HKSAR v. LAM LAI LING

HCMA 836/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 836 OF 2002

(ON APPEAL FROM ESCC 1076/2002)

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J U D G M E N T

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1. On 26 June 2002, the Appellant was convicted after trial of one charge of Theft. She was ordered to be bound over in the sum of $100 for 12 months. She now appeals against her conviction.

2. The facts of the case were simple. It was the early evening of 31 March 2002. PW1 was a supervisor at a cosmetic store in Causeway Bay. Her evidence was that she saw the Appellant walk round the shop with three bags hanging from her arm and became suspicious. Later, the Appellant picked up a bottle of cosmetic, put it into one of her bags and walked out without paying. PW1 immediately stopped the Appellant and brought her back into the store. When the Appellant was finally persuaded to empty her bags, the same bottle of cosmetic was found amongst a batch of clothing that fell to the floor. The Appellant claimed that the bottle was hers but the police were called. When the police arrived, the Appellant said that "That thing was picked up by them from the floor and they blamed me for having stolen it. I do not know what was happening."

3. Turning to the Appellant, she had been a psychiatric patient for ten years. Her evidence was that prior to the incident, she had taken her medicine and was sleepy. In any event, she had not been in the shop for long but was accused of stealing on her way out. She denied it and the shop staff found nothing in her bags. Then one staff member said she was "too cheeky" and called the police. When the police came, she denied the allegation again. Her defence at trial was that it was a frame-up. She also called DW2, an Associate Professor of Psychiatry, who testified to the effect that the Appellant was self-destructive, depressed and highly medicated.

4. Having heard all the evidence, the Magistrate found the prosecution to have proven each and every element of the offence beyond reasonable doubt. He found the bottle for cosmetic from amongst the batch of clothing to be the store's. On the contrary, he rejected the Appellant's evidence as a concoction designed to evade her liability. More importantly, the Magistrate noted that notwithstanding the evidence on her psychiatric condition, the Appellant flatly denied the allegation. The Magistrate noted that she did not testify about any lack of memory of the events surrounding the incident nor did she attribute her actions to the effects of medication.

5. As Mr Daryanani for the prosecution points out in his written submissions, this matter turns entirely on the facts. The papers reveal much evidence on which the Magistrate could come to his conclusion. There is nothing to suggest that he erred in the course of analysing and evaluating the same. On the other hand, what the Appellant has been trying to do this morning was have me re-try the facts which, of course, is not my function today. I dismiss the appeal.