R. v. KWOK HING LEE, HELEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 799 of 1996

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J U D G M E N T

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1. The appellant was convicted after trial of theft. She was conditionally discharged and put on a bond for 12 months in the sum of $1,000 and she was also ordered to pay $1,000 costs. She now appeals against conviction.

2. The prosecution case was this. The appellant was seen by PW1, a plainclothes security officer with Mannings, to stand near a rack or counter displaying cosmetics or related items. It was said that she looked around and was seen to pick up a pair of Revlon scissors from the rack, held them in her left hand, turned round and put the item into a red plastic bag which she was holding. She was seen to walk to another rack displaying other items including shampoo, which was near the entrance or exit. She stayed there for a minute and then walked towards the exit. The cashier counter was, according to the sketch, just next to the exit. As she went through or tried to go through the doorway, the anti-theft alarm was activated. According to PW1, the appellant was seen to stop, turn round and take out the pair of scissors. PW1 approached her and, according to him, the appellant said "sorry, now I will take it out and buy it". She was taken to the Police Station at a later stage and a cautioned statement was taken from her. In that statement, she said she only realised the scissors had not been paid for when she heard the alarm.

3. The appellant gave evidence at the trial. She was a teacher. She played violin before she went to the shop to buy things, and after the shopping she would go and play piano again and take part in a competition the following day. At the material time, she was carrying two plastic bags together with a wallet in her left hand. She admitted that she had taken the pair of scissors from the rack but said that since her hands were tired, she put the item in the red plastic bag. She said that she went to another rack displaying shampoo and looked for a while, decided not to buy and started to walk out. When the alarm sounded, she looked at the bag and then realised that the item had not been paid for. She said she returned to the cashier counter and tried to pay, but she was stopped by PW1. She denied having said what the witness said she had.

4. The learned Magistrate convicted her of the charge accepting the evidence of PW1 and rejecting her evidence. During the course of her trial, she had been cross-examined at length on why she held the scissors in her left hand, and then her right hand, and why she put them into her bag. In my view, this part of the cross-examination is not only relevant to her credibility but may also go to the issue of dishonesty.

5. A number of reasons were given by the learned magistrate, I think about three to four, to justify rejecting the appellant's evidence. The first one was that when the appellant was interviewed by the police, she did not mention that she put the item into her bag because her hands were tired. I note that the cautioned statement was in fact a record of only one question and one answer and it was a long answer given by the appellant. She was then obviously very anxious to explain what happened and that she had forgotten to pay. I do not think it should be held against her for not disclosing what only came out during cross-examination. In any event, she was not cross-examined on why that was not mentioned in the cautioned statement. And she was not given the opportunity to explain that omission in the cautioned statement.

6. The next reason given by the learned magistrate was that at one stage the appellant said that she intended to look for other items, and at another stage she said she intended to go out, but it was only on the way out that she went to another rack. The learned Magistrate thought that that was an inconsistency.

7. When I looked at the sketch drawn either by the police or the store detective, it appears that the rack where the pair of scissors was placed was on one side of the shop while the rack where the shampoo and other items were put was on the other side, with the cashier counter in middle and the two exits on the left and right. That is to say, she went to the rack displaying shampoo not on the way out. There are, of course, and I think counsel for the appellant quite rightly pointed it out to me, other pieces of evidence she had given to the effect that she wanted to look for other items. In my view, it is not unusual for a shopper to go from rack to rack and to have changed his or her mind whenever he or she sees something more attractive on the way. I do not think that can be described as an inconsistency.

8. Another reason given was that in cross-examination she said that she did not put the wallet into the plastic bag because she did not feel tired before she took the scissors, but during re-examination, she said that it was the violin practice which made her hand feel tired. The learned Magistrate thought that was an inconsistency.

9. In my view, an answer given by a witness must be considered in the light of the question and in the circumstances. The appellant had indeed earlier on in her evidence mentioned about having played violin and was tired. So I do not think it is fair that her answer in one place should be taken out of context as being inconsistent with her answer in another place.

10. One final reason given by the learned Magistrate was that the appellant said she went to the shop intending to buy a pair of scissors and yet when leaving the store a minute or two after putting the scissors into her bag, she forgot about the scissors. Counsel criticised that this was not a reason for rejecting her evidence I think this criticism may have some strength. The important thing is there is clear evidence that after she had picked up the pair of scissors and put it into her bag, she did go to another rack. She was attracted by other items and went there and that rack was at the other side of the shop. This might only take a few minutes, probably one or two. But to imply that that is unlikely or impossible was probably going a bit too far.

11. Finally, the learned Magistrate said that having accepted the evidence of PW1 and rejected the appellant's evidence, he was also satisfied that the prosecution had proved all the elements of the charge beyond reasonable doubt. Was he saying that the element of dishonesty, which is the crucial element in this type of case, could be inferred from the evidence, or was he saying that because he did not believe the evidence of the appellant, the element of dishonesty must inevitably follow ?

12. At the end of the day, I am not sure that the reasons given by the learned Magistrate for rejecting the appellant's evidence were sufficient or that there were material inconsistencies. It appears to me that there is a lurking doubt as to whether her evidence had been fairly and properly assessed. That being the case, I am not free from doubt that the conviction was safe or satisfactory. In the circumstances, I would allow the appeal, quash the conviction and set aside the sentence.