IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MAGISTRACY APPEAL NO.667 OF 2006
(On Appeal From TWCC 737 OF 2006)
Before : Deputy High Court Judge M. Poon in Court
Date of Hearing : 21 September 2006
Date of Judgment : 21 September 2006
J U D G M E N T
1. The appellant was convicted after trial of one charge of theft, contrary to s. 10 of the Theft Ordinance, Cap. 210 and was fined $1,500. She now appeals her conviction.
2. This was a simple and straightforward case. The anti-theft alarm of the supermarket went off when the appellant proceeded to leavethe shop after she had paid for some goods at the cashier. The cashier who served her earlier stopped her and asked if she had anythingthat was not paid for. She was later escorted into the office where she was asked to show the contents of her handbag. The appellanttook out a bottle of XO sauce. Later a police officer arrived. On being cautioned, she said she was careless to put that into herhandbag. That was the gist of the prosecution evidence.
3. The appellant elected not to give or call evidence.
Grounds of appeal
4. Various grounds were advanced by Mr Davies on behalf of the appellant :
5. In reply, Mr Gavin Shiu for the respondent submitted that it was not disputed at the trial that the appellant was the one arrestedand cautioned by PW2, the police officer. The so-called “dock identification” by the cashier was no more than evidence confirmingthat the appellant was the one so arrested and was rightly admitted. Mr Shiu relied on the case of HKSAR v. Lau Man Shing and Another  3 HKC 645.
6. Mr Shiu further submitted that there was no question of hearsay evidence in relation to the working order of magnetic security tagsand the alarm system in the present case : the cashier had given direct evidence on that. Further, the findings that the XO sauceseized by the officer was the one taken out from the appellant’s bag was an unimpeachable finding of fact, and this case does notstand or fall with or without the production of an exhibit.
7. Mr Shiu further submitted that s. 27 of the Magistrates Ordinance, Cap. 227 was a mandatory provision, and in any event, the ownership of the stolen property was not a material averment. The appellantwas not prejudiced by such amendment.
8. Let me say this on the outset. This is a simple shoplifting case where matters had gone totally out of hand. Issues were takenwholly unrealistically as to practically every point which should never have to be. Counsel who appeared for the appellant at thetrial as well as before me today had confused quantity with quality. Regrettably, however, the magistrate allowed him to get awaywith this and had fallen into an understandable error, by entertaining wholly unmeritorious submissions and dealing with such atlength by production of a Statement of Findings of no less than 15 closely typed pages, when this was a case where evidence was allone way. Despite the fact that counsel had taken nearly every point, he did not do the most sensible thing our adversarial systemcalls for : to call his client into the witness box to rebut the prima facie case which undoubtedly existed. Of course in some cases, the prosecution case alone may contain the seeds of their own destruction. But common sense and experience tells one that those are extremely rare and the present case is certainly not one of those.
9. The evidence in this case is overwhelming. If only counsel has studied his law on evidence well, he should be in a position to realizehow futile it was to take issues on identification; on the working order of the anti-theft alarm; on the chain of evidence relatingto the stolen property in the face of what was said by his client to the police officer under caution, the voluntariness of whichwas not challenged at the trial.
10. It is clear from the contents of what was said by the appellant that she knew perfectly well what the allegation against her was. The evidence is that she took out the bottle of XO sauce from her handbag. There could be no misunderstanding as to what item shewas alleged to have taken without payment. She admitted unequivocally to have put that into her handbag, although she then attemptedto explain that she was careless and she did think of making payment. What was said under caution was plainly a mixed statementand with the appellant electing not to give evidence, the magistrate, in considering the whole of that statement in deciding wherethe truth lies, was perfectly entitled to place minimum weight on the exculpatory parts alleging either a mistake or forgetfulnesswhilst attaching full weight on the incriminating parts.
11. With the state of the prosecution evidence as it is, the only real issue was whether the appellant had the requisite mens rea for the offence or was she merely forgetful. Identification should never have been an issue. By the appellant’s admission, shehad already placed herself at the scene. Unfortunately, Mr Davies even ventured to submit before me at length in paragraphs 12 and14 of his written submission that :
12. In view of the evidence in this case, in particular, the incriminating parts of what was said by the appellant under caution, thepoints taken by Mr Davies are not matters of real significance. This case does not depend wholly or substantially on the correctnessof the identification of the accused by the cashier that requires even a Turnbull warning. The identification in court was no more than confirmatory evidence. Ground 1 fails.
13. I do not propose to deal with Ground 2.
14. Ground 3 is wholly misconceived. It seems that Mr Davies, by taking issue with the chain of evidence relating to the exhibit inthis case, was labouring under a wrong impression to equate the XO sauce in this case with exhibits such as dangerous drugs or fingerprintswhere result of forensic examination has a bearing in the case. That is why the chain of evidence relating to handling of the exhibitsin cases like dangerous drugs is important in order to show that those exhibits were not tampered with prior to forensic examination. Applying common sense as the best guide here, even if the exhibit in this case had not been retrieved, vanished, or even accidentallydestroyed, this would not have any effect on the case by any margin. Any failure to produce the exhibit in this case would not haveany true effect on the strength of the prosecution case.
15. I now turn to the last ground relating to the amendment of the particulars. Counsel only submitted that the prosecution failed toestablish ownership of the XO sauce as stated in the particulars of the charge for the first time in the final submission. I couldsee that this stance was a tactical one : whilst he could have made a no case submission on the basis that an important element ofthe charge, namely, ownership, was lacking, he deliberately refrained from doing so and saving what he thought, albeit unmeritoriously,was his most powerful weapon until final submission. However, “A successful objection on technicalities alone may be all thatis required in a trial but in making such a submission, a defendant would risk a possible reformulation of the charge to remedy thedefects complained of, for instance, by amendment.” : R. v. Lau Yiu Kwan, CACC394/1996. An information which is defective may be cured by amendment. According to s. 27 of the Magistrates Ordinance, Cap. 227, an amendment must be made even if the defect is material so long as there is no injustice or so long as any injustice which might otherwise arise canbe met by an adjournment or an order for costs or by leave to recall and further examine witnesses or call other witnesses.
16. Section 27 is a mandatory provision : HKSAR v. Chan Wai Chung, FAMC20/2004. The mistake relating to the owner of the XO sauce was not one that was incapable of being cured by amendment. Thetrue owner of that XO sauce, be it A.S. Watsons Ltd, or Park’n shop, or “the owner of Park’n shop” was not a material averment. The prosecution case has always been that the XO sauce which was in the appellant’s handbag, was not property belonging to herbut was property of the supermarket that had not been paid for. It had never been her defence that it was property belonging toher, or property that she had paid for. It could not be said that the appellant had been misled as to what the prosecution caseagainst her was. The magistrate was entirely correct to amend the particulars of the charge.
17. I am indeed perplexed to find that the magistrate entertained a submission by Mr Davies objecting to the amendment on the basis thatan adjournment was necessary and the defendant would incur costs which well exceeded the maximum of $5,000 provided under s. 27(3)(d) of the Magistrates Ordinance, Cap. 227, thus causing injustice. Again common sense dictates : if that submission is a sound one, it would necessarily mean thatno amendment could ever be granted if a defendant instructs a senior junior counsel or senior counsel the fees of whom exceed $5,000. This submission is fallacious and should never fall to be considered.
18. This appeal is devoid of any merits and is dismissed and I affirm the conviction. By way of observation, it is a pity that failingto admit evidence where they should be, asking mostly irrelevant questions, not calling the defendant to the witness box, and aboveall, failing to see the woods for the trees, has become, unfortunately, not an uncommon feature of advocacy in the Magistracies.
Mr Gavin Shiu, SADPP and Miss Sezen Chong, GC of the Department of Justice, for HKSAR
Mr Oliver H. Davies, instructed by Messrs Christopher K.Y. Wong, for the Appellant