HKSAR v. SAVITHA GANESH

HCMA 769/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 769 OF 2010

(ON APPEAL FROM ESCC 2195/2010)

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JUDGMENT

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1.  On 8 March 2011 I allowed the appellant’s appeal and set aside the conviction and the sentence imposed upon her. I dismissed an application for costs. These are my reasons for doing so.

2.  The appellant was convicted by Mr H Mierczak, after trial, of a single charge of theft contrary to s. 9 of the Theft Ordinance, Cap. 210, and sentenced to undergo imprisonment for a period of six weeks. A suspended sentence imposed 11 months before the date of the offence, for an identical offence, was activated and ordered to be served consecutively for the sentence imposed in this matter. She appeals the conviction.

3.  The prosecution case effectively was unchallenged. The magistrate summarised the essential prosecution evidence in these terms:

PW1 is a security guard at City Super store. At about 14:10 hours on 25 May 2010 he was on duty in plain clothes. He noticed the appellant pushing a trolley. In the trolley was a basket and three recycle bags. She was looking around and look very strange so PW1 kept her under observation. He saw her pick up a stone grinder of the store and put it in her basket. She then picked up a rice cooker and put that in the basket also. She proceeded to go to another part of the store, look around and then put both of the items into the pink recycle bags she had. She then pushed the trolley to the entrance, took out the three recycle bags and left the store without payment.

The magistrate accepted the prosecution evidence. No complaint is made about that.

4.  The appellant elected to give evidence. She related how she had been suffering from depression since the time she moved from India to Hong Kong in 2004, for which she had been receiving continuous medical treatment both from a psychiatrist and a clinical psychologist since 2007. She had been on escalating doses of medication as part of her treatment. In addition, the premises neighbouring her residence had been undergoing renovation from October 2009 on a daily basis: she had been unable to sleep properly and had also been prescribed medication for that complaint which, she said, left her feeling groggy.

5.  As to the events of the 25 May 2010 it was her evidence, in essence, that she had had little sleep the previous night: that morning she had made an appointment with a friend to meet in Central and had intended to catch a ferry from Discovery Bay at 12:40 PM. For reasons which she was unable to explain, other than that she had been "very disturbed", she had simply missed that ferry and caught a later one. She was thus late for her appointment but had contacted her friend to warn her. After she had arrived at the Outlying Islands ferry pier she had walked through IFC2 towards Queens Road Central where the meeting was scheduled to take place. She made a detour into the store concerned but testified, in evidence in chief, that she did not recollect entering. She said she had no recollection of putting any of the items other than the grinder and a rice cooker into her basket. She recalled seeing and looking at the grinder and recalled having a small interaction with a staff member who had assisted her on previous occasions. She recollected that the staff member had gone to look for a new grinder but returned saying that the one on display was the last one in stock. She said she thought the staff member helped put it into her basket.

6.  She did not recall, she said, passing through other parts of the store nor did she recall transferring items out of the trolley into the three recycle bags. She did remember, however, being stopped outside the store at some stage by a security guard. She testified that she had no need for, nor any reason to buy, the majority of the items which were in her bags, which were products suitable for babies. It was an admitted fact that on that day she had cash in excess of $2800 on her person.

7.  When she was cross-examined she was asked why, if she was late for her meeting, she had gone into the store and said that she did not know why because normally she would only shop on her way back to catch the ferry home to Discovery Bay. She said she could not explain why she had gone in. She was then asked:

Q:      Then why would you go into City Super?

A:      I honestly don't know... I don't know why I walked in that day.

...

Q:      But you do remember you did go into the store?

A:      Yes, now, yes.

8.  She called her current psychiatrist, Dr. David Lau, to testify on her behalf. At the request of her solicitors he had prepared a detailed report which contained a history of her condition compiled from his observations, from what had been related to him by the appellant and her husband and from the notes of previous medical practitioners. Inasmuch as there is any doubt about the status of his report, it is clear that the magistrate, the prosecutor and her counsel, Mr. Delaney, who appeared for her at trial and here, all relied upon it: the magistrate referred in his statement of findings to it as "...his produced report..." and "[The psychiatrist’s] evidence is based partly on what the appellant tells him with respect to the incident, as well as of course, the reports of Dr. Lai and other factors which he related in court, together with the appendices attached which are all before the court.". It plainly was in evidence in the case. That it was not formally marked as an exhibit it does not detract from its status: there is no magical transformation of an exhibit simply by allocating it an alpha-numeric code for reference purposes.

9.  In short, Dr. Lau’s evidence was that the appellant had started complaining of low mood, poor sleep, inattention and poor appetite in December 2004. She was seen by a private psychiatrist, Dr. Lai, from 2007 and was diagnosed as suffering from an adjustment disorder with depressed mood for which she was given various medications. She was subsequently seen by another psychiatrist from July 2009 who described her as suffering from obsessive-compulsive disorder and secondary depression and recommended that she received cognitive behavioural therapy from a clinical psychologist which, apparently, she did. She first consulted Dr. Lau in August 2009 who diagnosed her as suffering from a depressive episode of a recurrent depressive disorder with obsessive-compulsive features. He adjusted her medication. The dosage was regularly increased and the specific antidepressant medication was changed in order to enable higher doses to be administered to her. By April 2010 she was on 300 mg a day of a medication of which the maximum dose was 375 mg. Although there was some improvement in her mood and energy level she reported persistent insomnia.

10.  Dr. Lau expressed the opinion in his report and in evidence that the appellant's condition fulfilled the criteria of a moderate depressive episode of a major depressive disorder which was a pathological form of persistent depressive mood, associated with a specific set of other symptoms one of which was marked inattention. He expressed the opinion that she was suffering from a form of mental illness at the time of the offence: her mind was under the influence of a pathological depression resulting in significant impairment in attention and concentration.

11.  During his evidence in chief he related that the appellant appeared to him to have reached almost her lowest point at the end of 2009. He noted that there had been consistency in what she had told him, which was indicative of her suffering from depression. He expressed the opinion that it was possible that she could have gone into the store, picked up the items and walked out simply not appreciating that she should pay for them. He testified that her description was consistent with the type of behaviour that he has seen in similar patients. He accepted, fairly, also that it was possible that, notwithstanding her condition, she could have made a conscious, deliberate decision to be dishonest and to steal.

12.  He was asked in cross-examination whether, if he had been given false information concerning a person’s symptoms, he would arrive at the same conclusion in respect of that person. His reply to this was:

I think it's difficult because after all these years, we can tell who's telling the truth and who is not... We would... know... because there are patterns. If they are telling me some kind of unusual symptoms which is not consistent, we would question her... It's a matter of consistency. And I would say that all along the consultations, she was telling me a consistent story. And it was also consistent with the stressors.

13.  He testified in evidence in chief that the fact that she had very few recollections of what happened in the store was suggestive of psychological amnesia or dissociative amnesia, during periods of which a patient may behave in an unusual manner but without any idea of what they are doing at the time. In cross-examination he testified that the appellant's inability to recall what she had done in the store was atypical for inattention: that she was unable to recall that behaviour was rare but, although not typical of inattention, was consistent with her depression. When this aspect was canvassed in re-examination he was asked whether it was possible that she had told him deliberately - presumably meaning with an intent to mislead him - that she was unable to recall what she had done in the store to which he responded:

Well, it's always possible, but I will say that what she told me was consistent. It is also consistent with my feelings in the history... where the patient is telling you the truth... all the time and which is whether... it was consistent with the past history... So, I would believe what she told me.

14.  It is, of course, not for an expert witness to intrude upon those areas which are the domain of the finder of fact. That does not preclude him from expressing his professional opinion as to whether he was being given accurate information or not: all that he was saying was that her consistency over the period of time during which she had received treatment was such as to satisfy him of him of her reliability in relating her symptoms upon which he based his diagnosis.

15.  The magistrate, when analysing the evidence of Dr. Lau, correctly recognised that it was "... for the court to determine which parts of his evidence it accepts and which it does not.". Immediately prior to passing this observation, however, the magistrate had described one aspect of the appellant's evidence as being in "... the realms of fantasy...", going on to say, without any qualification, "... even taking into account her condition as described by [Dr. Lau] which I accept.".

16.  It was, of course, open to the magistrate to accept or to reject a part or all of Dr Lau’s evidence. This is a clear indicator that he accepted it in its entirety insofar as his diagnosis of her condition is concerned. However, he then apparently rejected Dr. Lau’s evidence of the possible effects of that condition on her behaviour, including her attention span.

17.  Despite that initial unqualified acceptance, which encompassed the clear evidence of Dr. Lau that her inability to recall details of her actions at the time of the offence was consistent with her condition, the magistrate expressed the view that he was unimpressed with the appellant in the witness box; that he did not believe her version of events and rejected it; that he “had no doubt” that she remembers much more than she told the court or Dr. Lau; that he did not accept Dr. Lau's opinion that her concentration was so poor at the time she could be persistently forgetful and that "she knew exactly what she was doing, she must have".

18.  Three particular aspects of the evidence appeared to have exercised the magistrate leading him to reject the appellant’s evidence: first, the apparent discrepancy between what the appellant told Dr. Lau as to her memory concerning going into the store when compared with her evidence in court; secondly, the fact that the appellant indicated that she was able to remember certain matters on the morning of the offence; thirdly, the large quantity of items which she took and the manner in which she behaved when doing so.

19.  The first and second aspects may conveniently be taken together. The evidence concerning the morning of the offence has already been detailed: there indeed was an apparent difference between her recollection as recorded by Dr. Lau as having been expressed to him and her evidence in chief concerning her recollection of entering the store, although it is to be noted that in cross-examination she did testify that she recalled entering the store but continued to insist she was unable to recall the reason why.

20.  No cross-examination was addressed by the prosecutor to Dr. Lau as to whether there was any significance in the appellant being able to remember some aspects of that morning, or even possibly some aspects of the events in store, despite his specific evidence that:

What it means is the patient can, apparently, talk to someone and do something. At the same time he or she forget his own personal identity, and then after that period, she will forget that episode. She may remember some of it. She may not. But for the most part,... he'll she may not be able to recall what happened. That is the description of psychology and easier or dissociative amnesia.

21.  It is not without significance that the appellant testified, in her evidence in chief, that although she did not recall actually having entered the store, she did recall several minor incidents which occurred whilst she was inside. To this extent her evidence in court was consistent with her report to Dr. Lau about these matters, as appears from §5.3 of his report.

22.  As to the third, the nature of the items taken and her bizarre behaviour at the time when they were taken was, in my judgment, supportive of her version rather than destructive of it.

23.  There is a further matter which the magistrate saw fit to mention and which may well have affected his view of the appellant’s attentiveness. He indicated in his Statement of Findings that "even on the appellant's own evidence, she did not take [her anti-depression medication] at all times as directed". Unfortunately, that is not the evidence. She was specifically cross-examined on this aspect by the prosecutor and, when asked if she had stopped taking her medication by herself, her response was an unequivocal "No, never.”

24.  An appeal from a magistrate is a rehearing on the original material. On the particular facts of this matter I was satisfied that, although the magistrate had the advantage of having seen and heard the appellant before him, given the nature of the evidence as a whole and his acceptance of Dr. Lau's evidence, I was in as good a position as he to arrive at my own decision.

25.  I, too, accepted the evidence of Dr. Lau. In my judgment none of the three concerns expressed by the magistrate justified, whether individually or cumulatively, rejecting the appellant's evidence in toto and substituting a speculative view contrary to the express, and accepted, opinion of Dr. Lau of the fact that the appellant suffered from the disease diagnosed by him and the consequences that flowed in terms of her behaviour and attentiveness at the time of the offence.

26.  Once Dr. Lau's evidence was accepted it, in my judgment, raised a real doubt as to whether the appellant had formed the requisite intent, that she was acting dishonestly at the time of the commission of the offence. I consequently allowed the appeal and set aside the conviction and sentence.

27.  The appellant applied for costs of the hearing of the appeal, including Dr. Lau’s expenses. Realistically, Mr. Delaney accepted that it could be argued that, insofar as the trial was concerned, the appellant had brought suspicion upon herself by her conduct but invited attention to the fact that the appellant had succeeded on appeal. True, but the appeal was only necessitated by the appellant’s suspicious conduct which set the train of events of the prosecution in motion. I refused the application.