HKSAR v. LAM CHEUK FUNG

HCMA 847/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 847 OF 2000

(ON APPEAL FROM ESCC 854/2000)

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J U D G M E N T

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1. On 5 July 2000 the appellant was convicted after trial by a magistrate sitting at Eastern Magistracy of an offence of theft. He appealed against that conviction which appeal was heard by me on 12 July of this year.

2. I allowed the appeal, set aside the conviction and said that I would give my reasons in writing at a later date.

3. These are my reasons.

4. The brief facts of the case which were not I think disputed during the trial were these:-

5. PW1 was a store security officer at the HMV shop at 311 Gloucester Road and was on duty in plain clothes in the store on 27 February 2000. She saw the appellant take a compact disc from a shelf. The appellant went to another part of the shop and in the corner near a smoke screen door he took off the anti-theft plastic sheet of the compact disc. He then put the disc into the left pocket of his outer garment, and then walked back to his original position. Whilst holding a magazine and the anti-theft plastic sheet in his hand, he took another compact disc and opened its plastic packet. He put the anti-theft plastic sheet on the other disc and put that disc back in it's original place on shelf. He then left the shop.

6. PW1 stopped him 8-10 feet from the entrance and revealed her identity. She asked him if he had left the store without paying and then asked to search him. The appellant opened his left pocket for PW1 to see, and therein was the disc which had not been paid for. The appellant was taken to the office where he said 'I am sorry, please give me a chance' and also 'I am sorry, can I pay for it now?'

7. 2 witnesses gave evidence for the prosecution, the store security officer and a police officer. Inter alia the former agreed in cross-examination that at the material time the shop was crowded and that after she had apprehended the appellant he was crying. The police officer who had given evidence in chief to the effect that the appellant had admitted the theft told the court in cross-examination that the appellant had about $1000 on his person; that he was crying and that he appeared to be confused and frightened. The officer also told the court that his (the officer's)memory was not very good.

8. The appellant, a married man; a father aged 37, who was in good employment and who had not previously offended elected to give evidence. He called his wife, a doctor and a psychiatrist to give evidence and whilst he plainly also wanted to call two other witnesses they did not, in the event, give evidence and I will revert to that matter later in these reasons.

9. To put it shortly the defence put forward during the course of the trial was that the appellant did not intend to steal the compact disc; that by reason of great stress brought on over a prolonged period by overwork both his marriage and his mental health were breaking down.

10. The family doctor called by the appellant told the court that he had, about 4 days prior to the incident, prescribed medicine for the appellant's 'quite serious' influenza and that an effect of such medicine on some people would be to cause confusion.

11. In her evidence, which was not challenged by the prosecution, the appellant's wife, told the court inter alia of her husband's stress, its cause and of his unusual behaviour leading up to the incident.

12. The evidence of the psychiatrist Dr Singer, which included the presentation of a lengthy and very detailed medical report prepared after seeing the appellant on 3 separate occasions was not challenged by the prosecution. It was however challenged by questions put by the learned magistrate and I will revert to that later in these reasons.

13. Suffice it to say for the moment that Dr Singer was of the view, having interviewed the appellant and (separately) his wife, and having considered the case papers, that (and I quote from his report):

"For the past one and a half years subject has probably been suffering from symptoms of Generalized Anxiety Disorder, as shown by excessive anxiety and worry, difficulty controlling the worry and associated symptoms such as being keyed up, fatigued, difficulty concentrating and irritability (see Appendix I). The condition has caused significant impairment in marital functioning with the wife threatening to break up the marriage.

Causes of the symptoms include stresses such as work-overload, failure in elections and marital disharmony.

His condition became significantly worse since a few days before the alleged offence. Factors which likely aggravated his symptoms - particularly cognitive dysfunction such as impaired concentration, memory and awareness - include

- the severe cold he still had

- the medication for the cold which can cause drowsiness,

- the shock of hearing the wife telling him that morning to leave the home implying break-up of the marriage

- the noisy and over-crowded environment in the store at the time.

At the time of the alleged offence he was very likely suffering from symptoms of Generalized Anxiety Disorder, with difficulty concentrating, dullness, absent-mindedness and diminished awareness aggravated by the medication he was taking and the other factors as mentioned above."

14. As regards Dr Singer's evidence as I say this was not challenged by the prosecution but as the transcript shows the questions asked of him by the learned magistrate and the answers which he gave to those questions were as follows:

"Q. Yes, I have just 2 questions doctor, I have read the report, doctor, in its entirety of your findings and, of course, you are eminently qualified ...... Is there anything scientific or from observations that you made or your experience to ascertain with precision as to the defendant's state of mind at the time that he committed this offence - with precision?

A. Not really 100% precision ... so what I have said is a matter of probability, likelihood.

Q. Yes. And the last thing is that you say that this report or your findings are based on what the defendant told you, what his wife told you and your findings.

A. My findings.

Q. Right. Now you use on a variety of occasions throughout the report words like very 'likely': 'probably'; 'possible': 'suggests'. So that there is no precision that you can be 100% sure with respect to any findings that you made is there doctor?

A. That's correct."

15. In his statement of findings the learned magistrate had this to say about the evidence of Dr Singer:-

"His qualifications and expertise were not challenged. He had prepared a report on the matter and adopted the report, which was produced. Pages 22-27 of the report were based on what he was told and his examination. What he has stated is a matter of probability and likelihood."

and later:-

"There is no doubt he is eminently qualified. He had seen the appellant on the 5, 6 and 8 March, 2000 which was some days after the incident. He had made his analysis based on what the appellant had told him, what DW2 (the wife) had told him and his own expert conclusion. He could not say what was in the mind of the appellant at the time he was in the store but gave his opinion in the above light and that was clearly in my mind in reaching my decision. I do not believe that the appellant forgot to pay for any reason whatsoever."

16. At the end of his statement of findings the learned magistrate then concluded:-

"There can be no other reasonable inference drawn from the evidence other than the inference of guilt."

17. Plainly in order to reach that conclusion the learned magistrate had put aside Dr Singer's evidence in its entirety.

18. The grounds of appeal advanced by Mr Macrae, leading counsel for the appellant were as follows:-

"1. The learned Magistrate held that

"There can be no other reasonable inference drawn from the evidence other than the inference of guilt."

In so finding he failed properly to consider the evidence for the defence to the effect that the appellant at the time of the alleged offence was on medication, was under acute stress both at home and at work, and was likely to be suffering from Generalized Anxiety Disorder aggravated by his medication.

2. The learned Magistrate erred in fact and in law in excluding as hearsay or attaching no weight to the opinion of [Dr Singer] as expressed in pages 22-27 of his Report.

3. The learned Magistrate accepted the evidence of Dr. Chan Kwok-yan, the appellant's wife and Dr. K. Singer but held that the appellant was neither affected "to any marked degree" by any symptoms associated with his prescribed medication, nor affected "to any marked degree" by stress, nor suffering from the effects of Generalized Anxiety Disorder. If he was prepared to accept that the appellant may have been affected to some degree by the effects of stress in conjunction with his medication, he ought carefully to have considered [Dr Singer's] expert opinion rather than dismiss it simply because

"He could not say what was in the mind of the appellant at the time he was in the store ..."

4. The learned Magistrate, during the morning session on 5th July 2000, requested to know how many more witnesses for the Defence were to be called. When informed that the Defence proposed to call [Dr Singer] as well as two further witnesses on the issue of the appellant's stressful work-load, the learned Magistrate said that there was "no need" to call the remaining witnesses, since the appellant had already testified as to his busy work-load and, furthermore, [Dr Singer] could not give evidence as to the appellant's state of mind at the time of the alleged offence. After the luncheon adjournment, Defence counsel submitted that he should be permitted to call [Dr Singer] which he did. In the light of the learned Magistrate's subsequent findings, in particular

(i) his rejection of the appellant's evidence as to, inter alia, his stressful workload; and

(ii) his finding that [the appellant's wife] did not take the matter of the appellant's stress "much further"

it was inappropriate for the learned Magistrate to have made the remarks he did. In the circumstances, there was a material irregularity in the conduct of the trial.

5. The verdict was accordingly unsafe and unsatisfactory."

19. In oral argument before me, Mr Macrae dealt with each of these grounds of appeal in detail and by reference to the transcript of proceedings and the statement of findings prepared by the learned magistrate.

20. In relation to Ground 4 he argued that the learned magistrate did not give the defence the consideration it required and deserved and that it is quite clear that throughout the presentation of the defence he repeatedly queried the relevance of evidence and tried not only to limit it but to discourage it from being called at all.

21. Mr Macrae also complained that the learned magistrate on a number of occasions queried the very admissibility of Dr Singer's evidence upon the apparent footing that it was based solely on what he had been told by the appellant and his wife and was thus hearsay and inadmissible.

22. The fact of the matter is, argued Mr Macrae, that most of what Dr Singer had been told was confirmed by uncontradicted admissible evidence adduced in precisely the manner required by the Court of Appeal in Turner (1974) 60 Cr. App. R.80.

23. Mr Macrae went on to say this:-

"the learned Magistrate effectively discouraged the defence from calling two witnesses who would have testified not only as to the appellant's character but also as to the "great burden" he was under at the time of the offence. Not only did he discourage the defence from this course by suggesting that the witnesses could not "take the matter any further", he encouraged defence counsel to believe that the learned Magistrate would attach due significance to such evidence as there was of the appellant's pressure and stress. In the event, however, the learned Magistrate declared himself "not at all impressed with" the appellant's evidence, which he did "not accept" and indeed "reject(ed)". Furthermore, he maintained he had borne in mind the appellant's clear record. The appellant's good character, with respect, went beyond the absence of a criminal record, and would have gone even further had the extra evidence been called.

It is submitted that the learned Magistrate should not have acted as he did. Not only was the defence effectively misled by this statements and by his engagement with counsel, the defence was put off its legitimate course in showing that at the material time the appellant lacked or may have lacked the necessary mens rea of theft. Accordingly, there was a material irregularity in the conduct of the trial."

24. The passage from the transcript to which Mr Macrae was referring reads as follows:-

"Court: How many more witnesses have you got, Mr ...

Mr Chau: There will be three, including that Dr Singer, but I have to consider your Worship's opinion.

Court: Well, that's right ...

Mr Chau: But the other two witnesses ...

Court: ... it's for me to consider the state of his mind from the evidence.

Mr Chau: Yes, but I will consider your view over the lunchtime.

Court: And what are the other two witnesses?

Mr Chau: They are character as well who can prove that the defendant was subjected to a great burden.

Court: Well, the defendant has given evidence of that, so they don't take the matter any further and in relation to character, he's already said he's got a clear record. Perhaps that can be agreed as well.

Mr Chau: Yes, I will take all this into account during the lunch time.

Court: So take all that into account and we will resume ...

Mr Chau: I will let you know after lunch.

Court: Thank you very much. We'll resume at 2.15. defendant, stand please. Your bail is extended on the same terms that you are on till 2.15 this afternoon when we will continue with this trial.

Mr Chau: But one thing I would like to address, your Worship, is that the other two witnesses will not be here by 2.15, they are, in fact, in the office doing work ...

Court: Well, in view of what I have said, Mr Chau ...

Mr Chau: Yes, I will consider, but in case ...

Court: ... as I said, they do not appear to assist me in any way, shape or form. The defendant has given evidence as to his pressure, they can only corroborate that ...

Mr Chau: I will take all this into account in lunchtime.

Court: ... and his character and the doctor, you've heard my views.

Mr Chau: Yes.

Court: Thank you.

Court adjourns - 1.02 pm.

Court adjourns - 2.24 pm.

Defendant present. Appearances as before.

Court: Yes, Mr Chau.

Mr Chau: Yes, Sir. Over the lunch I considered the view you offered to me earlier on. As far as the two so-called character witnesses are concerned, I am not going to call them.

Court: Right.

Mr Chau: But as far as this psychiatrist is concerned, I do try again to seek your leave to call him, subject to your ...

Court: Well, you can call him but I'll stop you if the evidence becomes inadmissible, Mr ...

Mr Chau: I see your point."

25. I respectfully agree with each and everyone of Mr Macrae's submissions and in particular those relating to the admissibility of Dr Singer's evidence which was, as I have said, of crucial importance to the appellant's case.

26. Whilst it is undoubtedly so that a distinction must be drawn between the factual basis for an expert's opinion and the opinion itself, and that where the factual basis is an account of events given to a psychiatrist by a patient, it is for the tribunal of fact and not the psychiatrist to say whether that factual basis is or may be true, it behoves that tribunal to listen to and take account of other evidence put forward in support or in corroboration of that account of events.

27. During the appellant's trial there was plainly in my view (even without the evidence of the two witnesses whom the defence was discouraged from calling) sufficient evidence put forward to enable Dr Singer to give his diagnosis of Generalized Anxiety Disorder aggravated by the effects of medication. Had the learned magistrate not taken the view which he apparently did take of Dr Singer's evidence - that it was not particularly relevant - but had given it the consideration and weight to which it was entitled, in accordance with the principles in Turner, he might very well have come to a different conclusion as to the appellant's state of mind at the time of the alleged offence.

28. It was for all of these reasons that I allowed this appeal.