LAM PUI SHAN v. HKSAR

FACC000008/1999

FACC No. 8 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 1999 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 1135 OF 1998)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. This is the judgment of the Court which I deliver at the invitation of the president Mr Justice Litton PJ. The case is a unique one. Hopefully there will never be another case like it. In May 1998 this appellant was arrested on suspicion of theft. She was then in her mid-twenties and of unblemished character. Her arrest resulted from a report made to the police by her former employer, a Madam Chung. The appellant used to work as a salesperson at Madam Chung's shop in Central. There is a suggestion that the shop had a cash flow problem. The appellant was dismissed. And there was a dispute over whether she was owed some outstanding wages. It was while this dispute was going on that Madam Chung made her report to the police. In that report she alleged that the appellant had committed a theft while working at the shop about two months earlier.

2. More particularly, the allegation was that on 23 March 1998 the appellant had stolen $232 being the proceeds of a sale which she had made to a customer at the shop. A charge of theft based on that allegation was brought against the appellant. She was tried before A.B. bin Wahab Esq in the Magistrate's Court at Western. On 20 October 1998 the magistrate convicted her, sentenced her to one month's imprisonment suspended for one year, ordered her to pay $232 compensation to Madam Chung and ordered her to pay $500 costs.

3. The appellant appealed against conviction to the High Court. On 11 March 1999 Pang J dismissed her appeal.

4. She then sought leave to appeal to this Court. Her application for such leave first came before the Appeal Committee on 18 May 1999. She was then in person even though she had been legally represented in the courts below. The Appeal Committee adjourned so that legal representation could be arranged for her, and also so that the magistrate's notes could be translated and transcribed. At the resumed hearing on 4 October 1999 the Appeal Committee granted the appellant leave to appeal to the Court of Final Appeal on the

"substantial and grave injustice" limb of s.32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

5. In this Court we have had the assistance of printed cases prepared by counsel. None of the counsel appearing before us had appeared in either of the courts below.

6. There is no dispute that at the shop on 23 March 1998 the appellant sold $232 worth of goods to a customer, received the price in cash and put the cash in the till. Nor is there any dispute that the appellant discarded the duplicate of the sales invoice. She said that she discarded it in accordance with the practice which she had been instructed to follow.

7. No computer entry of the sale was found. But there was evidence in the form of a video-recording suggesting that there may have been a failure of the electricity supply to the computer. And a prosecution witness said that such failure could have erased the computer entry of the sale.

8. Ultimately the prosecution's case rested on its contention that the cash in the till came to $1,000 before the sale and still came to only $1,000 rather $1,232 after the sale.

9. As to that, I can do no better than to quote from the printed case lodged by the prosecution. Naturally the prosecution never has any interest in obtaining or retaining a doubtful conviction. Its interest is confined to assisting the courts to do justice. In exemplary conformity with that principle, counsel for the prosecution have not sought to support the appellant's conviction. Instead they have helpfully summarised why the conviction cannot stand. This summary is to be found in the last two paragraphs of the prosecution's printed case, which read:

10. Even if the appellant's assumption that there had been $1,000 in the till before the sale is treated as an admission, it is still of no real evidential value. This is because she had no knowledge on which to make such an admission. As Lord Hodson said when delivering the Privy Council's advice in Comptroller of Customs v. Western Lectric Co. Ltd [1966] AC 367 at p.371E: "If a man admits something of which he knows nothing it is of no real evidential value".

11. The appellant's conviction was reached in the absence of evidence. It cannot stand. The appeal is allowed so as to quash the appellant's conviction and to set aside her sentence and the compensation and costs orders made against her.

Representation: