact that those 33 items had not been paid for; found to be dishonest from the act of non-payment.  It was further suggested that the magistrate did not refer to the two-stage approach from the authority in R v Ghosh (1982) QB 1053.

31.  The respondent submits the magistrate may not have specifically mentioned the Ghosh test, the well-known principle defining the element of dishonesty but it is clear from his Statement of Findings that he was aware of it and considered it before drawing any inference.  The magistrate as a professional judge was not required to set out his full thinking process, he was clearly alive to the definition of dishonesty.  There are certainly no signs to the contrary in his Statement of Findings.

32.  Moreover, he did not only convict the appellant on the basis that she paid for the lowest priced items and spread them over 4 different bags as suggested by the appellant.  He properly evaluated the appellant’s evidence and was entitled to reject the evidence, which led him to the drawing of that inference.  It was not isolated to one fact he found proved only.

33.  It is clear that the magistrate considered not only the objective limb but also the subjective limb of the test for dishonesty.  The magistrate considered the evidence that the appellant had taken medication, may have suffered side effects as a result and when she left the shop, she had no intention to steal the items not paid for.  The magistrate rejected the evidence, explained why in detail and was entitled to conclude that it was unreasonable.

34.  There is no merit in these two grounds and they both fail.

35.  I shall dispose of Ground 4 shortly.  I agree with the submissions from counsel for the respondent that the magistrate’s assessment of the appellant’s evidence was thorough, proper and reasonable as to why he rejected it.  The appellant’s suggestion the magistrate failed to take into account the overall evidence of the appellant is baseless.

36.  The magistrates assessment of the appellant’s credibility set out in full in the Statement of Findings was justified, reasonable and a finding of fact privy to the magistrate.  There is no merit in this fourth ground.

37.  In the last ground, it is said and the magistrate is accused of failing to properly consider and evaluate the inherent probabilities and improbabilities of the appellant having the required intention, mens rea to steal.  When there was only circumstantial evidence to prove the necessary intention, the magistrate should have and failed here to consider whether what the appellant said was true or might be true bearing in mind she is a professional, a doctor with a clear record.  If it might be true and here that must be the case, then the appellant should have been given the benefit of the doubt.

38.  It must be said that the ability to pay does not undermine the strength of the prosecution evidence to draw an inference of a dishonest intent. The magistrate has considered the appellants clear record.  When there is no direct evidence, there cannot be any requirement to consider the appellant’s evidence or clear record more carefully or consider it differently when an accused is a professional, high achiever or financially comfortable enough to pay for items taken.

39.  The magistrate knew that the appellant was a doctor and her income.  He specifically refers to this in paragraph 35 of his Statement of Findings.

40.  The magistrate considered it and found this background related to her propensity to commit crime but having rejected the appellant’s evidence; he found “it lends little assistance to the defence”.  There is no merit in this fifth ground.

Conclusion

41.  This appeal is a rehearing on the material before the magistrate. However, where credibility is a crucial issue, the appellate court should be very slow to interfere with findings of credibility.  I am not persuaded that the magistrate has erred in his assessment and rejection of the evidence of the appellant.  I am not persuaded he was plainly  wrong.  I am sure that inference of guilt was one that was properly drawn on the facts of this case.

42.  In the circumstances, the magistrate was justified and entitled to infer that there was dishonest intent; I would arrive at the same conclusion.

43.  I find no basis for disturbing this conviction.  This appeal is dismissed.