HKSAR v. LUK CHIU KI

HCMA 1058/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1058 OF 2004

(ON APPEAL FROM ESCC 2544/2004)

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J U D G M E N T

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1.  The Appellant, a 52-year-old Inspector of Police, was convicted after trial by a Magistrate of a single charge of theft.  He was sentenced to pay a fine of $2,000.00 and costs of $1,000.00.  He appeals the conviction.

2.  On an earlier application of the Appellant a transcript of all the evidence was prepared, save that of the second prosecution witness whose evidence is said to correspond with that of the first prosecution witness.  The evidence of the first prosecution witness was not in dispute.

The evidence

3.  Underlying the grounds of appeal is the contention that the Magistrate wrongly rejected the evidence of the defence expert witness.  It is necessary to set out some of the evidence in detail because it is the acts, words and conduct of the Appellant upon which the Magistrate relied, to a large extent, in rejecting the opinion of the defence witness when making his final determination. 

4.  It is not in dispute that at about 9:30 p.m. on 17th February 2004 the Appellant went into Jusco Department Store where he was observed by the first prosecution witness, a security officer employed by Jusco.  His suspicions were aroused by the Appellant's conduct because the Appellant "... was looking around but he was not concentrating on selecting the toys.  He was looking around at the persons, at the people around."  The witness kept the Appellant under observation: "... he walked over behind another shelves.  He then took a look, and then he squatted down.  And then he took out a white plastic bag from the black bag.  And put the box of toy into the white plastic bag that he had taken out.".  The witness then described how the Appellant left the premises, exiting through an adjacent apartment block.  When he left that building and entered a carpark the witness, together with a colleague who had joined him by this stage, intercepted the Appellant.

5.  The witness identified himself to the Appellant and accused him of taking goods without making payment.  In response the Appellant said "I am a fokie.  Give me a chance.  I would make payment.".  He related that the Appellant was speaking very clearly.  He and his colleague asked the Appellant to accompany them back to an office in the department store.  Whilst they were waiting for a lift the Appellant "... took out from his wallet an ID card and a card which was grey in colour... then he said... "of Chai Wan’s.  I am very familiar with Chai Wan”".

6.  After they had returned to the office the Appellant was asked to take out the things for which payment had not been made:  he took the toy out of the white plastic bag into which the witness had seen it being placed earlier.  The witness made a report to his superior who in turn called the police.  Whilst waiting for the police the Appellant said to the witness "You don't put it down in writing.  Well I'm dead.  Everything is gone.  I only have three years left before I get the pension."  The witness described the Appellant as speaking coherently and clearly:  there had been nothing unusual about his responses.  The witness also testified that at no stage had the Appellant had told him that he had been assaulted or robbed at around 9 p.m. that evening.  None of these events, as related by the witness, was challenged when he was cross-examined. 

7.  The third prosecution witness, a police officer, had gone to the office at Jusco Department store where he had seen the Appellant sitting on a sofa.  He arrived there at 9:56 p.m.  He asked the Appellant whether he had stolen the item but the Appellant did not respond.  He said, of the Appellant, "... it seemed that his face appeared to be in agony."  He went on to say that the Appellant appeared not to be feeling well at all and then had slid off the sofa onto the floor.  He had helped the Appellant back up to sit on the sofa and arranged for an ambulance to be summoned to take the Appellant to hospital.  He again asked the Appellant if he had stolen anything:  the Appellant did not reply.  The Appellant was arrested and cautioned:  he made no response.  The Appellant had not said, at any stage, that he had either been assaulted or robbed. 

8.  When he was cross-examined he indicated that an amount of some $1,700.00 had been found on the Appellant when he had been searched subsequently at the hospital.  It was put to him that the label relating to medication had been in possession of the Appellant at the time of the search but not seized:  he denied that to be so.  Save in one respect, the issue concerning the medication is not material to this matter.

9.  The fourth witness called for the prosecution was a doctor who had been working in the hospital to which the Appellant was admitted.  She had made a note, upon the admission of the Appellant, that the Appellant had been "... involved in a robbery case.”  She testified that she had not made a note of who had given her this information but thought it likely that it was one of the police officers.  When she later examined the Appellant at about 11 p.m. he had told her that he had been hit on the head by a stranger whilst walking in the street.

10.  This witness testified that she noticed a fresh bruise on the left side of the Appellant's head but she was unable to tell when or how it had been sustained.  There was no skull fracture.  She described the injury as "... quite a minor bruising" and “…a minor bruise”.  She was unable to tell from the bruise whether the Appellant had in fact lost consciousness if, indeed, the bruise had been caused by an assault.  She expressed the view that the bruise was consistent with having been sustained when he slipped off the sofa to the floor.  She agreed that the Appellant had said that he had been taking medication for a cold or flu.

11.  When she was cross-examined she accepted that the Appellant had complained of dizziness and nausea and agreed that those symptoms could be consistent with someone having suffered a head injury.  She was asked whether it were possible for a person who has suffered a head injury to "… suffer impairment of his consciousness" which she accepted as being possible but subject to the degree of the injury.  She accepted that if a person suffered impairment to consciousness there may or may not also be resulting loss of memory.

12.  The fifth witness for the prosecution was another doctor who had examined the Appellant after he had been referred to the neurosurgical department.  She had examined him on four occasions, the first being shortly after midnight on 18 February 2004.  Although she had noted the previous witness’s observation concerning the bruise, she had examined the Appellant's head but been unable to find any sign of bruising.  She had conducted a Glasgow Coma Test on the Appellant who had attained a full score.  In re-examination she reiterated that she had found no physiological signs at all which were consistent with a head injury

13.  When she was cross-examined she accepted that the Appellant had volunteered to her that he had been taking common medication.  She said that although she had specifically seen the previous witness’s note regarding the bruise to the head, she had been unable to find any such bruise.  She said she felt it unlikely, but, did not exclude, that the bruise would have dissipated in the intervening period.  She accepted that it was possible for someone who had suffered a mild head injury to attain a perfect score on the Glasgow Coma Test.

14.  The final prosecution witness was a Senior Inspector of Police who had interviewed the Appellant on the 18th February 2004.  He had seen documents which alleged that the Appellant had been involved either in a robbery or an assault and he wished to clarify the position.  He saw the Appellant in the presence of the Appellant's legal representative.  He referred the conflicting allegations to the Appellant.  The Appellant asked to have a consultation with his legal representative.  He did so.  Thereafter the Appellant had told him that because his head was still painful he could not remember whether he had mentioned either of the allegations to staff at the hospital.  When asked if he wished to pursue the complaints he said he did not.  The witness also testified that the Appellant had declined to the register a further complaint concerning alleged loss of money.

15.  There has been reference to the fact that the Magistrate referred to a robbery of the Appellant rather than an assault.  In the circumstances, nothing turns on this.

16.  In cross-examination the witness accepted that the Appellant had shown him the medication label which bore the name of the Appellant's wife.  He also accepted that the Appellant told him that he had taken two tablets at around 8:45 p.m. the preceding night – 15 minutes before the alleged robbery or assault and 45 minutes before the theft from Jusco.  It is in the sense that the Appellant was able to recall the fact and time of taking the medicine prior to the alleged offence that the evidence concerning the medication is relevant.

17.  The Appellant elected not to give evidence but called a psychiatrist, Dr LAW, to testify on his behalf.  The offence occurred on 17 February 2004:  the Appellant was first examined by Dr LAW, for the purposes of the trial, on 24 August 2004.  Dr LAW relied upon documentation given to him by the Appellant, including the medical reports from the hospital, as well as his examination of and consultation with the Appellant in forming his opinion.

18.  He also knew from various reports that the Appellant was subject to considerable stress at the time of the offence.  He was receiving psychological counselling at the time, the most recent consultation prior to the date of the offence being on 13th February 2004.  This was because he was already interdicted by the police, having previously been convicted of an offence of theft from a shop.  He had given notice of intention to appeal that conviction:  the appeal was to be heard subsequent to the date of this offence.  For the sake of completeness, that appeal was allowed.

19.  It is clear that the Magistrate did not make improper use of the information concerning the previous arrest, prosecution and acquittal of the Appellant for he took the trouble of specifically reminding himself, in his Statement of Findings, that the Appellant was a man of good character at the time of trial.

20.  Dr LAW expressed the view, initially, that there were three possibilities to explain the mental state and behaviour of the Appellant at around the time of the offence:  firstly, post traumatic automatism upon which he elaborated by saying that "... the person involved is not conscious of what  is behaviour, and the person, supposedly has no voluntary control of the action.  With a history of head injury... the thought of the brain during the concussion can cause these automatism...";  secondly, hysterical dissociation which refers to a "... a temporary change in the normal integration of consciousness, memory and other behaviour that come on suddenly.  And the person involved is usually under strong, overwhelming anxiety..."; and thirdly, malingering in which "... the person is fully conscious and is aware of what he was doing at the time of the offence.".

21.  He expressed the opinion that "on the balance of probability" it was not likely that the Appellant was malingering.  He explained that he looked at the diagnosis and then tried "... to pick out what is more likely.  Of course I cannot say it with certainty... I think it is more likely that the behaviour at the material time of the offence was the result of either the head injury or the psychological stress or, more likely, a combination of both."

22.  When Dr LAW was cross-examined it emerged that the Appellant had been referred previously to another psychiatrist.  He had consulted that person on the 11 July 2004:  nothing more is known about that.  The course of the Appellant's actions during the commission of the offence was summarised to Dr LAW:  he was asked specifically whether a person in a state of automatism would be capable of such complex conduct.  He expressed the view that it was possible, adding that persons in a disassociated state can appear to be quite normal to a layman.

23.  When he was cross-examined in regard to his opinion on the issue of hysterical dissociation, Dr LAW expressed the view that because the Appellant had been “harmed” or had “suffered” as a result of the first offence of theft, he had experienced an episode of hysterical disassociation at the time of committing the present offence.  He accepted, however, that the Appellant had been able to successfully conduct an ordinary shopping trip earlier the same day.

24.  It was suggested to Dr LAW that the “overwhelming anxiety” experienced by the Appellant had manifested itself only after the first prosecution witness could not be persuaded to give the Appellant a chance and only after the police had been called.  No doubt the Magistrate had regard to the evidence of the first prosecution witness that there had been nothing unremarkable about the Appellant’s appearance or conduct during his dealings with him as well as the police officer’s evidence that, upon his arrival, the Appellant’s face appeared to be in agony:  there were no physical events described before the Magistrate to account for this change.

25.  The witness accepted that that was a possibility.  He also accepted that it was equally a possibility that the Appellant had been malingering:  that, as a general proposition, many claims of amnesia after crimes are simulated.  The witness accepted that it was a possibility that simply because a person suffered amnesia relating to a set of events did not mean that at the time of the event itself he was unaware of his conduct.

26.  That left the Magistrate with a  variety of possibilities through which to sift.  He had to, and did, particularly consider those thought most likely by Dr LAW.

The grounds of appeal

27.  Five substantive grounds of appeal, plus the catchall "unsafe and unsatisfactory" ground as the sixth, are advanced. 

28.  However he may have expressed himself, and there was a lack of clarity or precision in a number of instances,  if regard is had to the statement of findings as a whole it becomes overwhelmingly apparent that the Magistrate was fully aware of the real issue which he was called upon to decide in this matter – whether, on all the evidence, he was sure that at the time the Appellant took the item and left Jusco without paying he had the requisite intent for the crime of theft. 

29.  Ground 1 complains that the Magistrate "... did not properly or fairly  consider the impact of the evidence and medical report of PW1 on the issue of the Appellant's intent on the charge of theft". 

30.  This ground is amplified by suggesting errors in the Magistrate’s understanding of the evidence of Dr LAW as well as unfair and inaccurate use of evidence to undermine that witness’s opinion.  Closely allied with this ground is Ground 4 which contends that, based upon the medical evidence, the Magistrate ought to have found a reasonable doubt concerning the Appellant's intent. 

31.  Particular reference is made to an exchange between the Magistrate and defence counsel during the latter’s final submission.  It is suggested that that passage illustrates the Magistrate’s misunderstanding.  It is pertinent to observe that if there were any blurring between the issues of amnesia and that of lack of intent, it arose in the presentation of the Appellant’s case. 

32.  When read in its entirety, as it should be, the exchange about which complaint is made is seen to be dealing both with the issue of amnesia – the Magistrate querying why, if “total amnesia” as referred to by counsel at trial were an issue, the Appellant could recall the robbery or assault but not the theft – as well as with the issue of intention.  The final words of counsel during the exchange were “…if someone is doing something involuntarily, that means he didn’t really have the intention to do it.”  to which the Magistrate replied, simply, “Yes.”  The issue can hardly have been laid out more plainly for him. 

33.  The Magistrate accepted the defence witness as an expert.  As Mr Macrae S.C., who appears for the Appellant in this appeal but not below, realistically accepts  that did not confer upon his evidence, especially opinions which he may offer, any enhanced status.  As the Lord Chief Justice (Lord Taylor), observed in  R. v. Stockwell  [1993] 97 Cr. App. R. 260

“	… an expert is called to give his opinion and he should be allowed to do so. It is, however, important that the judge should make clear to the jury that they are not bound by the expert's opinion, and that the issue is for them to decide.”

See also Gall, J., in HKSAR v TSANG Ming-hey HCMA1056/2003 (unreported) at 12 and see HKSAR v NG Ka-ching HCMA643/2002 (unreported).

34.  The Magistrate was fully alive to the issues raised by the medical report prepared and evidence given by Dr LAW.  He was also fully alive to the evidence given by the two doctors who testified on behalf of the prosecution.  The Magistrate addressed, in terms, the possibilities propounded by Dr LAW which would account for a lack of intention on the part of the Appellant at the time of the commission of the offence:  automatism consequent upon a head injury and hysterical disassociation, or a combination of both.  He rejected each of these hypotheses.  Issue is taken with the manner in which he did so. 

35.  He dealt with the issue of post traumatic automatism in two stages.   Firstly, he related the Appellant’s conduct on the night of the offence which he found to be “ample evidence” that the Appellant was “conscious and fully in control of his conduct” at the time.  When he made these findings he had the evidence of  Dr LAW before him to the effect that a person experiencing post traumatic automatism indeed would be capable of carrying out such acts and appear “normal”.  There is nothing to suggest that he did not take that fully into account.

36.  In doing so he outlined those facets of the Appellant's conduct which he found demonstrated that the Appellant was capable of forming the requisite intention.  A similar approach was adopted in HKSAR v MO Sze-lung & Another [2003] HKEC 113 in which, without subsequent criticism from the Court of Appeal,  the trial judge had regard to the conduct of an accused in concluding that he had the capacity to and had formed the requisite intent, notwithstanding the evidence of an expert witness called by the defence that he was incapable of doing so.

37.  Secondly, on the issue of post traumatic automatism, he dealt with the issue of the head injury, effectively rejecting that there had been an assault on or robbery of the Appellant prior to his entering Jusco.  That was a finding of fact which, in my judgment, he was entitled to make albeit that it may not have been strictly necessary to go on to consider just how the minor bruising did occur.  There is, of course, no evidence of the assault from the Appellant himself:  he elected not to testify, as was his right. 

38.  The Magistrate had the evidence before him that no mention of the assault or robbery had been made between the time it allegedly occurred and his examination some two hours later despite there being any number of opportunities for doing so - mention that could have been made to at least one police officer; there was a consistent explanation, not involving an assault, for the minor bruising seen by one doctor;  there was no explanation for the second doctor not having seen that bruising an hour later, other than dissipation which, whilst thought unlikely, was not excluded;  despite claimed amnesia, the Appellant was able to recall the time and circumstances of the alleged assault as well as the fact that, fifteen minutes prior to it, he had taken medication.

39.  Once he found, as he was entitled to do, that the head injury had not been caused in the circumstances claimed – and there was only one instance advanced by the Appellant as to when it may have been sustained – the underlying basis for the opinion of Dr LAW on post-traumatic automatism ceased to exist.  This had the added effect of rejecting Dr LAW’s further opinion concerning a combination of post traumatic automatism and hysterical dissociation.  The Magistrate was right to reject it. 

40.  The Magistrate also dealt, specifically, with the second hypothesis.  The Magistrate was justified in relying heavily on the Appellant’s conduct also to exclude hysterical dissociation.  There was real support for his rejection from the fact that the Appellant had conducted an entirely uneventful shopping expedition, in the same shop, earlier the same day.

41.  In Ground 2 there is complaint that by finding that it was "virtually impossible" that the head injury had resulted in post-traumatic automatism the Magistrate had applied an incorrect standard of proof which did not exclude the possibility that the Appellant in fact was suffering from automatism at the material time.  Reference is made, as support for this proposition, to R v Burns (1974) 58 Cr App R 364 and  HKSAR v YEUNG Ka-wah [1992] 1 HKC 84.  This was an unfortunate colloquialism which would have been better to remain unused by the Magistrate.  Again, looking at the statement of findings as a whole, it is clear that the Magistrate knew where the onus lay and to what standard.  He says that, in terms, in paragraph 13. 

42.  Ground 3 complains that the Magistrate’s finding that the bruise observed by one of the prosecution witnesses on the Appellant's head was caused when he had slipped to the floor from the sofa was speculative and unsupported by the evidence of the prosecution witnesses.  I have dealt with this in regard to his finding of fact as to the assault.  It was a finding which he was open to him to make on the evidence.

43.  Ground 5 deals with the issue of whether the Appellant may have forgotten to pay for the item.  The Magistrate was correct when he said that forgetfulness because of psychological reasons was not the defence case in this matter.  It was not:  it was far more complex than that, as he well appreciated.  All that the Magistrate was saying was that, on the evidence before him, he was satisfied that the Appellant had not simply forgotten to make payment.

44.  As to the sixth ground, there is nothing unsafe or unsatisfactory about the verdict.  The Appellant was properly convicted on compelling evidence, notwithstanding the medical evidence which was led and rejected.  I confirm the Magistrate’s decision and dismiss the appeal.