R. v. NG SIU SHAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 532 OF 1996

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J U D G M E N T

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1. This is Magistracy Appeal number 532 of 1996. The appellant appeared before a magistrate and was convicted on 3rd April 1996 of one count of Theft. She was fined the sum of $2,000.00

2. There are a number of grounds of appeal but only one causes me concern. The evidence before the learned magistrate was that at about 4.40 on 16th December 1995 inside the transit or departure area of Kai Tak Airport, in a duty free shop, known as Duty Free Shoppers Hong Kong Limited, the first witness for the prosecution observed the appellant near a leather goods rack. She was seen to pick up a small wallet in her right hand and tuck it through the coat of her daughter who was the 2nd accused in that trial, under her armpit. The two then left the shop.

3. The witness for the prosecution followed them. The two separated. The young girl speeded up and disposed of the wallet by throwing it in a rubbish bin. The young girl was apprehended and PW1 followed the mother and stopped her some 20 to 30 metres away at Gate 25.

4. It was the evidence of PW1 that she saw in a plastic bag on the trolley a further item which she believed to have come from Duty Free Shoppers Hong Kong Limited and she requested that she should search the bag. The bag was unpacked by the appellant and in it were found a handbag, a cosmetic bag and three watches, all of which had been stolen from Duty Free Shoppers Hong Kong Limited.

5. The two accused were taken first to Duty Free Shoppers Hong Kong Limited, where a check was made as to whether or not the goods had been stolen there and then on to the police post. There the 2nd accused gave a statement to the police in which she admitted the theft of the items, all of the items, but exonerated her mother and said that her mother had no knowledge of the theft.

6. She was cross-examined by the magistrate as to her motivation and what she was doing with the stolen items, and to say the least, was not a convincing witness in respect of that.

7. I must remind myself that there is no proviso which can be applied in respect of appeals against magistrates' decision. Unlike the Court of Appeal, where evidence is strong before the Court of Appeal, notwithstanding an error on the part of the court below, the court can nonetheless uphold the conviction because the weight of the evidence is such that it is in the interests of justice to do so. I have no power in respect of a proviso in this jurisdiction.

8. If I am to find that the magistrate has been flawed in his approach to evidence, and that flaw is such that on the face of it the conviction ought not stand, I cannot apply a proviso and say that by virtue of the strength of the rest of the evidence, the conviction should stand.

9. In respect of this matter, the appellant need prove nothing. The onus was on the prosecution to prove the guilt of the accused. The accused could remain silent or rely upon such evidence as was raised by the defence to throw a doubt on the case for the prosecution.

10. In this case, the 2nd accused gave evidence. She adopted what she had said in her statement to the police and purported to exonerate her mother. The learned magistrate, if he believed that evidence, would have to acquit the appellant because it was cogent evidence which threw doubt on the case for the prosecution that the appellant was involved in the theft of these items and it was necessary that the prosecution prove that this was a joint enterprise.

11. The learned magistrate in considering the evidence of the 2nd accused took into account that during the time that they were in custody of the first prosecution witness, having been apprehended outside Gate 25, until the statement was made by the 2nd accused, was a period from 4.40 p.m. to 17.25 p.m. or 5.25 p.m. that same day. He said in his findings,

"Hence, they must have spent a period of time at Duty Free Shoppers Hong Kong Limited waiting for the arrival of the police and during this time they were not separated and they could have conferred."

12. This was a major consideration in the mind of the magistrate and upon that consideration he found the 2nd accused at trial not to be a credible witness and rejected her evidence, both that the wallet had been handed to her by her mother and received by her hand and that her mother was unknowing as to the theft.

13. It is trite law that where more than one reasonable inference can be drawn from a set of circumstances, the inference that must be drawn must be in favour of an accused. In this case, the evidence is wholly silent as to the events that took place between the apprehension of the accused at 4.40 p.m. and the statement made by the daughter at 5.25 p.m. The only hint comes from the evidence of PW1 that they did return to Duty Free Shoppers Hong Kong Limited to ascertain that the goods were stolen.

14. Regrettably, the learned magistrate has speculated that the accused were not separated at that time and could have conferred. His assessment of the credit of the 2nd accused has been flawed. That evidence could have raised a doubt in respect of the case of the appellant and the appeal is allowed. The conviction is quashed and the fine is set aside.