R. v. CHU HONG LIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.341 OF 1995

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J U D G M E N T

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1. The appellant was found guilty of shop-lifting at the Park'N Shop and now appeals against this conviction.

2. According to the Security Officer of the supermarket, the appellant was seen to pick up some big apples, pears and peanuts and placed them into a trolley. He was seen also pushing the trolley to the corner of the shop, looked around and put these items into his plastic bag. The officer saw the appellant walking out of the shop with the bag of items without paying. The appellant was stopped and later arrested. I do not think that such evidence, in broad terms, was ever seriously disputed.

3. The main issue was whether the appellant had the necessary mens rea. The learned magistrate, unfortunately, did not expressly deal with this issue. He said at p.18 of the Statement of Findings :

"At the end of this exercise, I found that the prosecution had proved its case beyond a reasonable doubt. With the demeanour of the defendant in the shop as described by PW1, I did not accept that he was experiencing dizziness to the extent that he did not know that he had transferred the items into his bag and walked out of the shop without making payment."

4. A number of points can be made on the evidence. First of all, what the appellant was alleged to have said shortly after he was stopped was clearly relevant to his mens rea. There is some dispute on this. On the one hand, the Security Officer said that the appellant said : "Sorry, I failed in my business, please give me a chance." The appellant denied this. He said he told the Security Officer : "I felt dizzy and meant to buy these items, I forgot to pay." On the other hand, shortly after his interception, police officers were called in. The appellant was said to have told the arresting officer : "Give me a chance, I felt dizzy, so I forgot to pay." Unfortunately, the learned magistrate did not expressly deal with this part of the evidence presumably because he said he accepted PW1, the Security Officer's evidence, and accepted that he was a truthful and accurate witness. He did not go any further to resolve this part of discrepancy in the evidence.

5. In my view, the officer's evidence could not be overlooked. Although what the appellant said to the Security Officer was said shortly after he was stopped and what he said to the police officer was said a little while later, clearly if the police officer was to be believed, his evidence tended to support the appellant's evidence. Incidentally, there is evidence to the effect that the appellant has a business and some properties in Hong Kong and that his business did not fail. This was not challenged. The learned magistrate had regrettably failed to deal with this aspect of the case, which, in my view, is quite relevant to the appellant's mens rea at the time.

6. There were also the admitted facts. Apparently the learned magistrate only recited them, or part of them, but did not, in my view, deal with them sufficiently. It was quite clear that the appellant was suffering from hypertension. There were two doctors that he had consulted. He had been given by one doctor a kind of drug, "Atenolol", which was known to be capable of causing some dizziness and which would last for 24 hours. He was also given by another doctor three types of medicine, and one of them, "Inderal" would also cause dizziness. The appellant said that he had a flu and had to take a "Neozep" which was certified in the admitted facts to be a drug which is well-known to cause drowsiness.

7. According to the evidence, and Mr Grounds quite helpfully pointed out to me the relevant part of the evidence, the appellant had taken the "Atenolol" at mid-night on that day and this drug was to last for 24 hours. So, first of all, he would have the effect of this drug. Then he said he had at least 3 dozes of medicine for his flu on that day : one after breakfast, one at noon and another one at about 4 p.m. At least two of the drugs, "Inderal" and "Neozep" would cause some drowsiness and dizziness. Unfortunately, the learned magistrate did not deal with this sufficiently apart from saying that he did not accept that the appellant was experiencing dizziness. With respect, the learned magistrate should have considered this part of the evidence more than merely relied mainly on the demeanour of the appellant as described by the Security Officer.

8. The Crown conceded that the conviction cannot be supported. In my view, that is a very proper concession. The learned magistrate had not sufficiently dealt with the crucial issue of mens rea in this case. I do find that the conviction is not safe and not satisfactory. In the circumstances, I would allow the appeal. The conviction is quashed and the sentence set aside.