HKSAR v. YEUNG MING HA

HCMA328/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 328 OF 2008

(ON APPEAL FROM ESCC 5493 OF 2007)

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J U D G M E N T

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1. The appellant appeals against her conviction at Eastern Magistracy on a charge of theft.

2. The charge alleged that she had stolen 12 kiwi fruit at the Wellcome Supermarket in Grand George Street, Causeway Bay, on 3 December 2007.  The offence alleged is therefore one of shoplifting.

3. The appellant is a 57-year-old housewife of previous good character.  She was observed by the manager of the supermarket (PW1) putting 12 kiwi fruit into one of the supermarket’s small transparent plastic bags (Exh. P2) and thereafter putting it into a red coloured fabric shopping bag (Exh. P3) which she was carrying on her right shoulder.  She then walked around the supermarket before walking passed the cashier’s counter without making payment. 

4. PW1 gave evidence that after the appellant was stopped by him outside the supermarket she offered to pay for the kiwi fruit.  He recalled that there was a discount on kiwi fruit that day but he could not recall what that discount was.  He accepted that the appellant had taken the fruit in a position where she would have been visible to the cashier.

5. The defence case put before the magistrate was that the appellant was on medication and had simply forgotten to pay for the kiwi fruit.  She had about $1,000 on her at the time.

6. She gave evidence that since February 2006 she has been suffering from headache, dizziness and insomnia for which she has been receiving out-patient treatment at Pamela Youde Nethersole Eastern Hospital.  On the day in question, she had taken the medicine prescribed by Dr Nip of that hospital as well as medicine provided by the Pak Tai Hospital in Shenzhen.  Essentially it is her case that the drugs had caused her to be confused and forget to pay.

7. Two medical reports of Dr Nip, the appellant’s treating doctor who is a resident psychiatrist at Pamela Youde Nethersole Eastern Hospital, were before the court.  He confirmed that the appellant was being treated with trazodone, fluoxetine, zolpidem and lorazepam and outlined possible side effects.  He said :

“… Side effects of trazodone might include drowsiness, headache, weakness, dizziness, decreased concentration and confusional state.  Fluoxetine might lead to drowsiness, fatigue, dizziness and gastrointestinal side effects.  Zolpidem might cause memory loss, impaired consciousness, confusion, reduced vigilance and drowsiness.  Lorazepam is a benzodiazepine hypnotic that, in general, might cause sedation, weakness, disorientation, blurred vision and memory impairment.  It is clinically considered that patients should not operate machinery or drive vehicles after taking trazodone, zolpidem and lorazepam in view of possible impairment to memory, concentration and judgment. …”

8. The learned magistrate had therefore to exclude the possibility that the appellant’s actions were the result of side effects of the drugs she was taking rather than dishonesty.  He noted that Dr Nip, the appellant’s treating doctor, had said that the appellant had never complained of side effects.  That was a material consideration but could not be decisive. 

9. The magistrate stated his other reasons for concluding that the appellant’s actions were not the result of confusion caused by the drugs. 

10. He said that if the appellant was confused she would have not put the kiwi fruit into the clear plastic bag (Exh. P2) and then into her cloth shopping bag (Exh. P3).  I am not persuaded that that is necessarily the case.  It could well be that she fully intended to pay for the fruit when she put it into the small clear plastic bag, but thereafter became confused or distracted and put that bag into her own shopping bag.  It is not the case, for instance, that she brought her own plastic bag into the store and concealed the fruit in that bag before putting it into her shopping bag.  I am not persuaded that the magistrate was correct when he said that :

“… it is inherently improbable that the appellant would suddenly become confused when she put the 12 kiwi fruits into her bag.”

11. He further said :

“If she was very confused, she would not have continued to walk around inside the supermarket once after taking 12 kiwi fruits as observed by PW1. …” 

12. While it is true that the appellant said that she was very confused inside the supermarket, it does not follow that she was so confused that she was incapable of walking around the supermarket. 

13. The magistrate went on :

“… When [the appellant] was stopped by PW1, her response was inconsistent with her claim in the defence.” 

The magistrate had referred to PW1’s evidence that the appellant’s response when stopped had been to ask if she could pay for the kiwi fruit.  He did not refer to there being any evidence of any more incriminating response.  I consider he would have referred to it if there had been.  It does not appear to me that an offer to pay for the fruit is necessarily inconsistent with the appellant’s actions being the result of the side effects of the drugs she was taking. 

14. Ultimately I am left with a lurking doubt about the reasons given by the magistrate for rejecting the possibility that the appellant’s actions might not have been dishonest, particularly in light of the uncontradicted evidence of the appellant, which was not referred to by the magistrate in his Statement of Findings, that there was a special offer if a customer bought six kiwi fruit.  The fact that she picked up 12 kiwi fruit, a multiple of six, rather than an number which was not a multiple of six, is some indication that she intended to pay for the fruit at the time she picked them up. 

15. In such circumstances, I allow the appeal against conviction.  I quash the conviction and set aside the sentence.