By Colin Cohen

Hong Kong, 2 May 2024: In a landmark judgment that sees a housewife win her legal battle to overturn a conviction for shoplifting, the Court of Final Appeal has given clear direction on what a judge must consider when hearing an appeal arising from the Magistrates’ Court.

The top court concluded the judge “is always obliged to re-assess the evidence upon which the conviction was based when rehearing the matter” and “must come to his or her own conclusion”. In delivering its ruling, the CFA declared that with regard to the highlighted case, the Court of First Instance judge had failed to conduct a proper rehearing.

The appellant, a 41-year-old mother-of-two, was arrested on the evening of 14 July 2021 and charged with theft of items worth HK$648 from a grocery shop in Causeway Bay. The court was told she placed the goods in a shopping trolley, then went to a separate bakery concession to purchase bread. After paying for the bread, she put the items from the trolley into her bags and left without paying for them, at which point she was intercepted by security staff.

Interviewed by police, the woman said she was in a rush to go home for dinner and mistakenly thought she had paid for the groceries. She ascribed the incident to momentary oversight and insisted she had no intention to steal.

At her trial in Magistrates’ Court, she gave evidence that she forgot to pay due to three specific matters which had distracted her: she was tired and dizzy from her first dose of Covid-19 vaccine two days earlier; the day before her shop visit, she had attended her daughter’s school and was dismayed to learn that the nine-year-old would need to repeat a year due to poor grades; and she was visiting the shop having just supervised her mother’s discharge from hospital following minor surgery. These facts were agreed by the prosecution.

The magistrate did not believe the appellant’s testimony and convicted her. He noted she did not mention the matters regarding the vaccine, her daughter and mother during her police interview. She was sentenced to 12 months’ probation.

The appellant appealed to the Court of First Instance under section 113 of the Magistrates Ordinance (Cap 227). In dismissing the appeal, the judge held that the magistrate’s rejection of her explanation for not paying was “a conclusion he [ie the magistrate] could reach”. The judge also stated he would not intervene with the magistrate’s findings of fact unless they were “plainly wrong, illogical, or inherently improbable”.

The issue brought before the CFA was: “On an appeal to the Court of First Instance against conviction by a magistrate pursuant to section 113 of the Magistrates Ordinance, in what circumstances is the court bound to re-assess the evidence upon which the conviction was based and when is the court justified in overturning such conviction on the basis of its own view of the available evidence?”

The CFA highlighted that such an appeal must be conducted by a rehearing of the evidence and that the judge must be satisfied that the appellant’s guilt has been proven beyond reasonable doubt. It further noted that the Court of Appeal in a civil appeal will only depart from the trial court’s finding of fact or credibility if it is “plainly wrong”. However, there was no reason to adopt this test to an appeal under section 113 of the Magistrates Ordinance given the differences in the nature, context and applicable burden of proof. Further, the “plainly wrong” test is inconsistent with the judge’s duty to come to his or her own conclusion on whether the appellant’s guilt is proven beyond reasonable doubt.

The CFA reiterated the principles to be applied in an appeal under section 113 of the Magistrates’ Ordinance, including the following:

• Error by the magistrate, especially an error constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.
• Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the court to be satisfied that guilt has been proven beyond reasonable doubt, failing which the appeal must be allowed.

The CFA declared there was no evidence proving beyond reasonable doubt that the appellant deliberately stole the groceries. It also noted she was a person of clear record who had no apparent reason to engage in shoplifting. Accordingly, it unanimously allowed the appeal and quashed her conviction.

Senior Partner in BC&C since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. He can be contacted at colin@boasecohencollins.com.