HKSAR v. RAJAPAKSHA, GANGA SHIRANI

HCMA 142/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 142 OF 2014

(ON APPEAL FROM ESCC 1398 OF 2013)

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R E A S O N S   F O R   J U D G M E N T
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1. The appellant was convicted after a trial which lasted four days, by a magistrate, Mr David Y F Chum, sitting at Eastern Magistrates’ Court. The trial commenced on 24 September 2013 and a sentence of six months’ imprisonment was imposed on 5 February 2014. She now appeals against both conviction and sentence.

2. The prosecution case was that in the afternoon of 24 April 2013, the appellant stole a vegetable knife, a blue vacuum flask and two plastic bags valued at $96.90 from Wellcome supermarket, Po Peng Street, Peng Chau.  PW1, the store manager, saw the appellant take the vegetable knife via CCTV from his office.  He saw her put it into her bag then take something from another display rack.  She then left the store without paying for anything.  PW1 left his office, stopped her outside and the goods were found in her bag.  The appellant had ample funds to pay for the goods plus an octopus card.  The defence case is one of non‑insane automatism.  She alleged that about an hour before she entered the supermarket, she received a phone call from her daughter in Sri Lanka informing her that her husband was sick and in hospital.  This had caused her mind to go blank.  The appellant gave evidence to this effect.  Defence provided unchallenged and accepted evidence that the appellant suffered from post‑traumatic stress disorder and major depression disorder.  The magistrate accepted that she suffered from those conditions.

The appellant’s grounds of appeal

3. The appellant entered five grounds of appeal in respect of the conviction, Ground 5 merely drawing the other grounds together.  Ground 3 was, correctly not proceeded with as it offended against common sense given what had occurred at the trial.  Basically having accepted in the Admitted Facts that identity was not an issue it was not then productive to suggest the in‑dock identification of the appellant was in anyway to be criticised.

4. In respect of the sentence of six months’ imprisonment, the appellant’s case was simply that this was manifestly excessive, given the nature and facts found by the magistrate in relation to the single charge.

Ground 1

5. The appellant alleged that the learned magistrate erred in finding beyond all reasonable doubt that the appellant intended to steal the goods, the subject of the charge; that the magistrate wrongly accepted the testimony of the prosecution witnesses whilst rejecting that of the appellant and the defence expert witness, Dr Parul Batra, without a proper basis.

6. In fact there was little factual challenge to either PW1 or PW2.  Given this, the magistrate’s reasons for his assessment of the prosecution witnesses is logical and well founded.  It was never the defence case that the appellant had not taken the goods the subject of the charge nor that she had paid for them.  Their production from the bag was a clear admission of these facts.  Why defence needed PW2 to be called is just one of many mysteries in this case.  Another is the putting to and acceptance by PW1 that there were instances where people forgot to pay.  This is not evidence.  PW1 cannot give admissible evidence on this point.  That is for the magistrate alone to decide if this was possible in this particular case.  The magistrate’s duty is to consider all the evidence and form a view as to its credibility, accuracy and honesty.  In paragraphs 25 to 27 of his Statement of Findings, the magistrate clearly and properly, though succinctly, dealt with his assessment of the appellant’s evidence.  The views he took and conclusions he came to were ones which he was entitled to arrive at.  In short, for the reasons set out he disbelieved the appellant’s evidence that she had received bad news from her daughter which triggered her mental conditions thereby leading to her act without intent to steal, or awareness of her act.  The magistrate, contrary to the submission put forward by Mr Sutherland, fully accepted that the appellant suffered from post‑traumatic stress disorder and major depression disorder.  However, Dr Batra at paragraph 7(2) of the report can only say it was possible she acted without an intent to steal.  The magistrate found as a fact she had such an intention.

7. Ground 2 merely echoes Ground 1 and advances the appeal not one jot.  The magistrate found and articulated clearly that the prosecution had discharged the evidential’s burden of proof beyond all reasonable doubt.

8. Ground 3 was rightly abandoned.

9. Ground 4 is a complaint that the learned magistrate erred in refusing to adjourn the case for further tests on the appellant.  That is clearly and properly addressed in the Statement of Findings at paragraph 18.  It is clear that, defence had had every opportunity to provide full tests and reports.  Indeed Dr Batra had provided a very comprehensive 29 page report and I can find nothing to persuade me that any further report could have been relevant to the events of the day.  This ground is baseless.  Ground 5 merely draws the grounds together to suggest the conviction to be unsafe and unsatisfactory.  It was not on either head and I uphold the conviction for the reasons given.

The appeal against sentence

10. I will deal with this shortly.  The offence of which the appellant was convicted after an unduly lengthy trial was theft of goods by way of shoplifting valued at $96.90.  She has two previous similar convictions in 2008 and 2010.  The first resulted in a surprisingly robust sentence of two months’ imprisonment and the second in a sentence of three months, suspended for two years.  This does not, in my opinion, render the appellant a persistent offender as is stated by the learned magistrate at paragraph 33 of the Statement of Findings.  Whilst not wishing in any way to trivialise a deliberate dishonest act and agreeing a custodial sentence to be appropriate in all the circumstances there must be a sense of proportion. Clearly the sentence is manifestly excessive and is reduced to three months’ imprisonment.