Case Detail

HKSAR v. NGAI KING YING

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69246-EN-2010-01-05

HKSAR v. NGAI KING YING

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HCMA 684/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 684 OF 2009

(ON APPEAL FROM ESCC 3036 OF 2009)

____________

BETWEEN

	HKSAR	Respondent
	and
	NGAI KING YING （魏琼英）	Appellant

____________

Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 5 January 2010

Date of Judgment: 5 January 2010

_______________

J U D G M E N T

_______________

1. Notwithstanding the Appellant’s bad record and the fact she committed the present offence while on probation, the probation officer has, for good reason in my view, recommended probation. The probation officer says as follows:

“18.  The offences committed by the Accused in the past 2 years reflected that she was in need of further professional assistance, especially the impact of the recent imprisonment, despite for 10 days, had brought a great trauma and impact on her, deepening her shame and guilt and had exacerbated her mental state.  In view of her remorse and motivation to reform herself through continuous psychiatric treatment and psychological intervention, coupled with the strong support from her husband, it is deemed that the Accused is deserved to give a further chance to be rehabilitated in an open setting.  Should Your Ladyship share the same view, I would like to recommend the Accused to be put on an 18-month Probation Order with the following condition:
i)  she shall be of good behaviour and keep the peace;
ii)  she shall keep in touch with the probation officer in accordance with such instructions as may from time to time be given by her probation officer; and in particular, that she shall, if the probation officer so requires, receive visits from the probation officer at her home;
iii)  she shall keep on attending regular psychiatric follow-up treatment and receive psychological service as directed by the probation officer;
iv)  she shall participate in any social, supportive or volunteer groups or programmes as directed by her probation officer.”

2. In the light of what Lord Scott of Foscote NPJ said in Lau Wai Wo v.HKSAR (2003) 6 HKCFAR 624 at pp 648B-I, in relation to binding over but applicable also to probation, I do not propose to impose a condition about being of good behaviour or about keeping the peace. If the Appellant were to offend again, she can be dealt with for the further offence or offences and also for the present offence if the further offending takes place during this probation period.

3. After pausing long as one must before making a fresh probation order when an offence has been committed during a probation period, I will, all things considered, allow the appeal against sentence to set aside the prison term imposed on the Appellant and substitute for it an order that she be put on probation for 18 months on conditions ii), iii) and iv) recommended by the probation officer.

4. The appeal is allowed in these terms.

	(V. Bokhary)
	Judge of the Court of First Instance High Court

Mr Giles Surman, instructed by Messrs Kent Tam & Co, for the Appellant

Ms Denise Chan, of the Department of Justice, for the Respondent

HCMA 684/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 684 OF 2009

(ON APPEAL FROM ESCC 3036 OF 2009)

____________

BETWEEN

	HKSAR	Respondent
	and
	NGAI KING YING（魏琼英）	Appellant

____________

Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 9 December 2009

Date of Judgment: 9 December 2009

_______________

J U D G M E N T

_______________

1. The Appellant was convicted after trial in the Magistrates’ Court on a charge of theft and sentenced to six weeks’ imprisonment. She now appeals against conviction and sentence.

2. Four perfected grounds of appeal against conviction have been filed. Ground 1 is that the conviction was against the weight of the evidence. In my view, it was not. There was ample evidence on which to convict. Ground 1 fails.

3. Ground 2 reads:

“The Magistrate effectively directed himself to consider whether PW1 had a motive for lying, instead of emphasising that the real issue was whether he was telling the truth.”

PW1 was the security officer of the supermarket from which the Appellant was convicted of stealing. The paragraph in the Magistrate’s Statement of Findings in which he referred to the absence of any motive for lying is para. 4 which reads:

“I bear in mind the Prosecution has the burden of proof and the requisite standard. Although PW1 several times had not grasped the focus of questions thereby needing recanvassing before he could clarify his evidence, I find both prosecution witnesses honest and reliable. There is no motive for anyone to tell lies in order to frame up the Deft.”

I am satisfied that the Magistrate had directed his mind to whether PW1 was honest and reliable. Ground 2 fails.

4. Ground 3 reads:

“The Magistrate did or did appear, to have misunderstood the evidence as to the layout & operation of the Citysuper shop. Interalia the evidence in respect of: the cash registers (where the queues formed, from where they could be seen); which cash registers were operating at the material time; and then base his finding of guilt in part or in whole on this misinterpretation.”

I see no basis on which to attribute any such misunderstanding to the Magistrate. A floor plan and photographs were produced, and the evidence was given with reference to them. Ground 3 fails.

5. Ground 4 reads:

“Lurking doubt.  Given that:
(i)  the Appellant changed her medication from April 2009 onward
(ii)  the Appellant had, immediately prior to the offence resumed taking her sleeping pills in conjunction with the new pharmaceutical regime, and
(iii)  the store layout was deliberately confusing
must in all the circumstances beg the rhetorical subjective question: ‘should the matter stand as it is?’”

I do not feel any lurking doubt as to the correctness of this conviction. Ground 4 fails.

6. All the grounds of appeal against conviction having failed, the appeal against conviction is dismissed.

7. As to the appeal against sentence, I send for a probation report on the Appellant, doing so in exercise of my power under section 119(1)(d) of the Magistrates Ordinance, Cap. 227, to “exercise any power which the magistrate might have exercised”. I adjourn the hearing of the appeal against sentence pending receipt of such report. I will hear further submission from both sides on the appeal against sentence after the report now sent for has been considered.

(V. Bokhary)
Judge of the Court of First Instance
High Court

Mr Giles Surman, instructed by Messrs Kent Tam & Co, for the Appellant

Ms Denise Chan, of the Department of Justice, for the Respondent