HKSAR v. CHAN SIU YIN

HCMA 314/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 314 OF 2003

(ON APPEAL FROM ESCC 2965 OF 2002)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210. The Appellant was represented by counsel. On 19 November 2002 she was sentenced to a fine of $1,500.00. The Appellant appeals today against conviction only.

2. The facts about the taking of items at the supermarket where the offence occurred, were not in issue and were placed before the court by way of Admitted Facts. A female security guard on duty saw the Appellant, who was carrying a handbag on her shoulder, pushing a trolley in the supermarket. She took a number of toiletries and other items from different display racks and put them into the trolley. Then she pushed the trolley to the corner near the entrance of the supermarket and put the seven items specified in the charge into her handbag. After that, the Appellant was seen to take paper rolls, coconut, roasted meat, biscuits and drinks, put them in her trolley and pay for them at the cashier counter. She did not pay for the items that she put in her handbag. She left the supermarket and was stopped by the security guard. The case was reported to the police. The police constable who came to the scene told her that she was being arrested for 'shop theft'. He cautioned her, at which point the Appellant said "Ah Sir, I am sorry. I did it due to momentary greed. Please give me a chance. I dare not do it in the future." That admission was made at about 11.05 a.m.

3. A further statement was made an hour and a half later. At 12.25 p.m. the Appellant said that she wanted to add something to what had been recorded by the officer who noted the record. She said "I was not feeling well this morning. I had taken some flu tablets and stomach tablets which made me unable to concentrate and therefore I committed this stealing in a state of confusion."

4. The trial proceeded. Evidence was given by the Appellant. The Magistrate convicted her and adjourned sentencing to 19 November 2002 ordering a Probation Report, a Community Service Order Report, a Psychologist's Report and a Psychiatric Report. After reports were prepared counsel submitted that the sentencing should be adjourned because new evidence had been disclosed in the reports and the Appellant intended to apply for a review of the conviction.

5. Eventually a review hearing was held before the Magistrate and Defence counsel sought leave to adduce additional evidence which had not been available at trial the evidence of the clinical psychologist, who had prepared the report for sentencing. The Magistrate granted the application to adduce additional evidence and the clinical psychologist gave evidence before the Magistrate, on 24 January 2003.

6. After considering that evidence and having heard further submissions from counsel, the Magistrate was still satisfied that the Prosecution had proved the charge of theft and convicted the Appellant. An appeal against conviction was filed.

7. The appeal was first set for hearing on 23 May 2003. At that time Mr Justice Jackson ordered a transcript of the evidence given by the psychologist at the review hearing. The Appellant was advised to seek legal representation, but was unable to do so for financial reasons.

8. Various documents were put before the court on the adjourned appeal, including the Probation and Community Service Order reports, the reports of the psychiatrist and the clinical psychologist and the transcript of the psychologist's evidence. All reports confirmed that at the time of this offence, the Appellant was suffering various significant family stresses. These were exacerbated because her husband was working in China and was returning on an irregular basis to Hong Kong. The combined stresses led the Appellant to become very depressed, but she was not under treatment at the time of the offence, nor does it appear that she was on any regular medication.

9. The Magistrate questioned the psychologist with a view to ascertaining the intention of the Appellant at the time of this offence. Unsurprisingly, the psychologist's evidence, although it confirmed the depression and stresses could not reveal categorically the Appellant's state of mind. The psychologist said that she might be forgetful and forget to do something she would otherwise do. She could not give evidence any more helpful than that. The Magistrate, having examined the matter again, confirmed the original conviction.

10. The pressure on the Appellant at the time of the offence was considerable. She was caring for her 3 children aged 16, 13 and 7 years. The family lived with the Appellant's parents-in-law. Since 1996 the Appellant had been sharing the care of her mother-in-law, who was bed-ridden after a stroke and required full nursing care. In April 2001 her own mother died. Her husband had lost his job some months before this incident and was working in China. He came back irregularly and the Appellant found it a great strain coping on her own. She had fears, apparently unfounded, that her husband might have an affair.

11. Physically she suffered various somatic complaints. She had a disturbed sleeping pattern and a poor appetite. She had few friends or social contacts. She had woken feeling drowsy and confused on the morning of the episode. The psychiatrist considered the Appellant was suffering a depressive episode and said the stealing appeared to be a cry for help.

12. Although I am satisfied that the Magistrate dealt with this case carefully, it was unfortunate that the evidence of the psychiatrist and the psychologist was not available for consideration by the Magistrate as part of the defence case.

13. If that evidence had been available I am of the view that it would have been very difficult for the Magistrate not to have formed a reasonable doubt as to whether the Appellant had the requisite intention, particularly given the peculiarity of some of the circumstances of the taking e.g. going to a supermarket she had been patronizing for 10 odd years where she was known to staff; transferring the goods to her handbag in a place near the front of the shop; buying men's disposable underpants which her husband did not use and which she had never before purchased.

14. The Magistrate, by the time she heard the psychologist's evidence, had already convicted the Appellant and despite her careful handling of the review, that conviction would be a difficult matter to ignore. If the defence had obtained such reports for prior to the trial they could have bolstered the matters raised by the Appellant when giving evidence.

15. Having considered this matter as a whole I am of the view that it is not possible to be sure about the Appellant's intention at the time of this offence. For that reason, and without any criticism of the Magistrate, I allow this appeal. I order that the fine be refunded.