HKSAR v. POON YU TING

HCMA 1145/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1145 OF 2002

(ON APPEAL FROM TWCC 914/2002)

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J U D G M E N T

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1. This is an appeal against conviction. The appellant was convicted of theft. It was said that he had stolen a bottle of shampoo from a Wellcome Supermarket.

2. The facts were that, on the day in question, the alarm went off. It was an alarm that was activated by a magnetic strip placed on the shampoo bottle. And the 1st prosecution witness described seeing the appellant running off at full speed when that had happened, and he described the apprehension of the man and the explanation that he gave. The explanation in summary terms was this: he said he had purchased it from another Wellcome at Lok Yeung Sun Tsuen. PW1 pointed out that there was no Wellcome at that place. He says the appellant then changed it to one at Lo Tak Wai. Inquiries were made and they did not sell that sort of shampoo, and that evidence was called at trial. The police were called, the appellant was arrested, and he gave an account to the police. There was no issue about its admissibility, and he stuck to an assertion of buying the shampoo elsewhere before going to this Wellcome.

3. At trial, the story had frankly changed. The appellant there said that when he was walking by the scene in question, it brought back the fact that he had been the subject of an assault there previously, and that he had what might be described as a panic attack. It made him feel unwell, he was sweating and shaking but, as the Magistrate pointed out in his statement of findings, he did not leave the scene having had these symptoms brought on by the recollection. He actually went into the building where the assault had occurred and into the supermarket there. If it was not the exact building, it was in the location where the previous assault had occurred. The appellant says that there he cannot remember what he did and, accordingly, he had no intention of stealing the shampoo.

4. The Magistrate delivered a very full and detailed statement of findings. He believed PW1 to be a good and accurate witness. There are no grounds for upsetting that assessment. The Magistrate did not believe the appellant, and he did not act on the evidence of a psychiatrist whom the appellant called to give evidence. He pointed out that much of the basis for the psychiatrist's opinion was what he had been told by the appellant, and since he did not find the appellant had been telling the truth about it, he was not going to act on an opinion based upon his word. He also pointed out that the symptoms as suggested by the appellant as being a "state of dream" with fears of being chased and beaten was at odds with the expert opinion advanced by the psychiatrist. But it is the first point that has the force in undoing the effect of the psychiatric evidence.

5. And, of course, the Magistrate made the obvious point, in paragraph 28 of his statement of findings, that he rejected the claim to an absentminded state at the time of the incident, as the appellant clearly recalled the incidents that had happened after he went out of the supermarket, as appears from the evidence of what then occurred.

6. So, it comes to this, that it was a very strong case: there was the running off at speed, a demonstrably false explanation and evidence at odds with what was said to the police at the time and an expert whose opinion could not be acted upon because the basis for it depended upon the appellant's honesty in this regard.

7. Today, the appellant raises a number of points before me. The first is that in the Chinese translation of the name of the shampoo, the word "Optima" appears, whereas, in fact, what was written on the bottle and what was deposed to by PW1 and what is in the English charge is the word "Biance" and the appellant says the fact that it is elsewhere described as "Optima" is unfair to him and causes him prejudice. The fact is he cannot demonstrate any.

8. He was represented at his trial. The 1st prosecution witness produced the bottle of shampoo it was Exhibit 2 and everybody proceeded on the basis it was that object which had been found in the appellant's bag. Indeed, the appellant's counsel cross-examined on that very basis. There can be no question of the appellant, or his counsel, being misled or being wrong-footed in any way by the fact that two brand name words were used to describe the exhibit in court.

9. The second point raised by the appellant arises out of the fact that the 5th prosecution witness was called after the close of the prosecution case. The case had been adjourned to another day in the trial and it was when the court reassembled on the next day that the prosecution, having closed their case, sought to reopen it. In other words, the case had not advanced between the closing of the case and the application to reopen it, and the witness they wanted to call was the manager of a Wellcome at Discovery Park and they wanted to call him to say that at the material time that branch did not sell the relevant sort of shampoo.

10. It was not as if the appellant in his explanation to the 1st prosecution witness had specifically mentioned this branch. The name of this branch appears to have arisen in cross-examination of the witnesses in relation to inquiries PW1 made or what PW1 told the police. It was thus the case that this witness, PW5, was not present on the first occasion, but they had got him there on the second occasion. The Magistrate exercised his discretion to have the witness called. There was no challenge to the fact that that branch had not sold the relevant sort of shampoo. It would be a matter of record, and it is highly unlikely, that there could be any confusion or error about a fact like that. It did allow the appellant's counsel to make a good point which was that sometimes these magnetised security devices do malfunction.

11. The fact is that it was not the appellant's case, below or here, that he had gone to the Disco Park Wellcome and purchased that bottle of shampoo that was Exhibit 2. It was an overwhelming inference on the facts that the shampoo had come from the Wellcome in question. The live issue of the defence was whether the appellant was suffering some sort of attack and was his mental state such that he did not know what he was doing.

12. The appellant makes large play of the prejudice caused to him by the calling of this witness after the prosecution had closed their case. He even suggested that it might have affected his choice of whether or not to give evidence. I reject that completely. It is absolutely apparent to me that he has latched onto something and is seeking to manufacture some prejudice from it when no prejudice, in fact, flowed at all. If I had been the Magistrate, I would have exercised my discretion in the same way. But even if the Magistrate and I were both wrong to do that, the fact is that there was no prejudice that arose from the calling of that witness.

13. The third point made by the appellant was that the Magistrate was not equipped to choose not to act on the expert opinion of the psychiatrist. The answer is, of course he was. The Magistrate in his statement of findings gives good, clear and cogent reasons why he did not act on the evidence. I have already dealt with this in part and I am not going to repeat it again.

14. The fourth point made was this, that the Magistrate made a finding that if this shampoo had come from elsewhere, then it would have set the alarm off as he came into the store because it set it off as he went out. The appellant says, well, there is no evidence that one can see in the transcript whether the device that picks up the magnetic signal is at the entrance as well as the exit or whether the exit and the entrance are, in fact, different. In fact, this does not really go to the issue. I suspect there was some indication below that allowed the Magistrate to make the finding that he did. But even if he was wrong in making that finding, it would not begin to persuade me to do other than confirm the order that the Magistrate made in convicting this appellant because his case, whilst he says, "I can't remember at all where I got the shampoo", cannot realistically have countenanced that he bought it elsewhere before his attack took place and that he then carried it into this branch of Wellcome. Leaving aside the whole question of whether or not the alarm might have gone off if he carried it in, all of the evidence indicating that he had removed it from those premises makes it overwhelmingly the case that he did so.

15. Accordingly, when it comes to looking at the order I should make, I confirm the order made below. The fact is this was an overwhelming case.