THE QUEEN v. TAM YING

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 235/90

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JUDGMENT

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Hon. Yang, C.J.:

1. The appellant was convicted after trial of stealing a pair of shoes in a department store, Marks and Spencer, at Ocean Centre, Kowloon, at about 4 p.m. on the 9th November, 1989. She now appeals against that conviction.

2. The evidence of the security guard on duty at the department store at the relevant time was as follows. He saw the appellant carrying a pair of blue suede shoes in her hands and she wore a pair of shoes of the same style as those she was carrying; she put the pair of shoes she was carrying in her hand onto the shelf and started to leave the ladies' shoes department; the security guard examined the shoes the appellant had placed on the shelf and found the sole to have been "worn a little bit and the upper surface did not look brand new and there was no label or price tag". He noticed that the appellant was at that time wandering in the vicinity and after a few minutes she left. On being questioned by the guard she said, "I understand. I forgot to replace the pair of shoes after I put it on." Under cross-examination, the guard said it was necessary to make a close examination of the two pairs of shoes "to see which was which".

3. Under caution the appellant made a statement. It is not disputed that it was a "mixed statement", partly exculpatory and partly inculpatory. In the statement she said that at about 2.30 p.m. that day she had taken some medicine including tranquillizer and was feeling drowsy; because of that she took a walk and entered Marks and Spencer to try on a few pair of shoes; at last she put on one pair; she did not know when she put on the new pair and by mistake she put the old pair back onto the shelf. She repeated that statement to the police on the way to the police station.

4. The appellant did not give evidence but called two witnesses. One was her colleague at work who said that the appellant was feeling unwell from the morning of the day in question, and at about 2.30 p.m. she saw the appellant taking a variety of medicine for stomach trouble. Half an hour later she went out for a walk and was brought to the office by the police some time after 4 p.m.

5. The appellant's doctor gave evidence to the effect that he had seen her on the 7th November for a mild form of gastritis which might be anxiety related. He prescribed a minor tranquillizer which "would have the effect of tranquillizing with drowsiness depending on the individual" There is a possibility that this medicine would cause a hypnotic effect, an illusion that the patient does not know what he is doing. Because it could cause drowsiness and confusion the illusion would be as a result of drowsiness "like dreaming, but a more appropriate term would be confusion, e.g. I would not recommend driving a car or operating machine nor anything requiring great attention". The onset of drowsiness is very slow, taking up to eight hours to peak effect and more than a day for complete effect to go away.

6. The doctor went on to say that he saw the appellant again on the 10th November complaining of having had side effect of drowsiness and finding it very hard to concentrate at work.

7. The learned trial magistrate considered the medical evidence and came to the view that the mere fact that the appellant's mind was affected by medicine so that she acted in a way that she would not have done had she not taken it did not assist her at all provided the prosecution proved the necessary dishonest intention. He relied on Sheeham and Moore (1975) 60 Cr. App. Rep. 308 for this proposition, and ruled that the prosecution had disproved the appellant's claim of lack of dishonest intention.

8. It seems to me that this is not a case similar to that of Sheeham and Moore. The question here is whether the appellant's mind was so confused that she had neither an honest nor dishonest intent. The magistrate recognized that her defence was one of mistake or forgetfulness, but dismissed it on the basis that a new pair of shoes would feel quite differently on someone's feet than an old pair of shoes. He did not consider whether the medical evidence showed that she might have been so confused as to make a genuine mistake.

9. Her alleged forgetfulness or mistake was stated in her cautioned statement the whole of which the magistrate ought to have admitted and considered. It is partly incriminating in that she admitted taking the shoes and partly exculpatory in that she thought she had made a mistake.

10. In his decision the magistrate also found that the man in the street would say that a person who exchanged old shoes for new, as the appellant had done, was clearly acting dishonestly. This statement is of course not in accordance with the judgment of Lord Lane C.J. R v Ghosh (1982) 2 All E.R. 689, where he ruled (at p. 690) that "the test was first whether the accused's actions had been dishonest according to the ordinary standards of reasonable and honest people and if so, whether the accused himself had realised that his actions were, according to those standards, dishonest". In the circumstances of this case, it became a matter for consideration whether the appellant's mind was so confused that she might have thought she was putting back onto the shelf the new pair of shoes whilst wearing her own old pair of shoes.

11. For the reasons discussed above, the conviction is in my judgment unsafe and unsatisfactory. The appeal is accordingly allowed, the conviction quashed and sentence set aside.