R. v. YU KIM HUNG and Anothers

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.764 OF 1996

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J U D G M E N T

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1. This is an appeal against conviction. It is a shoplifting case. The appellants are husband and wife and I shall refer to them as they were at trial, as the 1st and the 2nd defendants. The allegation was that on 11th April 1996 at the Yaohan Store in Shatin, they together stole one pack of the food durian, two T-shirts, and a pair of "Reebok" shoes.

2. The version of the events, according to the defendants in the main prosecution witness, could hardly have been more different.

3. The main prosecution witness was an employee of the store, a plainclothes member of the security staff. The shop is set on two levels. His evidence was that at 8:15 pm on the evening in question he was on duty at the store. He saw the defendants at the supermarket at level 1, beside the food store, looking at the food. The 2nd defendant looked around in a manner that drew his suspicion. Then she picked up a box of durian. Her husband was carrying a rucksack on his shoulders, and in his right hand a paper bag with the store logo on it. She put the box of durian in the backpack and then, according to his evidence, they left the supermarket and walked past the till where there was a cashier and did not pay for the food.

4. Then they went by escalator up to the second level. There they arrived at the section of the store which sells goods for babies. The wife picked up a pair of white sports shoes from the display rack, and is said to have handed it to her husband. He put down his backpack and unzipped it and put the pair of shoes in it. Then the wife took two shirts from another rack and clutching the shirts in her hand, walked towards the store entrance with her husband, past the cashier. When they reached the entrance of the store, she put the T-shirts in a plastic bag which her husband was still carrying.

5. Pausing there for a moment, if that version was the truth, one may be forgiven for concluding as did the magistrate, that husband and wife were acting in concert on a shoplifting expedition in the store.

6. The evidence went on that they then left the store. They were there stopped by the security man, and he then told them that they had not paid for the goods that they had taken and took them down to the security office. Once there, the 1st defendant asked if they could pay for the items and the 2nd defendant said that they had acted due to momentary greed; could they buy the goods?

7. This witness said that he had kept the pair under observation for something like 20 minutes and that during his observation of them, the husband and wife had engaged in conversation. It was put to him in cross-examination that when he saw the 2nd defendant at first, she looked dazed and frightened; although in re-examination he said "frightened" but not "dazed" was the more accurate description.

8. A police officer then gave evidence. He said that when he arrested the two after the police had been called to the store, they then said that they did not do it, and it had nothing to do with them.

9. The defence case was based on a completely different factual basis and upon that basis they prayed in aid the wife's medical condition - she suffers from epilepsy - to suggest that she indeed took the clothes but without realising what she was doing, suffering as she must then have been from automatism following a psychomotor seizure.

10. The key account on behalf of the defence was given by the husband. I say "key account" because it is the wife's case that she could not remember anything that happened, since she had been a victim of her illness at the material time.

11. The 1st defendant is a man aged 32 with no previous convictions. His wife is aged 22, and she too is a person of previous good character. He said that he had been with his wife to fetch her medication that day, and that they were on their way home and went to the store to see if there might be some food for them. They went to the food hall but saw nothing to their taste, and then they went upstairs planning to go home, when the wife suggested going to look at baby clothes - they have a young child. They were examining baby clothes, when his pager went off and he went to find a telephone, but not before he told his wife to wait for him where she was. When he left her, she was holding some baby clothes in her hands. He went downstairs to find the telephone, and found one, and after some time made and finished his call, but then when he planned to go up again to his wife, there she was on the same floor as he, she then standing by display racks at the supermarket, and had in her hands the baby clothes and the durian pack. There and then they were surrounded by store staff and asked if they had paid for the goods and when he said "No," whether they planned to do so. They were all still inside the shop. There was nothing in the nature of any admission; no suggestion by the wife about momentary greed; his wife had placed no items in his rucksack; and all the staff seemed interested in was that they should pay for the goods. Even on his own story nothing was suggested to the staff, or to the police, that his wife must have taken the goods in a trance due to her illness, which the court was told was a long standing illness. They were being required to pay for the goods, although he never actually took money out to do so, for there was no chance. Why in the circumstances the police were called when all the staff wanted was to be paid, he did not say even though asked. He had on him something between $1,500 and $1,600.

12. The wife's evidence was that she suffered from epilepsy since childhood, and had not taken medication that day. All she could say was that she did not go to the store to steal. She could only recollect the incident after her husband had told her about it.

13. A psychiatrist was called on behalf of the defence. He had not been present during the evidence of the prosecution witnesses. He produced a written report dated 15th May 1996. It recounts the history of the wife's illness, and in particular refers to the fact which seems to be have been accepted, that the wife had by 11th April missed her medication for about 10 days before the incident in the store. He said this :

"5. Psychomotor seizures often escape the attention of passers-by. A state of clouding of consciousness usually follows, during which the patient retains control of posture but performs actions without being aware of what is happening. ...

1. Past records, as stated by Dr Pang, suggested that Ms Leung suffered repeated seizures within a short period whenever she missed medicines. It was, therefore, very likely that she suffered the same when she missed her drugs in early Apr 96.

2. At the time of the alleged offence on 11 Apr 96, it was very likely that Ms Leung had an attack of psychomotor seizure followed by a period of automatism (which was to say, she was not conscious or aware of her actions)."

14. The doctor had not heard the evidence, and nevertheless he based his conclusion on what the wife had told him about the events in question. Her account to him had been that she had been left alone in the store for quite some time. When she eventually located her husband, she and he were surrounded by security guards. She did not remember any details of the intervening period. The doctor felt that this, in combination with the fact that she had been without medication, was consistent with her having suffered an attack. "Her description", he said (meaning she was not aware what was happening and her inability to recall what happened) "fitted exactly the typical manifestations of psychomotor seizure."

15. The problem with all this was, as events transpired, that the magistrate did not believe a word of the version presented by husband and wife. He believed the evidence of the security officer, not only as to what the wife did but also as to what the husband did and what they both said when they were taken to the security office. That being so, the psychiatrist's evidence in the event was in my judgment of scant avail, save to the extent that he confirmed that the wife suffered from epilepsy and psychomotor attacks. And the psychomotor attacks took place from time to time especially when drugs had not been taken. It was of scant avail because the primary factual basis upon which he based his conclusion was false.

16. The doctor said that he had also seen the brief facts; that is, the brief facts of the alleged offence which the police commonly prepare when a case is to come before a magistrate's court. He said that even on the brief facts, his conclusion would be the same "if she was not aware of what she was doing". The brief facts were very brief indeed. The conclusion drawn by the doctor in relation to them begs the question whether there was any suggestion on the alternative version, that she did not know what she was doing. Her allegation and I emphasise her husband's that she did not know what she was doing rested on an account they had given the doctor of the wife being left alone and going blank, as it were. That is not what happened. "A doctor can give evidence of what he is told by a patient about his condition for the purpose of evaluating his diagnosis, though his testimony is inadmissible to show what symptoms were actually experienced by the patient." (see Phipson on Evidence, 14th Edition, paragraph 32-07). The patient in this case did not advance an account, nor did her husband, of a wife walking in a dazed condition with him, around the store, and picking up things. The prosecution evidence was that the husband and wife were acting in concert on a number of separate occasions in the shop. The doctor was not told by the brief facts, or at all, that the events during which they were observed spanned about 20 minutes; that they had been seen in conversation; or that both had offered to pay; or that the wife had said that what she had done was due to momentary greed; or that neither husband nor wife had suggested that the wife might very well have been acting absent-mindedly. Nor was the doctor asked what conclusion he would have arrived at if he was to proceed on the assumption that the story he had been told was fundamentally and deliberately untrue. In my judgment, an opinion based on the brief facts which recounts in eight lines the broadest outline of the case and which is devoid of the advantage of the various other facts to which I have referred as painted by the prosecution case, is an opinion which in the circumstances of this case is not particularly helpful, by which I hasten to emphasise that I do not intend to comment on the psychiatrist's skill, for he is very well qualified and my comment is simply a comment on the value of an opinion based on such scant information.

17. In reference to some of the particular grounds of appeal which Mr Halley has addressed today in his succinct and persuasive way are these. He avers to the fact that this is a case of one version against another and given that the appellants are people with the previous good character, there is no particular reason why the magistrate ought to have believed the main prosecution witness rather than his clients. I would simply say that belief is not a numbers game and that they were clearly inherently incredible aspects of the evidence of the husband to which the magistrate has referred. It should be noted that the prosecution case was that these two were acting in concert. In those circumstances, in particular, it cannot be said realistically to be a case of the evidence of two against one.

18. Then it is said by Mr Halley that the magistrate was wrong in concluding that the evidence of the wife that said that she acted out of momentary greed somehow negated the suggestion of automatism. I have already addressed the question of the psychiatrist's evidence and its standing in the light of the magistrate's findings that the prosecution evidence was to be believed. However, in relation to this particular comment, it is a confession by the wife about which the doctor had absolutely no idea, and in particular one notes that neither the husband nor the wife said to the security officers that they could not remember anything or that the wife had been ill. The comment made by the wife contradicted the entire thrust and the very thread of the account upon which the doctor based his conclusion.

19. It is then said that concentration on this admission by the wife, and indeed the implied admission by the husband, is contradicted by the evidence of the police officers who arrived at the store a little later and to whom both appellants rendered denials. It should be remembered that by the time the police came, the incident had moved to a new plane. The plea which had been advanced by the husband to be allowed to pay had by that stage failed.

20. Then Mr Halley draws to my attention that in the magistrate's reasons for verdict, there is no reference to the fact that the 1st appellant had $1,500 or $1,600 in his possession. The magistrate has paid much attention to the fact that neither the 1st nor the 2nd appellants had previous convictions. The question of the 1st defendant in the circumstances having money on him was not considered by counsel acting for these appellants before the magistrate to be of sufficient weight or importance in the context of this case to mention in submissions, and I do not think the magistrate can be criticised for failing to do so.

21. A number of discrepancies are put to me by Mr Halley as undermining the evidence of the security officer at the store, namely, the first prosecution witness; and in particular the fact that in his evidence-in-chief, he said that he saw the 2nd defendant put the box of durian into a black backpack carried by the Chinese male mentioned earlier and that the man carried the backpack on the shoulders. Pausing there for a moment, it is not the only interpretation of those sentences that the backpack was on his shoulders at the time the box of durian was put into it. It could well be a suggestion that, generally, in the course of the events the backpack was carried on his shoulder. In any event, Mr Halley draws to my attention the fact that later on the same witness said that the backpack was off the shoulder when the durian was put into it. The magistrate in his findings has obviously found that it was on his shoulder. Again, this was not a matter which was considered of sufficient significance by counsel appearing for either appellant in the case to mention in his submissions and I do not think it is a disparity in the context of the case of any significance.

22. In all the circumstances of the case, I find nothing in the law which was applied by the magistrate or in his approach to the facts which would warrant upsetting these convictions. It is of course, I am sure the appellants will realise, not for me to hear and re-assess the evidence. That is a matter which the magistrate was there to do and he had the witnesses before him.

23. In all the circumstances, this appeal is dismissed.