R. v. CHEN CHUNG TAK

1996, No. MA 1399

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted on 19th September 1996 of one charge of theft and was fined the sum of $3,000 together with costs of $1,000. He appeals that conviction.

2. The facts upon which the prosecution relied were not in the main in dispute. They were that on 28th October 1995, the appellant went to a shop called Duty Free Shopper's (HK) Ltd. in Hankow Road, Tsim Sha Tsui where he took a tie from the tie department, dropped the price tag on the floor, held the tie in his hand and walked over to a shelf showing perfume. At the shelf, he rolled up the tie and put it into his left inner pocket or the left arm hole inside his coat. After a while, he walked back to the tie section through the ladies's wear section where he reached into his left arm-hole for a second time. He then left the shop hurriedly by walking downstairs and out of the entrance. There he took the tie from its position inside his coat and put it in the briefcase which he had been carrying under his left arm. After he had put the tie into his briefcase he was apprehended by the first witness for the prosecution who accused him of taking the tie from the shop without paying for it. The appellant responded by saying "Now, I pay you back the money". He was taken back to the shop where he was told to take the tie from the briefcase and did so. He was told the police would be called and said he was willing to pay double the price. When the police arrived, they were taken to the location where the appellant had dropped the price tag and it was retrieved.

3. The appellant gave evidence. He is a superintendent of the Customs and Excise Department. He has suffered from stress for many years and has been subject to psychiatric treatment. At the time of the incident, which is the subject of charge, he testified he had been taking a variety of medicines for insomnia, for pain and for congestion. He was under particular stress at this time because of a management course which he was undertaking with the Police Department. It was his evidence that at the time of the incident his brain was blank and the first thing he knew was that PW1 said that he had not paid. He said he then asked what he should be paying for and the witness told him about the tie in the briefcase. He said he offered to buy the tie so that he could be released. He had no idea how the tie got into his briefcase and was very frightened about it. He had also made an accusation in the police station that a police officer was planting a knife on his person and he could not tell the reason why he had said that.

4. He called two expert witnesses, one was Professor Brian Tomlinson and the other was Dr William Green. Professor Tomlinson is a pharmacologist and testified that taking all the medication that the appellant alleged he had taken would produce an altered mental state that causes confused and abnormal behaviour. He testified that the syrups in some of the medication may exacerbate a diabetic condition.

5. Dr Green found the appellant to be obessional and anxiety prone and that a blood sugar test had indicated the appellant might be suffering from diabetes. Such condition might have aggravated the adverse effects caused by multiple medication taken by the appellant.

6. Two witnesses from the Customs and Excise Department testified that the appellant had taken tablets on various occasions and one of them said that the tablets included sleeping pills.

7. The appellant was of good behaviour and clear record and this was taken into account by the magistrate. The actus reus of the offence was not in dispute. The mental state of the appellant and the necessary criminal intent were in dispute at the trial.

8. It was the first ground of appeal that the magistrate having relied on the evidence of Professor Tomlinson that the appellant would be unable to answer complicated questions put by the arresting officer failed to consider that no complicated questions had been asked of him, and also that the appellant given the nature of his occupation, would be familiar with police processes and would find such circumstances familiar and would be able to operate within that context even while affected by the medication.

9. Secondly, that the magistrate found that if the appellant's cognitive process was impaired as claimed, he would only be capable of performing those acts which he was very familiar, such as walking, eating and drinking and that he erred in finding that the appellant was not affected by the medication to the extent of being unable to form the requisite intent.

10. Finally, it was argued that the magistrate, in rejecting the appellant's evidence that he had on the day of the alleged offence taken various medication, failed to properly evaluate the evidence of the appellant, Dr Green and the two other defence witnesses.

11. Dr Green in his report said :-

"In addition to being anxiety prone even in the absence of serious external stress, Jacob Cheng also has the culture dictated drive to take multiple medications for minor symptoms and on the date on which he is accused of theft he had apparently taken large quantities of medication for an upper respiration infection which had been present for two or three days."

Further in Dr Green's evidence he said : -

"On the medical group of his problem I could see that he is still taking the same medication except the pain killer."

It was also argued that the learned magistrate had disregarded the evidence of the 3rd and 4th defence witnesses that the appellant had been in the habit of taking pills and tablets, and that one of the classes of tablets was described as "sleeping pills".

12. The magistrate in his findings said this :-

"I also did not accept that the defendant, being a man in his position would be engaged (sic) himself in multiple medication taking as alleged by him. Nor did I accept that he was in the mental condition allegedly suffered by him when he appropriated the tie."

It is this passage which Mr Plowman argues, is against the weight of the evidence.

13. It was the duty of the magistrate to be sure of the guilt of the appellant before he could convict. It was his duty to determine whether a dishonest intent in the mind of the appellant could be inferred from his admitted actions in the shop in the light of the evidence of his taking of multiple medication and the expert testimony of the effects of that medication. The principal issue of fact to be determined by the magistrate was whether the prosecution had proved that the appellant had not taken the medication he claimed and formed the intention of stealing the tie. To determine whether the prosecution had proved the appellant had not taken the medication it was necessary for the magistrate to assess the credit and evidence of the appellant when he said he took the medication, together with the supporting evidence of his colleagues and Dr. Green, and to assess the evidence from all sources of his actions in the light of the expert testimony in respect of the effect of the medication.

14. The magistrate properly adopted this approach but Mr. Plowman argues that he came to conclusions against the weight of the evidence in doing so.

15. The magistrate disbelieved the appellant when he testified as to the medication he took that day. He did so having in mind the supporting evidence of the two colleagues of the appellant. He was well aware that their evidence was that the appellant had on previous occasions taken medication including sleeping pills and that he had appeared sleepy at some times. Mr. Plowman also prays in aid the words I have quoted above of Dr. Green to the effect that he could see the appellant was still taking the same medication with the exception of the pain killers. That passage in his report refers to the time at which the appellant was seen by Dr. Green and is not evidence of ingestion of the medication on the day of the alleged offence. The magistrate did not find the appellant to be a credible witness. It is clear from his reasons that the supporting evidence of his colleagues as to ingestion of some medication on other occasions did not alter his view of the credit to be given to the appellant. It is the function of the magistrate to assess the witnesses who appear before him and I am satisfied that in this case he was entitled to come to the conclusion he did in respect of the evidence of this appellant.

16. The magistrate also concluded that the actions of the appellant at the shop were not consistent with the expert testimony of Professor Tomlinson as to the effect of the medication and of Dr. Green as to the mental state of the appellant. Whilst parts of the findings of the magistrate were perhaps not happily worded his overall meaning is clear. He certainly had in mind all that was before him as he sets the evidence out in all the detail that could be asked. He accepts that a person actually under the influence of multiple medication would not be able to answer complicated questions then finds in overall terms that the appellant did not act at the shop in a manner consistent with that condition. It was not necessary for him to specifically find complicated questions had been asked when he had made an overall assessment of the circumstances.

17. The decisions to be made by the magistrate in this case were, in the main, decisions of fact. Once he made the finding of fact the appellant was not under the influence of medication at the relevant time, bearing in mind all the evidence of the actions of the appellant and the evidence of the appellant and his witnesses, it was open to him to infer that the appellant had the requisite intent to commit the offence with which he was charged. Appellate courts should not rehear the evidence nor substitute themselves for the court below unless it can be clearly demonstrated that the magistrate has been in dereliction of his duty in some way. In this matter I am satisfied that the magistrate has properly evaluated the evidence and the appeal against conviction is dismissed.