R. v. WONG CHING MAN and Another

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 942 OF 1996

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J U D G M E N T

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1. The appellants were convicted on 28th June 1996 of theft. The facts, which were basically not in dispute were that on 26th February 1996 both appellants were working for the Pricerite Store at Yuen Long. In the afternoon of that day, the 1st appellant went to the 3rd floor of those premises with her mother and there tested a heater for purchase, a similar heater to the one she had purchased on 22nd February. A purchase was to be made of that heater together with a table. Both items were wrapped and tied and the 1st and 2nd appellants carried them from the 3rd floor to the ground floor where two cashier points were situated, one of those was manned by the 2nd appellant as her normal place of duty, and on that particular day, she was assisted by a trainee whom she was training in the duties of cashier. The other cashier point was manned by the witness, who was PW2.

2. The best description of where the goods were taken when they reached the ground floor comes from DW2, i.e. the trainee cashier and was not contradicted by any other evidence nor in cross-examination. Her evidence was that "The items were brought down; there were two items, they were put on the left side of the cashier counter, mine." This indicates not that they had been taken to a point distant from the cashier station but were put along side it. Later, the two parcels, one containing the heater and one containing the table, were found to be missing. These are facts which were basically not in dispute. It was the evidence of PW2 that the goods were taken from their point at the second cashier terminal out of the store by the 1st and 2nd appellants. It is an element of the offence that the goods be appropriated and that evidence was in dispute. The only evidence of the appropriation came from PW2. It was necessary, therefore, that the magistrate consider the evidence of PW2 with care, both as to the credit of that witness and as to the facts to which she testified.

3. It was apparent at the end of her evidence that a number of inconsistencies within her own evidence existed and in contradiction with that of PW1. Initially, PW2 said that on arrival at her cashier point at 11:30 in the morning of that day, she found a heater in a box tied up adjacent to the terminal operated by the 2nd appellant. She said that in the afternoon, a table was brought to join that parcel. Later, when reminded of her statement, she corrected the order in which she said the goods appeared and said that the table came first and the heater came second. Later, she confirmed her evidence that the first parcel, i.e. the table on her later evidence, had been present by the terminal at 11:30 in the morning when she came on duty.

4. This inconsistency in time was dealt with by the learned magistrate, both in his extemporary findings given at the end of the trial and in his reasons, and were categorised as minor inconsistencies and imprecision on time and not really material. What the learned magistrate did not address his mind to was the position of the evidence given by PW2 that not only was the table present when she came on duty at 11:30 in the morning, but that she checked the bar coding on the box containing the table as she tested her terminal when she started work and that was how she knew that the contents of the box was a table. Further, he did not deal with the inconsistency between the evidence of PW1 and PW2. PW1 having said that the table did not leave the 3rd floor of the premises until some time after 2:00 p.m. on that day, making it impossible for the table to be along side either terminal on the ground floor at 11:30 a.m. that day.

5. Given that an essential element of the offence was the appropriation of the goods and that that evidence is testified to only by one witness, the credit of that witness becomes of particular value to the case for the prosecution. It is unfortunate that the magistrate did not address his mind directly to the nature and quality of those inconsistencies and contradiction so as to adequately resolve them to demonstrate the safety of relying upon the evidence of PW2.

6. A second matter causes me concern. In her evidence, the 2nd witness for the defence said that she was the trainee cashier on that particular day; she said that the items were placed along side the cashier terminal where she was working; she was asked in re-examination :

"Q : Would have noticed if someone took away and said probably what mean?

A : If there were many customers, I would not have noticed. But if removed by staff would have noticed, had green uniform."

The substance of her evidence was that if it had been removed by a customer, then she would not have noticed it happening, but if it had been removed by a member of staff who had a green uniform, then she would have noticed the items being taken.

7. In his extemporary reasons, the magistrate dealt with this in this way: "She probably wouldn't notice items going. She would notice if staff did remove - had green uniform." Other than that reference to the evidence, he did not deal with it. In his written reasons, he did not deal with that aspect of the evidence at all.

8. Given that this evidence went directly to the issue of appropriation, it is appropriate that it be dealt with. As I have said in other matters, I do not have a proviso which can be exercised in respect of this jurisdiction. That being so, it is not open to me to consider, on the balance of the evidence, that a conviction ought to have been entered. The magistrate's reasoning in respect of his analysis of the evidence of PW2 and his failure to consider in his Statement of Findings the evidence of DW2 that she did not see the goods taken were matters which must lead to the granting of this appeal. The appeal is granted, the sentences set aside and the conviction is quashed.