HKSAR v. WONG SIU PING AGNES

HCMA418/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 418 OF 2007

(ON APPEAL FROM KTCC 4885 OF 2006)

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JUDGMENT

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1. On 29 March 2007, the appellant was convicted after trial of theft of one black bag, contrary to section 9 of the Theft Ordinance, Cap. 210.  A sentence of two months’ imprisonment was imposed on 17 April 2007.  The appellant applied for bail pending appeal but this was refused and, by the time the appeal came on for hearing, she had served her sentence.  The appeal against sentence was therefore abandoned and she now only appeals against the conviction.

The prosecution’s case

2. According to the Statement of Findings, the prosecution’s case was that PW1, a plain-clothes security guard of a department store, saw the appellant pick up a black bag from the display rack, and put it over her wrist, and went over to the food rack.  Later, she slipped the item into her own yellow shopping bag.  She paid only for the cake mix, and on leaving the store, she had walked slowly to the doorway, and paused at the anti-theft device before passing through, and this did not activate.  Outside the store, when asked, the appellant took the item out of her shopping bag herself, saying that she forgot to pay, and asked him not to report it to the police.

3. The reference by the magistrate to the word “slipped” above, namely that the appellant had slipped the black bag into her own shopping bag was repeated later on in her Statement of Findings when she said :

“

I accepted prosecution’s evidence to be the truth.  From the totality of the evidence that I accepted, I am satisfied that the appellant had deliberately slipped the black bag into her yellow shopping bag to conceal it, and that when she left the shop, she knew that she had the item with her, i.e. that she had dishonestly appropriated the bag, which belonged to Muji, with the intention to permanently depriving Muji of this bag.”  [Emphasis added]

4. The use by the magistrate of the word “slipped” was the subject of comment by Mr Eric Cheung appearing for the appellant.  This was because the witness (PW1) never said that the black bag was “slipped” into the appellant’s yellow shopping bag.  What the witness had said was :

“	... I saw that she removed the bag from her right wrist and put it into her own yellow shopping bag.”

5. When the magistrate gave her oral reasons for her verdict, she said that the evidence of PW1 was clear and firm, and from his account, she found him to be reliable and truthful and his demeanour was like that of an honest witness as well.  Any discrepancies in his evidence, if any, were minor and did not go to any material issue.  She then dismissed the appellant’s evidence as incredible and she said she did not accept the opinion of her psychiatrist Dr Yu.  She then said that she accepted the prosecution’s evidence to be the truth and from the totality of the evidence that she accepted, she was satisfied that the appellant had dishonestly appropriated property belonging to another with the intention to permanently deprive the other of it.

6. It was submitted by Mr Cheung that PW1’s account was not actually challenged by the appellant at the trial and it was indeed consistent with the appellant’s account.  Cross-examination of PW1 by the appellant’s counsel was directed basically to clarify certain details with him.

7. In dealing with the next witness (PW2) who was a police officer, the magistrate said this :

“	PC54789 (PW2) testified that at the store, the appellant told him that the plastic bag hanging on her had scratched her, so she put the item inside her own yellow shopper, and she forgot to pay.  This officer confirmed there were red scratch marks on her arm, but no bleeding.”

8. The evidence that PW2 gave was in fact quite important because he gave evidence of the appellant’s reaction after she was stopped.  He said :

“	She said that on that day, after she had taken the black shopping bag, originally she hung it on her right arm and because she was carrying a lot of things at the time, the plastic bag scratched and injured her right hand or arm.”
	...
	That’s why she put the shopping bag into her own bag, which was bigger.
	...
	After she had chosen some other things, and when she was trying to leave, she had already forgotten the fact that she had the bag. ...”

He testified that he saw some red scratch marks on her right arm.  The scratch marks were, of course, consistent with the appellant’s account that she had the black bag on her right arm and because she was carrying a lot of things at the time, the plastic bag scratched and injured her right arm.  It also showed that once the appellant was accused she gave an explanation of what had happened, which explanation is the same as that she gave at the trial.

9. The significance of PW2’s evidence was the subject of a query by the magistrate of the prosecutor about why did he even call that witness.  She said she did not know why the prosecutor had called that witness.  I regret to say that the significance of the evidence of PW2 does not appear to have been appreciated by the magistrate.  She never considered, or at least did not mention, why the appellant’s arms had scratch marks on them when PW2 saw her.  On the contrary, the magistrate came to the conclusion that the handle of the black bag could not have caused those scratch marks.  She came to that conclusion based on the demonstration which took place during the trial when :

“	... I examined the bag closely and there are no sharp edges on the woven handle.  I also slipped the handle up and down over my own arm five times.  Again, there was nothing scratchy about it.
	Remember at the time we did compare the size of our arms and my arm was fatter than yours.  I cannot believe that the handle of the bag could have caused the scratches in the photos that you produced and I do not believe that the handle could have scratched your arm at all.”

10. The demonstration in court was the subject of a complaint by Mr Cheung who contends that the demonstration in court was not a true test of what happened at the scene because in court only the empty black bag was used while at the scene the appellant was carrying the black bag, her own handbag and a yellow bag containing documents and other things.  The contention is that because of the inaccurate demonstration used in court, the magistrate was wrongly led to the conclusion that the appellant’s evidence was unbelievable.  The result of the demonstration in court, it is contended, also led the magistrate to find that the appellant was evasive, unreliable, untruthful and that her demeanour in the witness-box was consistent with that.  There may be some substance in that contention because, as we have all experienced, if one does not believe one important aspect of a witness’s evidence it may well lead one to conclude that that witness is unreliable.

11. Another ground of appeal is that the learned magistrate erred in ignoring or brushing aside the evidence of Dr Law Fung Ping (DW2), a general practitioner who had been treating the appellant before the alleged offence.

12. Dr Law first saw the appellant on 28 January 1999 and continued to see her until 4 June 2006, about two months before the date of the alleged offence.  Dr Law’s diagnosis was that the appellant suffered from generalised anxiety disorder and depression.  On 4 June 2006 when she saw the appellant for the last time, she prescribed the drug Efexor XR which was an antidepressant.  Dr Law’s evidence in court was that that drug was to cure depression and anxiety. 

13. Dr Law’s evidence was important because it showed that the appellant was not an ordinary person but was somebody who for sometime before the alleged offence suffered from depression and anxiety.  In her oral reasons for the verdict, the magistrate dealt with Dr Law’s evidence in one sentence, namely :

“	... Dr Law had given you medicine in June 2006 for depression and anxiety.”

14. Another ground of appeal was that the learned magistrate erred in rejecting totally the expert evidence of Dr Peter Yu (DW3), a psychiatrist.

15. Dr Yu has examined the appellant on three occasions, two in October 2006 and one in December 2006.  Dr Yu’s diagnosis was that the appellant had developed characteristic symptoms of a mental disorder called Major Depressive Disorder.  The severity of that aliment was one of moderate degree of intensity.  Dr Yu found that the intensity of the mental symptoms was at the most severe in the weeks leading to the alleged offence and that at the time of the alleged offence, the appellant’s concentration was grossly impaired due to the illness.

16. Dr Yu also found that the clinical history and the examination findings were consistent with the claim that the patient’s mind failed to register that the black bag was in the yellow bag.  That is to say, she was not aware that she possessed the black bag as she left the store.  Dr Yu mentioned that the appellant first suffered from the illness in the middle of 2005 but she recovered after taking appropriate medication prescribed by Dr Law.  However, she had a recurrence and Dr Yu estimated that the recurrence occurred some time in June or July of 2006.

17. In her oral reasons for the verdict, the magistrate dealt with Dr Yu’s evidence as follows :

“	... Dr Yu gave evidence and his opinion is based on what you told him.  However, you were shopping for non-essential items; that is, the bag and your cake mix for baking a cake on the material date, and this would be inconsistent with what Mr Yu said about impaired social functioning.
	For this and other reasons I do not accept his opinion that you were suffering from major depressive disorder at the material time.  Actually, during your evidence you did say that you were feeling all right physically, emotionally and mentally at the material time in the shop.”

18. In her Statement of Findings, the magistrate said this about Dr Yu’s evidence :

“	... Dr Peter W.T. Yu (DW3) a psychiatrist also gave evidence.
	... As I said, I did not believe the appellant’s evidence, and Dr Yu’s opinion is based on what the appellant had told him.
	Dr Yu opined that the appellant had major depressive disorder of a moderate degree of intensity, and at the material time, her concentration was grossly impaired.  The symptoms included impaired social functioning, and when asked how much of her social functioning would be impaired, he said that the appellant was depressed, and opined that a person with this disorder would no longer enjoy going out or meeting friends, and thus would stop meeting friends, and as for cooking and shopping, one would either just do the basic minimum or not cook or shop at all.
	However, on the material date, the appellant had no trouble recognizing that such a bag was suitable for her use as she travels all the time, and she clearly remembered to go shopping for a cake mix to bake a cake for a family birthday the next day.  I was satisfied that her memory and mental concentration could not have been impaired at the material time.
	Further, she was shopping for non-essential items, and was feeling good at the time because she found a suitable cake mix, and thinking more about the coming birthday than her work.  Her physical condition was neutral, tired as usual, but more relaxed than a weekday, and on that day, she had not taken any medication.
	This description of hers is inconsistent with what the Dr Yu said. I accept that Dr Yu was describing what a person suffering from a moderate degree of major depressive disorder might or might not be doing, and that he did say that a person with this disorder may not realize that she has this disorder; however, from what the appellant told us, it was obvious that at the material time, she was in a clear mind and concentration, with a good mood, looking forward to the family birthday, and further, she was enjoying the shopping.”

19. The problem has arisen in this way : in her oral reasons for verdict, the magistrate said in terms that she did not accept Dr Yu’s opinion that the appellant was suffering from Major Depressive Disorder at the material time.  However, in her Statement of Findings, she used Dr Yu’s evidence to find that she could not accept the appellant’s evidence for the reason that the appellant’s description of what she was doing and how she felt that day was, according to the magistrate, inconsistent with what Dr Yu said.  In doing that she was using some parts of Dr Yu’s evidence whereas in her oral reasons she said that she did not accept his opinion that the appellant suffered from Major Depressive Disorder.

20. Furthermore, as Mr Cheung contends, the magistrate might have misunderstood the evidence and explanation given by Dr Yu in court.  What happened was after Dr Yu was cross-examined, the magistrate put a number of questions to the witness :

“	Court:	You mention social functioning would be impaired.  Doesn’t go and meet friends?  Like social functioning is what, not going to meet friends and what else?
	A.	Going out, enjoying oneself.  Doing whatever they please.
	Court:	You mean, these types of things would just stop, is it?
	A.	Well, reduce, depending on the severity of the illness.
		...
	Court:	Used to enjoy meeting friends, and after disorder, or during disorder, they no longer enjoy it.  And so they stop meeting their friends, is that it?
	A.	Yes.
	Court:	But what about daily living, like, I don’t know, shopping for groceries, or you know, keeping themselves dressing nicely.  Is that affected?
	A.	Yes, in some cases - yes.
	Court:	In some case, yes - what do you mean?  You mean a person with Major Depressive Disorder ...
	A.	Yes.
	Court:	... can go shopping for groceries as usual, is it?
	A.	For instance, a depressed housewife who used to enjoy the cooking for the family would not be able to do so and ...
	Court:	Sorry, a housewife what?
	A.	For example, a depressed housewife, who used to enjoy cooking meals for the family, they only prepare very simple dishes or they don’t cook at all.
	Court:	They do the basic minimum, is it?
	A.	Yes.  But this kind of functioning impairment depends on the case.
	Court:	Right.  So would a person with Major Depressive Disorder, what about dressing nicely, is this affected?
	A.	Usually, yes.  There’s -- the person may not be as meticulously dressed up or made up as before.
	Court:	Maybe just neat and tidy would do, is it?
	A.	Yes.
	Court:	Rather than well.
	A.	Yes, this is affected - but again, individual case varies.
	Court:	Would it be even that person that has the Major Depressive Disorder, would it be that they wouldn’t even bother to dress neat and tidy?
	A.	That would be for the severe cases.” [Emphasis added]

21. From a careful analysis of Dr Yu’s evidence as quoted above, it would appear that he was not saying that social impairment would occur in every case but only “in some cases” and the kind of functioning impairment “depends on the case”.  He emphasised that each case varied from other cases and as for dressing up nicely, that would only be for the severe cases.

22. As I stated above, the magistrate rejected Dr Yu’s opinion that the appellant suffered from Major Depressive Disorder.  It is not clear why she did not accept his opinion.  She did say two sentences before that that Dr Yu’s opinion was based on what the appellant had told him.  Mr Cheung submits that the magistrate erred in treating Dr Yu’s opinion as based on what the appellant had told him without appreciating or noting that Dr Yu’s opinion was also based on Dr Law’s medical records and reports, his own clinical examination findings and assessment, and other undisputed evidence and facts.

23. If Dr Yu’s opinion had been accepted by the magistrate, then the magistrate would have found that there was a high probability that because of the illness that the appellant had, at the time of the commission of the offence, the appellant might well have forgotten that she had the stolen article in one of her bags which she had not paid for.

24. In my view, on the papers before me, there were no sufficient reasons for the magistrate to have refused to accept Dr Yu’s opinion.  Furthermore, my view is that if the magistrate had analysed Dr Yu’s evidence more carefully, she would not have used part of it to lead her to the conclusion that she could not accept the appellant’s evidence.  If the appellant’s evidence or Dr Yu’s evidence or a combination of the two could have led the magistrate to have a reasonable doubt about whether she knew she had the stolen item in her bag which had not been paid for, that would have been sufficient reason for her to find the appellant not guilty.

25. In the case of R. v. Yam Chung Kai [1985] 2 HKC 44, Deputy Judge Cruden said at page 46 :

“	The sole ground of appeal was that the determination of guilt was unsafe and unsatisfactory in all the circumstances.  Those circumstance were particularised in considerable and helpful detail in the Notice of Appeal.  Where an appeal is limited to this ground, it is necessary on appeal to review the whole of the evidence in depth.  For at the end of the day the appellate determination is both exceptionally and necessarily subjective rather than objective.  The classic statement of the appellate function in an appeal of this nature is contained in the judgment of Widgery LJ in R v Copper (1968) 53 Cr App R 82, 86, where he declared :
	‘	That means that in cases of this kind the court must in the end ask itself a subjective question : whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done.  This is a reaction which may not be based strictly on the evidence as such; it is a reaction — which can be produced by the general feel of the case as the court experiences it.’
	I am mindful of the fact that this ground of appeal does not invest an appellate court with an unlimited charter.  In particular our own Court of Appeal in R v Tang Wai Tong [1979] HKLR 479, 486, has emphasised in the judgment of the Chief Justice that :
	‘	... the lurking doubt formula must be applied with great caution.  An appellate court, reading papers and not seeing witnesses in the way that a jury does, must be cautious in imposing its subjective feelings for the conclusions reached by men and women who have the advantage of seeing the witnesses and assessing their credibility.  In our view, ‘lurking doubt’ means not an insubstantial doubt but a substantial remaining doubt.’”

26. I respectfully agree with what the learned judges said in the quote above about the function of an appellate court.  I have given the matter the most careful consideration and at the end of the day, my view is that there is a lurking doubt in my mind which should result in this appeal being allowed.

27. The appeal against conviction is therefore allowed and the conviction is quashed.