HKSAR v. NG SIU TING

HCMA29/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 29 OF 2010

(ON APPEAL FROM ESCC 1094 OF 2009)

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J U D G M E N T

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1.  The appellant, an 18‑year‑old girl, was convicted after a trial before Mr Mierczak at Eastern Magistracy of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. She was fined $6,000 and now appeals her conviction.

2.  The prosecution case was that the appellant and another girl, who had originally been D1 at trial but who had pleaded guilty, were seen by a security guard (“PW1”), at a supermarket in Times Square.  They were shopping together in a separate section of the supermarket where stationery and other items were sold.  The items they had selected were placed in baskets.  After leaving that section without paying (which they might have done as it had its own cashier), the appellant and D1 had placed their items into one basket and then obtained a shopping trolley.  The basket was placed into the trolley.

3.  Both girls then went to, and continued to shop, in the main body of the supermarket, placing various items in the trolley.

4.  At one stage the appellant went by herself to the cashier’s counter where she purchased a recyclable shopping bag or environmental bag.  She then returned to D1 and they continued to select items from the supermarket shelves and place them in the trolley.

5.  About 15 minutes later PW1 saw the appellant take some candy out of the trolley and again go up to the cashier’s counter where she apparently paid for the candy and, after obtaining a green plastic bag, then returned to the main body of the supermarket and rejoined D1.  Both girls then proceeded to remove various items from the trolley and place them in the plastic bag.  Other items had been, at some stage, placed in the recyclable shopping bag as well as in the two personal handbags of the two girls.

6.  They then left the supermarket carrying the four bags, leaving the trolley where it was.  They left without paying, taking a route which avoided the cashier’s counter.

7.  Outside the supermarket both were stopped by PW1 who had followed them.  They were taken to his office and the police were notified.

8.  PW2 was the police officer who went to PW1’s office and spoke to the appellant.  When he arrested and cautioned her for theft, the appellant replied, “I want to hold a party tonight so I took those items.”

9.  Subsequently the appellant was taken by PW2 to Wanchai Police Station where a post‑record of her statement at the time of her arrest was made.  Additionally she is recorded as having further said, at the time of the making of the post‑record :

“This is the first time that I stole things. I will never do it again. I am very remorseful. I will never breach the law as there is fairness in the law.”

10.  Following the making of that record the appellant signed it as being true. 

11.  Subsequently she was interviewed under caution by a detective police constable, PW3, and in her own hand wrote in English on the record of that interview :

“I know and fully understand that stealing is wrong and against the law. I will never commit this crime or any crime again.”

12.  The appellant gave evidence at trial.  Her defence was that she had met her girlfriend D1 inside the supermarket, but outside the stationery items section of the supermarket, and noticed D1 had already selected certain stationery items which she was carrying on a rattan tray.  The appellant passed her a shopping basket and D1 placed the items inside.

13.  It was the appellant’s case that she believed D1 had already paid for those items as they had shopped together in the supermarket many times before and it was their practice to pay at the stationery section (which, as I say, had its own cashier) before proceeding into the main body of the supermarket.  Once there they placed the contents of the shopping basket in a shopping trolley they had obtained, then the appellant had purchased some candy and a shopping bag at the cashier’s counter.  They had continued their shopping and selected further items from the shelves and placed them in the trolley.  It was the appellant’s evidence that the stationery items, which she thought had been paid for, were placed in their personal handbags by D1.

14.  When the shopping was nearly concluded the appellant went to queue up at the cashier’s counter so as to save or reserve a place for D1 and the shopping trolley.  However the line went quickly and she arrived at the cashier before D1 came.  She therefore paid for some more candy and set out to find D1 with a supermarket plastic bag which she had been given as a result of purchasing the candy.

15.  When she returned to D1, having spent 10 minutes away from her, she noticed that all the shopping items had been packed away in both her and D1’s personal handbags and in the environmental shopping bag she, the appellant, had earlier purchased.  The appellant assumed these items had all been paid for by D1, even though they were still in the supermarket, because D1 was nearby the cashier’s counter.  D1 then used the plastic bag the appellant had to repack some of the items and they left carrying the various bags leaving the trolley behind.

16.  Once they were well out of the supermarket area, having gone up to the next floor on the escalator, they were intercepted by PW1.  They then returned to PW1’s office and the appellant was subsequently arrested by PW2.

17.  It was the appellant’s case that when she had been spoken to by PW2 at the scene of her arrest she had not said the words attributed to her in the post-record and later signed the post-record not understanding its contents because, though born in Hong Kong and able to speak in Cantonese, she had been educated at an international school and did not read Chinese characters.  She thought she had to sign the post-record to be allowed to leave the police station.

18.  During the course of the post-record and subsequently when interviewed by PW3 she had been very nervous, anxious and upset.  She had therefore written and signed the post-record and the record of her interview without telling any police officer what had actually happened and had written the full and frank confession (in English) in the record of interview at the request of PW3.

19.  DW2 was a psychiatrist called by the defence who saw the appellant some days after the offence and diagnosed the appellant as suffering from generalised anxiety and who offered the opinion that at the time when the appellant had been intercepted by PW1, and realised D1 had not paid for the items they were carrying, she had displayed the symptoms of an acute stress reaction which rendered her incapable of explaining what had actually happened to either PW1, PW2 or PW3 and also made her very compliant to suggestions made to her; which explained her co-operation in signing the post-record and record of interview.

20.  The magistrate accepted PW1, PW2 and PW3 as reliable witnesses and rejected the evidence of the appellant as not being credible.

GROUNDS OF APPEAL

21.  The grounds of appeal advanced on behalf of the appellant by Mr Duncan SC and Mr David Ma are that the magistrate erred :

(1) in accepting PW1 as reliable witness;

(2) in failing to correctly assess PW2’s evidence;

(3) in failing to correctly assess PW3’s evidence; and

(4) in rejecting the evidence of the appellant.

Ground 1 : PW1’s credibility

22.  Having read the transcript of PW1’s evidence I entirely agree with the magistrate’s assessment of him as being “an honest and believable witness”.

23.  Mr Duncan’s main attack on the credibility of PW1 stems from PW1’s evidence that he first saw the appellant and D1 together in the supermarket when both were in the stationery section of the supermarket at about 3:45 p.m.  He described the stationery section as the “daily items” section and said it was a separate place from the main body of the supermarket.

24.  Mr Duncan relies on a phone call between the appellant’s mobile telephone and D1’s telephone, which by the record Ex. P-33 produced in evidence by way of admitted facts was agreed to have taken place at 3:52 p.m. on that day, as supporting the appellant’s case that she had not yet arrived to meet D1 at the supermarket.  He relies also on an entry in Ex. P-34, a register of departures and arrivals from the car park of the building in which the appellant and her family lived in Stubbs Road on Hong Kong Island, which recorded the “daughter” of the appellant’s family as having exited the security gates of the premises by vehicle at 3:37 p.m. on that same day.

25.  In other words Mr Duncan says that the unchallenged documentary evidence undermined the evidence of PW1 that he had first seen the appellant and D1 together at the stationery item section of the supermarket at about 3:45 p.m. that day because at that time the appellant had left her premises in Stubbs Road only eight minutes earlier at 3:37 p.m. and was to ring D1 only some seven minutes later at 3:52 p.m.

26.  The magistrate, when concluding this evidence did not undermine PW1’s credibility, said :

“… [PW1] gives a full account of what occurred and I believe him. He says he had a continuous view of the girls from 3:45pm – 4pm, and says he did not see the appellant in that time use her phone. Clearly a call was made from the appellants phone to that of the other girl at 3:52pm – that is an admitted fact, and borne out by the exhibit produced (P33). I saw nothing sinister in this – PW1 missed it, if indeed it was made by the appellant herself on her phone. Even though he watched the two girls, he said continuously, the appellant had left the side of the other girl on more than one occasion. It certainly would not cause me to disbelieve PW1 in any way, shape or form as to the veracity of his evidence. I am satisfied that for the period he deposes to, he had concentrated his observations on the two girls. He had seen both of them collecting items together and putting them into the baskets. I am satisfied they had then both gone to the supermarket section – I would not expect PW1 to recall in minute detail everything the girls did – Perhaps, he missed the use of the phone – so what! His observations of both girls and what they were doing in the store was very clear indeed. I believe him.”

27.  The magistrate’s reference to the appellant leaving the side of D1 “on more than one occasion” was said to be an erroneous understanding of PW1’s evidence, as PW1 had never said the two girls had separated while in the stationery section.  But the magistrate was, in my view, clearly referring to PW1’s later evidence (which was common ground) that on at least two occasions the appellant and D1 had separated while in the supermarket proper (at which time the appellant again had telephoned D1) and simply meant by this reference that they may also have done so while in the stationery section without PW1 noticing, or having forgotten that they had done so.

28.  Nevertheless I agree with Mr Duncan that Ex. P-33 (the telephone record) and Ex. P-34 (the Stubbs Road building car park record) would, without more, tend to undermine the reliability of PW1 as a witness.  But, as will be seen, when PW1’s evidence is considered in conjunction with that of PW2, and particularly that of PW3, this ground cannot succeed.  PW1’s fundamental evidence that the appellant and D1 jointly stole items from the supermarket is, at the end of the day, convincingly supported by the appellant’s admissions to each of PW2 and PW3.

Ground 2 : the magistrates approach to PW2’s evidence

29.  The complaint advanced by Mr Duncan, in its express terms, is an allegation that the magistrate failed to properly analyse PW2’s reliability as a witness. 

30.  This ground concerns a number of complaints revolving around the making of Ex. P-26, the notebook post-entry of what the appellant was alleged to have said when arrested and cautioned.  The appellant’s case was that the admission attributed to her after caution by PW2 was never said, and that the further admission recorded in Ex. P-26 was never said by her and was written by PW2.

31.  Firstly Mr Duncan complains that the notebook entries were made contemporaneously with the making of the post-record of what D1 had said at the time of her arrest and caution, and that both post-records were made in the same room of Wanchai Police Station, namely the Crime Enquiries Room (described by PW2 as “the big room”), so that each of the appellant and D1 could hear what the other said.  PW2 agreed the post-records were made in the same room and indeed it was recorded on both post-records that they had been made at the same time in that room.  PW2 further agreed the procedure was “irregular”.

32.  It was, however, agreed that the appellant’s adoption, by signing, of the contents of Ex. P-26 was voluntary.  What was in issue was simply whether the appellant had said the words attributed to her.  Her case was that she had not said what she was recorded as saying at the scene of her arrest so that this aspect of PW2’s evidence was a fabrication, including that part relating to the additional admission written by PW2 in Ex. P-26 to the effect that it was the first and last time that the appellant had stolen; that she was remorseful and would not breach the law again as there was “fairness in the law”.  Further it was her case that the declaration contained in the notebook was copied onto the notebook by her at PW2’s request from something PW2 had written on a piece of paper.  Her evidence was that there was nothing, or at least very little, which she understood of the contents of Ex. P-26 as she did not read Chinese characters, though she understood, as I say, spoken Cantonese.  Accordingly when she signed Ex. P-26 she was unaware of its contents.

33.  The magistrate mistakenly thought that what the appellant had copied into Ex. P-26 at the request of PW2, was the additional admission rather than the declaration, and that the additional admission had been written by her in English. His conclusion in this regard was :

“ PW2 had clearly asked the appellant whether she read and understood Chinese (before the post-record) and she had. In fact the words written down by the appellant herself, (the ‘additional admission’ referred to) was in her own handwriting in English. I am further satisfied no prompting was involved at all, and it was spontaneous. The circumstances and procedure adopted were fair. It was her own words thus;

‘It was the first time I stole. I will never do it again. I am very remorseful. I will never breach the law as there is fairness in the law.’

As indicated the statement was voluntary and I put full weight on it.”

34.  The magistrate’s conclusion had been arrived at on a mistaken assumption of fact.  It was common ground the additional admission was written by PW2 in Chinese. 

35.  Given the magistrate’s misapprehension as to who had written the additional admission I approach the matter afresh : see HKSAR v Chou Shih Bin. 

36.  The appellant’s participation in the post-recording was voluntary.  I accept it was irregular that both girls’ post-records were made at the same time in the same room but do not think that to be a reason why Ex. P-26 should be given no weight.  I accept also that there is some similarity in what was said by the appellant and D1 in their post-recorded statements and that, as they had been intercepted by PW1 together, taken back to his office together, and waited there for the arrival of the police before being arrested and cautioned, there may have been considerable opportunity for each girl to hear what the other said from an early stage, as well as when their post-records were made.

37.  But the fact that each may have heard the others’ response does not render their admissions inadmissible, or for that reason alone, of no weight.

38.  The real issue concerning Ex. P-26 is whether the appellant understood the contents of the document.  I am satisfied she did.  She wrote in Chinese characters the terms of the declaration which appears in Ex. P-26.  The writing appears somewhat immature (as does her English writing in the later record of interview Ex. P-29) but it is flowing and apparently legible.  It seems to me that whoever wrote those characters cannot have been laboriously copying them out stroke by stroke in total ignorance of their meaning, but must have had some familiarly with, and understanding of, Chinese characters.

39.  I have read PW2’s evidence.  It was given straight‑forwardly and with considerable candour, so far as his admission was concerned that the making of both post-records in the same room was “irregular”. I note he was never asked why matters were done that way.

40.  In any event, I agree with the magistrate’s assessment that PW2 was a credible witness.  I also would accept his evidence.  The magistrate’s misapprehension as to what the appellant wrote in Ex. P-26, and in what language, does not and cannot affect my view of PW2’s credibility.  This ground fails.

Ground 3 : the magistrate’s approach to PW3’s evidence

41.  PW3 was the officer who, following the making of the post-record Ex. P-26, had two hours later interviewed the appellant under caution.  That recorded interview became Ex. P-29 at trial.

42.  The interview had resulted in a forthright and unambiguous admission by the appellant, written in her own words in English, that : “I know and fully understand that stealing is wrong and against the laws.  I will never commit this crime or any crime again”.

43.  Mr Duncan complains that the magistrate in accepting that admission as evidence against the appellant had failed to take into account that the interview had proceeded as “a blatant breach of the Secretary for Security’s Rules for the questioning of suspects in that at the time of the interview the police had sufficient evidence to charge (the appellant) and she was not informed of this”.  It is said that by further interviewing the appellant after the making of the post-record, PW3 breached (presumably) principle (d) of the Rules which is in these terms :

“That when a police officer who is making enquiries of any person about an offence has enough evidence to prefer a charge against that person for the offence, he should without delay cause that person to be charged or informed that he may be prosecuted for the offence; …”

44.  Common sense must be adopted in the application of the Rules, and so far as principle (d) is concerned that is a principle not created by the Rules but said to be unaffected by them.

45.  The ultimate purpose of principle (d), as with others in the same category, is to preserve fairness in the treatment of suspects and persons arrested by the police.  It is only where a breach of the particular principle results in unfairness to the individual involved, or prejudices a defendant’s case in some tangible sense, that the breach may result in the non-admission of evidence whether as a matter of principle or discretion.  Principle (d) is directed at preventing the repetitive questioning of a suspect after an investigation is complete, and a case against him has been established, for the sole purpose of having him incriminate himself further.  It does not prevent the clarification of stated facts or details in existing statements by a suspect which are ambiguous.

46.  In the present case, in her dealings with PW2, the appellant had made generalised admissions.  She had not referred to the specific items she had stolen.  It was PW3’s evidence that he wished to interview the appellant so as to clarify with her what she meant when in the earlier statement to PW2 she said she “took the stuff”.  Mr Duncan describes PW3’s evidence in that regard as “absurd”, but I do not think it is. The appellant’s earlier admissions had, as I say, been general in their terms, the stolen items had been contained in four separate bags of which some were carried by the appellant and some by D1.  The wish of PW3 to obtain some specificity as to what items the appellant’s earlier admissions referred seems reasonable to me.  It was, after all, necessary to know to what items the appellant’s admissions referred for the purposes of any charge.

47.  I do not think this aspect of the case either rendered Ex. P-29, the cautioned interview of the appellant, inadmissible, or undermined the credibility of PW3.

48.  Mr Duncan further criticises the magistrate for accepting PW3’s evidence that the appellant herself decided to write in English upon Ex. P-29 the words “I know and fully understand that stealing is wrong and against the law.  I will never commit this crime or any crime again.”  He says it is unlikely an 18-year-old girl would use such language.  I disagree.  There is nothing particularly unusual about the language of the appellant’s admission, nor with her volunteering the admission in the way PW3 said.  I might add it is wholly consistent behaviour on the part of the appellant as she had done a similar thing when making the post-record Ex. P-26 with PW2.  On that occasion she had used similar language to express similar sentiments.  There was no suggestion of collusion between PW2 and PW3.  They came from different teams.  The former was a uniformed officer and the latter from a criminal investigation division team. It seems improbable that both would fabricate the phrase in each of Ex. P-26 and Ex. P-29 in the similarly distinctive style of language used.

49.  In my view there was nothing unfair in the production of Ex. P-29 and PW3 was rightly accepted as a credible witness, though, and not unusually, he seemed a little confused when expressing his understanding of how his actions complied with the Secretary of Security’s Rules.

50.  In my judgment it would be a rare case where, because of brief admissions made by a defendant to an arresting officer at the scene of an offence and the later post-recording of those admissions, that any further inquiry of that defendant by way of a cautioned interview was precluded by the operation of principle (d).

51.  There was nothing in this ground.

Ground 4 : the rejection of the appellant’s case

52.  Two witnesses were called in the appellant’s case.  They were the appellant herself and DW2, a psychiatrist.

53.  The central thrust of the appellant’s case has been set out earlier in this judgment.  Her case was that it was her friend D1 who had stolen the charged items and that she, the appellant, had left with D1 and assisted in carrying the items because she mistakenly assumed they had been paid for.

54.  Subsequently she had complied with PW2 and PW3 in the making of Ex. P-26 and Ex. P-29 because she suffered from an anxiety syndrome that resulted in that compliance and inhibited her ability to express the true facts to either police officer. 

55.  I have already dealt with that part of the appellant’s case concerning telephone records and her residential car park record which undermined the evidence of PW1 and which Mr Duncan also relies upon under this ground.

56.  So far as other aspects of the appellant’s evidence were concerned the magistrate found, inter alia :

“ … I do not believe that at any time the appellant believed that the other girl had paid for the items. There were a large amount of items at various times and they were loose. She had in concert with the other girl been selecting the items in various sections of the store. She and the other girl had packed the items into their respective handbags.

…

… I do not accept her evidence that as she had been caught ‘red-handed’ with items in her handbag which had not been paid for, that she ‘had to claim responsibility for it’. That defies logic…. The appellant in the witness box had said she knows not to admit something that is not true, yet she did here. That is in the realms of fantasy and is rejected.

…

I am further satisfied that because of the many loose items the appellant and the other girl were taking, there was a necessity to get the plastic bag and environment bag for that purpose … There had been loose items in the basket, unpacked and originally no plastic bag or environmental bag for packing, and more shopping to be done, how is it that the appellant would ever think the other girl had paid for the items?  She (the appellant) clearly did not.”

57.  I agree with that reasoning and those findings.  I might add that it is a consequence of the appellant’s case that she had inadvertently assisted D1 by deciding to purchase some candy for herself during their shopping, and to pay for it immediately.  When she did so, at the cashier’s suggestion, she had purchased an environmental shopping bag. Subsequently she had decided to reserve a place in the queue at the cashier’s counter for D1 and the trolley and had got to the head of the queue without the arrival of D1 and had to pay for more candy resulting in the cashier giving her a plastic bag.  Those two bags were subsequently used to carry the goods out of the supermarket. 

58.  By a coincidental combination of circumstances therefore she had provided D1 with two shopping bags from the cashier’s counter which, to the casual observer, would suggest, no doubt, that the goods in the bags had been paid for.

59.  Perhaps the greatest flaw in the appellant’s case is her claimed assumption that after returning from the cashier’s counter for a second time (with the plastic bag) and re-joining D1 to find the goods packed, not in plastic bags from the cashier’s counter, but in her and D1’s personal handbags, that the goods had been paid for.  The appellant had been at the cashier’s counter waiting for D1, according to her evidence.  D1 had not appeared.  It may have taken some minutes but the appellant then found D1 still inside the supermarket.                     The goods were still not in supermarket plastic bags but were in the two girls’ handbags (and the environmental bag) earlier approaches by the appellant.

60.  Given all this the magistrate was right to reject the appellant’s evidence.  But there was an additional aspect of the appellant’s case.  Her claimed inability to state the true facts to either PW2 or PW3, given what she said to PW2 and particularly what she wrote in Ex. P-29 simply makes no sense.

61.  In Ex. P-29 the appellant wrote two quite detailed sentences admitting the offence.  She did not have to be so proactive.  She also took the initiative to underline the word “never” in the sentence “I will never commit this crime or any crime again.”

62.  None of that sits well with the notion that the appellant was so shocked and anxious from her realisation that she had inadvertently helped D1 steal from the supermarket, that from the time of her arrest to the conclusion of Ex. P-29, a period of more than four hours, she was unable to present the true facts of the case to either PW2 or PW3, and assumed she was equally responsible for D1’s theft.

63.  I agree with the magistrate’s rejection of the appellant’s evidence.

64.  That conclusion is not weakened by the evidence of DW2, Dr Jenny Tsang, a psychiatrist.  She had seen the appellant only after these events, about a week later, but was able to diagnose the appellant as having a generalised anxiety disorder which pre-existed the offence.  Such a disorder is exacerbated by stress.

65.  In the opinion of DW2 the stress of the appellant’s circumstances following her interception by PW1 could have caused her to have an inability to express herself.  Her evidence went like this :

“Q. But there’s – is there any obvious link between anxious or anxiety disorder and an ability to express oneself?

A.     Of course, because in those with generalised anxiety disorder, no matter of childhood or adulthood, they have an impaired ability during – especially during stressful situation like examination.  Sometimes their mind go blank and they cannot speak, they will use terms like ‘thought block’ to explain this kind of experience.”

It is quite obvious the appellant from her own evidence was not suffering from a “thought block”.

66.  DW2 subsequently described the symptoms of acute stress disorder (which in her view followed on from the appellant’s realisation she had been unwittingly involved in a theft) as follows :

“A. It is a transient disorder that will develop in the individual without any other apparent mental disorder, in response to exceptional, physical and mental stress, but individual vulnerabilities and coping capacity play a role in occurrence and severity of acute stress reaction. In this patient, or Defendant 2, the individual vulnerability is her generalised anxiety disorder, so that’s why she will develop acute stress reaction immediately when she was told that Valerie did [D1] not pay, she was in shock. And then the symptoms show a typical mix and change in picture, and then we turn to the next page.

COURT: Yes?

A. There was usually an initial state of daze, constriction of view of consciousness, inability to comprehend stimuli.  That means, stimuli means verbal questions.  This is auditory stimuli and disorientations.  In most severe case sometimes you can see … (indistinct) stuporous, agitation or over activity.  And I can give an analogy to make you understand more about this illness.  Usually, in some disaster, life threatening or in the earthquake, you will see someone crying non-stop, or become stuporous not respond to any question, refuse to eat for a few days. This is called acute stress reaction.  It usually appear within minutes, as you can see next in the first paragraph [of the report], the symptoms usually appears within minutes of the impact of the stressful stimulus or event, and disappear within two to three days.”

67.  It seems to me that there was a dearth of evidence that the appellant was displaying any such symptoms at the time of her arrest.  The opinions of the psychiatrist do not sit well with the appellant’s own evidence that she asked a number of questions of PW2, such as why she had to sign in a particular place in his notebook and what it was she was signing and what she was to do when she made a mistake.

68.  In my judgment the magistrate was right to accept DW2’s opinion that the appellant had suffered from anxiety prior to the offence but was also right to reject that condition as preventing the appellant from stating her case to either of PW2 or PW3.  Given the appellant’s behaviour during those interviews she quite simply, as a matter of common sense, was not suffering from any “mental block” or other debilitating symptoms which prevented her expressing herself to both PW2 and PW3 over a four-hour period.

69.  This ground also fails.

70.  I might conclude by saying this : regardless of the partial undermining of PW1’s evidence I am satisfied the evidence against the appellant was overwhelming.  She left the supermarket with D1 having provided bags for the stolen goods, those bags I should say suggesting at least superficially the goods had been presented to a cashier at the counter of the supermarket, and in circumstances where it must have been obvious to her that the goods had not yet been paid for.  She made frank and consistent admissions to both PW2 and PW3 as to stealing the goods.  On the occasion of the making of Ex. P-29 she wrote her admission in her own hand and in English. 

71.  There is no doubt the conviction was proper, and the appeal is dismissed.