HKSAR v. HUI PUI KAN

HCMA270/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.270 OF 2004

(ON APPEAL FROM KCCC 19004 OF 2003)

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J U D G M E N T

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1. The appellant Hui Pui Kan was convicted after trial before a magistrate to one count of attempted theft. He was sentenced to 12 months' imprisonment. He now appeals against conviction only.

The prosecution case

2. The appellant was a patient of ward 5 of the South Wing of Kwong Wah Hospital. On 27 October 2003, at 11:20 a.m., a physiotherapist ("PW2") saw the appellant in the ward on the East Wing of the same floor inserting his hand inside a drawer of a cabinet which belonged to a female patient, who was in coma and was the only patient in the ward. PW2 asked the appellant what he was doing. The appellant made no response and carried on with his action.

3. After about a minute, a nurse ("PW1") also saw the appellant's hands searching the cabinet. PW1 asked him what he was doing. The appellant carried on with his act for another 30 seconds and withdrew his hands from the drawer and said he was looking for somebody. Nothing was stolen from the cabinet.

The defence case

4. The appellant said he was admitted to Kwong Wah Hospital two days before the incident. He was prescribed with three kinds of medication : (1) for epilepsy; (2) painkiller; and (3) methadone. After he took the medication, he was dizzy, like asleep and did not know what he was doing. He had told the doctor about the side effect and was told it was normal.

5. On the night before, he took painkiller and methadone. After that, he did not know what happened. When he regained consciousness he was guarded by two security officers and was alleged to be involved in a theft case. His immediate response was that he did not do it and he had no recollection of having been to the East Wing.

6. The defence called Dr Leung Kwok Chuen, a medical expert, to give evidence on the effect of the medication on the appellant. Dr Leung stated that the appellant was a drug addict and he was admitted on 25 October 2003 for suspected collapse at home with loss of consciousness. He was treated as epileptic attack with phenytoin 300 mg, panadol for pain relief, and methadone on demand for withdrawal symptoms.

7. Dr Leung said phenytoin is an anticonvulsant and it was given to the appellant at 10:00 p.m. daily. The undesirable effects on the central nervous system include dizziness, drowsiness, lethargy, coma, confusion, mood changes, nystagmus, blurred vision, diplopia, ataxia and slurred speech. These effects are related to the plasma phenytoin concentrations. However, plasma phenytoin level for the appellant was 37 μmol/L which was slightly below the therapeutic level. Methadone is a narcotic. The appellant was given 5 mg of methadone at 8:00 a.m. on 27 October 2003. Its adverse effect on the central nervous system include euphoria, dysphoria, headache, insomnia, agitation, disorientation, drowsiness, dizziness, lightheadedness and sedation. Tolerance may occur with prolonged use. Methadone overdose was unlikely for the appellant as he used to take 50 mg of methadone as maintenance therapy and, in addition, phenytoin may enhance the metabolism of methadone and may decrease the serum level of methadone.

8. When examined at 12:55 p.m., one and a half hours after the incident, Dr Leung did not find the appellant to have any abnormality. He was conscious, fully alert and oriented as to time, place and person with coherent speech at the time. However, Dr Leung could not rule out the possibility that the appellant did something without his own knowledge.

The Magistrate's reasons

9. The Magistrate accepted the evidence of PW1 and PW2. He accepted the medical evidence of Dr Leung that he could not rule out the drugs could possibly have certain effects on the appellant and that the appellant did not know what had happened. The Magistrate found that the appellant's explanation at the scene, namely, that he was looking for a friend was untrue. He rejected the evidence of the appellant that he had no idea of what had happened. He found that if the appellant were in such a state as he claimed, he could not offer an exculpatory explanation that he was looking for somebody. He found that the appellant was well aware of what he was doing.

Grounds of appeal

10. Mr Donald for the appellant argued that the Magistrate erred in law in wrongly finding that the appellant had given an exculpatory explanation that he was looking for somebody when in fact his answer was such that it suggested his defence of non-insane automatism, and hence the Magistrate erred in law in rejecting the defence of automatism.

11. Mr Donald submitted that the Magistrate did leave automatism to himself but he failed to direct himself that once raised the burden lied on the prosecution to disprove automatism.

12. Mr Donald submitted that the gist of the defence was that the appellant did not know what happened. The background was that the appellant was admitted to hospital having collapsed two nights before. At the material time, the appellant was observed by PW2 who asked him what he was doing and there was no response, and the appellant carried on with his action. After about a minute, PW1 went up and asked what he was doing and the appellant carried on for another 30 seconds. Mr Donald submitted that was not a normal course of conduct for a thief who would rather do it quickly. Under such circumstances, the appellant's statement that he was looking for someone was nonsensical as he did not look for someone in a drawer, and hence it was not exculpatory. It might well support the defence of non-insane automatism.

13. Mr Donald accepted that the medical evidence did not directly show the lack of knowledge but he submitted that Dr Leung could not rule out the possibility that the appellant did something without his own knowledge. And perhaps the combined effect of the drugs could aggravate the effect on the appellant.

Consideration upon appeal

14. The Magistrate stated in his finding that the material issue of the case was whether the appellant was aware of what he was doing at the material time and it was a factual issue. The Magistrate directed himself that the burden was on the prosecution to prove the case beyond reasonable doubt. The defence did not have any obligation to prove his innocence. In disbelieving the appellant's version, it could not be used as any inference of guilt. The burden and the standard of proof remained unchanged. I note that the Magistrate has vast experience and I find that he was fully aware that the burden was on the prosecution to prove that the appellant was fully aware of what he was doing.

15. Ms Shine for the respondent referred to R. v. Chan Tak Kwong [1997] 1 HKC 478 per Leong J, applying A-G's Reference (No.2 of 1992) [1994] QB 91 that the defence of automatism required a total destruction of voluntary control of the defendant. Impaired, reduced or partial control was not sufficient to found the defence.

16. Ms Shine submitted that the medical evidence did not support automatism. The only rider of Dr Leung was that he could not rule out the possibilities that the appellant did something without his knowledge. She submitted that even though there might be delayed action displayed by the appellant, and on the state of the medical evidence, it was still open to the magistrate to find the appellant was fully aware of what he was doing.

17. I find that the Magistrate had properly approached the defence of automatism, in that, it was for the prosecution to prove that the appellant had the requisite knowledge beyond reasonable doubt. The medical evidence of itself did not directly indicate automatism. It gave the background that the appellant was under medication and the drugs might cause dizziness, drowsiness or disorientation. However, there is evidence that there was no overdose of either phenytoin or methadone. There is no evidence that the combined effect of the drugs would make the effect on the central nervous system more adverse. In fact, Dr Leung said phenytoin would decrease the serum level of methadone.

18. The Magistrate was tasked with the finding of facts, considering, inter alia, the medical evidence. The Magistrate did take into account Dr Leung's opinion that he could not rule out the drugs could possibly have some effects on the appellant and the possibility that the appellant did something without his knowledge.

19. Much criticism was made on the Magistrate's finding that the appellant's initial response that he was looking for someone was exculpatory. The Magistrate was merely stating that if the appellant were in a state as he claimed, that is, he had absolutely no knowledge of going to East Wing and when he regained consciousness he was guarded by two guards, then the appellant could not give an explanation that he was looking for someone which the Magistrate found was untrue and exculpatory on the face of it. The Magistrate specially said that no inference of guilt was to be drawn on rejecting the appellant's evidence.

20. The Magistrate did record in his reasons the circumstances of the encounter between the appellant and PW1 and PW2, and he must have been cognizant of its significance.

21. In all the circumstances, the Magistrate made the finding of fact that the appellant had full awareness and did not suffer from total loss of control. That was open on the evidence before him and not contrary to the weight of the evidence. Hence the appeal against conviction is dismissed.