HKSAR v. MAN CHING HA

HCMA 356/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 356 OF 2006

(ON APPEAL FROM ESCC NO. 3502 OF 2005)

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BETWEEN

  HKSAR Respondent
  and  
  Man Ching-ha Appellant

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 20 December 2006

Date of Judgment: 20 December 2006

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J U D G M E N T

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1. The Appellant was charged with one charge of theft of a library book and after trial she was convicted.

2. The facts of the case is that as she was walking out of the library the safety alarm sounded. She was asked to walk through theanti-theft alarm again and it sounded again. So after that, the Defendant then took out a book and that book was subsequently producedas an exhibit and it was a book of cake making recipes that was without a cover.

3. PW2 who was a security guard at the library then pointed the Appellant in the direction of a counter to undergo the borrowing andthe magnetising process, but he saw that the Appellant went in another direction so he went up to the Appellant, and, took her tothe counter. At the counter, there was a verbal exchange between the Appellant and the person at the counter. PW2 said that atthe counter, the Appellant had said that she was not going to borrow the book because it was damaged.

4. PW3 was a librarian and he merely gave evidence that the anti-theft bar code was in the inner page of the book and not in the cover. It was also given in evidence that the Defendant had been a holder of a library card for many years.

5. Upon arrest by the police, the Defendant had told the police officer that the book had no cover. The Appellant subsequently gaveevidence and she said that she was in the library and she was looking through the books. She noticed that the book cover had beendetached and she did not tear the cover from the book and she read the book for a few minutes she received a phone call from herfriend and she decided to meet the friend in 20 minutes.

6. The Appellant also said that when she was reading the book, she found that it was very inconvenient to read it with the detachedcover so she put the cover on a nearby shelf but she kept hold of the book because she had decided to borrow it from the library. After talking to her friend, she went to the washroom and had causally put the book into her bag. When she left the washroom, sheforgot to check the book out and that was when she passed the anti-theft device and it sounded.

7. The Appellant said that it was only when she was approached by PW2 that she remembered about the book in her shoulder bag.

8. The Appellant had denied any intention to steal the book.

9. The learned Magistrate, after hearing the evidence and upon analysis of the case, believed that all the prosecution witnesses werehonest and reliable.

10. The learned Magistrate found the defence evidence to be inherently improbable and the learned Magistrate in his oral reasons forverdict said this:

“From the evidence I accept, I find the one clear inference to draw is that the defendant was responsible for detaching the bookfrom its cover within the library, placing the coverless book into her shoulder bag, and walking from the library without going throughany purchase or borrowing process.

These actions of the defendant were intentional and dishonest, and her intention was to remove the book from the library undetectedwithout paying or borrowing in the usual manner of taking out a library book”

Subsequently, the learned Magistrate convicted the Defendant.

11. It is clear from a reading of the evidence that there is no evidence to support the inference that it was the Defendant who wasresponsible for detaching the book from its cover within the library. No evidence was ever given by any of the prosecution witnessesabout what the library would have done if they had received the book in a condition where the cover had been detached, would it bereplaced on the shelf or would it be considered damage and therefore would not be replaced on the shelf. There was also no evidenceas to the likelihood of other person coming into the library during the week when the book had been returned and was able to thedamage the book prior to the Defendant’s acquisition of it.

12. It is, of course, as Ms Leung said not important to the finding of theft for the learned Magistrate to make a finding as to whoactually detached the book from its cover.

13. Unfortunately in this case, the learned Magistrate had considered it to be an action (i.e. detaching the cover) which gave him theinference at the end of the day that the Defendant acted intentionally and dishonestly. Unfortunately this inference that the Defendantwas responsible for detaching the book cover is not supported by any evidence.

14. Under those circumstances, therefore I cannot find that the conviction was safe and satisfactory, so the appeal is allowed. Theconviction of the Defendant is quashed and the paid compensation of $500 to be returned.

  (E Toh)
Deputy High Court Judge

Ms Rosaline Leung, Senior Government Counsel, for HKSAR

Mr Acton-Bond, instructed by Messrs Simon C W Yung & Co, for the Appellant