HKSAR v. WU WING SANG VYNSAN

HCMA 751/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 751 OF 2007

(ON APPEAL FROM TWCC 3074/2006)

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J U D G M E N T

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1.  The Appellant was convicted in the Magistracy after trial before Mr John Glass, on one charge of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210 – the theft being a shoplifting.  She was fined $1,500.  She appealed against conviction only.  The Appellant was represented by Mr Andrew Bruce, SC at trial and by Mr Kevin Patterson on appeal.  The Respondent was represented by Mr Raymond Cheng, S.G.C.  Judgment was reserved and is now delivered.

Background

2.  The facts of the incident were simple.  The prosecution alleged that the Appellant dishonestly stole nine food items, valued at $309, from a supermarket intending to permanently deprive the supermarket of the items.  It was not in dispute that the Appellant left the store with nine items in her bag, that they were not paid for, and that they belonged to A.S. Watson Group (HK) Ltd.

3.  PW1, the security officer, gave evidence she had seen the Appellant enter the store and take a trolley, although there was nothing about the Appellant which held her attention at that time.  Some time later she saw the Appellant take two items from the trolley which she was pushing and put them into her shopping bag.  The Appellant then moved to the frozen food section, took what was described as a bag of frozen beans and a container of fish maw soup and put them into her shopping bag directly.  She continued to move around the store for three to five minutes, walked 20 paces to the exit and then left by the exit so quickly that PW1 had to chase after her.  PW1 told the court she was unable to catch the Appellant until she had covered a distance of about 50 metres.  It appears that there was no real attempt by the Appellant to conceal what she was doing and her alleged hasty departure could be considered bizarre in that it drew immediate attention to her exit.

4.  The basis of the defence was that on the day of the alleged offence the Appellant had been suffering from a major depressive disorder; that the disorder was exacerbated by the side-effects of three tablets which she had taken for influenza symptoms; that she was tired and did not know what she was doing at the time.  She agreed that she had put the nine items into her bag in an automatic state, but had had no intention of appropriating the items, or permanently depriving the store of them.  The prosecution called one witness, a security guard (PW1) to give evidence.  The Appellant elected to give evidence and the defence called Dr Wong Chung Kwong, a psychiatrist, to give evidence about the Appellant’s mental condition.

5.  The Perfected Grounds of Appeal can be summarised as follows:-

(1)	The Magistrate erred in finding as an irresistible inference that the Appellant had the necessary mens rea for theft.
(2)	The Magistrate erred by failing to consider properly the evidence of the Appellant and the psychiatrist about the condition of the Appellant at the material time, in particular the effects the drug “Tylenol” had, or may have had, on the Appellant.  Particulars of this alleged failure were given; basically it was contended that the Magistrate had imposed his own psychiatric findings on the evidence.
(3)	The Magistrate erred in his understanding, treatment and interpretation of an admitted material inconsistency in the evidence of PW1 and this caused him to err in finding that the Appellant possessed the required intention.

6.  The discrepancy the subject of Ground 3, was occasioned because of a number of variants used by PW1 to describe how the Appellant left the store.  The manner of her leaving the store was acknowledged by the prosecution and the defence to be a factor which the Magistrate could take into account when deciding whether she had acted dishonestly.  In her witness statement, PW1 said that the Appellant left the shop “hastily”; in her evidence-in-chief, she described her as having “dashed out of the store” and in cross-examination, as having “dashed out hastily”.  The Magistrate had decided the matter on the basis that any of these words might be used interchangeably to describe the situation of “leaving the store hastily”, or “taking off at a hasty speed”.  [paras. 5 – 6 (b) and 13 of his Statement of Findings refer].  The Magistrate found eventually that the Appellant had “taken off at a hasty speed such that PW1 had had to run after her to catch her”.

7.  The Magistrate considered other inconsistencies in PW1’s evidence relating to the order in which and the places from whence the Appellant had taken items, as well as what the Appellant had said to PW1 when she was apprehended.  In her witness statement PW1 had said the Appellant asked to be allowed to pay immediately after her apprehension.  When giving evidence PW1 stated that the Appellant said nothing when apprehended, but during cross-examination, said that as she was going downstairs to the staff-room with the Appellant, the Appellant began to ask if she could pay for the goods. 

8.  The Magistrate declared that PW1 was wrong and went on to give his account of what he “believed” had happened.  The Magistrate found [para. 6(c)] that the Appellant had responded initially by asking to pay, but PW1 had ignored her request and led her back into the shop.  The Appellant continued to ask for time to pay all the way to the staff-room, but PW1 paid no further attention to her request, as she did not intend to allow the Appellant the opportunity to pay.  Despite PW1’s inconsistencies and changes of evidence on these points the Magistrate did not have any doubts about her credibility on “material” matters.

9.  The Magistrate purported to resolve the various discrepancies in PW1’s evidence and thereafter felt able to rely on the account given by PW1 and reject the evidence of the Appellant where he considered that it differed from that of PW1.  I accept that he had the advantage of seeing and hearing the witness and the Appellant.  Nevertheless, PW1 does not appear as a wholly satisfactory witness, given the ease with which she made changes to her account and I note that the Magistrate had to devise his own construction of what she said before he could make sense of it.

10.  The Appellant chose to give evidence and after reviewing it, the Magistrate found that he could not believe what she was saying and rejected her evidence where it conflicted with that of PW1.  He said he bore in mind the difficult personal circumstances the Appellant was experiencing at the time of the incident, such as her current divorce from a difficult husband, her indebtedness and her role as a single parent of two sons.

11.  The Magistrate in assessing the evidence of the Appellant at times substituted for what she said had happened, his own views about various matters.  He noted [para. 10] that the incident as the Appellant had described it to the psychiatrist differed from her evidence in court and cited as an example the reason she gave for going out to wander around the supermarket.  The report recorded:  “She went to Park-n Shop, a place she goes to almost daily to do her shopping and sometimes just to stroll when she feels bored [B38] (emphasis added)”.  In giving evidence in court however she did not cite boredom as the reason for her being there on that day; that had been a general comment to Dr Wong.  The Magistrate found nonetheless that this conflicted with her evidence at trial, which was that she had been forced to go out, because her young children were at home making a noise when she was feeling unwell.  At paragraph 9 he gave a detailed account of what he would have done in the same situation suggesting being that his way of doing things was more likely and at para. 10 he treated the difference between his account and the Appellant’s as an example of her not being frank. 

12.  He rejected Appellant’s assertion that she had not been aware of what she was doing until she was “awoken” by the shouts of PW1 as she chased after her.  He found the Appellant was selective in her recollection of facts and that she was using her selective memory deliberately to mislead the court and to support the psychiatric findings.  He set out a long list of things of which he found the Appellant had been aware and contrasted it with a list of items, pertinent to the elements of theft, of which she said she had no recollection at all.  The latter list related to the Appellant entering the shop; selecting items from the shelves; putting the items in her bag; what she had done in the three to five minutes after selecting items; whether she had walked past a cashier and whether she had checked her shopping bag before admitting to PW1 that she had not paid.

13.  The Magistrate rejected Dr Wong’s assessment that the Appellant was in denial about what had happened.  He believed the meetings with Dr Wong had been arranged only for the purposes of a defence at trial.  This he based, in part, on his finding that although Dr Wong had diagnosed her depressive condition and suggested prescribing for it, the Appellant had declined to do so; nor had she taken any steps thereafter to deal with her depressive disorder.  At no point did he consider the likelihood of her being unable to do so as a result of the illness itself, although Dr Wong had given evidence of that possibility.

14.  The Magistrate spent some time in assessing the psychiatric evidence.  The evidence was important because the diagnosis of the Appellant’s condition, was relevant before, at the time of and after the incident at the supermarket.  There were two elements to Dr Wong’s report about the Appellant’s state of mind – one, his general assessment of her condition as being a major depressive disorder of some years’ standing and the second the effect which the cold medication she said she had taken may have had on her state of mind at the relevant time.

15.  In that regard it is instructive to look at the dates of the events:-

(1)	The alleged offence took place on 13 November 2006.
(2)	The Appellant was interviewed by Dr Wong on 29 December 2006 and on 16 January 2007.
(3)	Dr Wong’s report was dated 27 January 2007.
(4)	The trial proceeded on the 5th, 6th and 13th June 2007 and the 25th July 2007.

16.  The Magistrate, treated Dr Wong as an expert and identified the weaknesses in his report and his conclusions given in evidence.  They were the time-gap between the alleged offence and the interviews; the absence of any previous psychiatric or medical support for the symptoms of the depressive disorder; the lack of any corroboration of the influenza symptoms; that there were no interviews with family, colleagues etc; that the material as to her previous history came from the Appellant; that the Appellant had refused treatment after being diagnosed by Dr Wong and that she had no insight into her condition.  Further, although the effects of “Tylenol” were discussed in general terms, there was no specific reference to the effects, or likely effects, of the particular dosage that the Appellant claimed to have taken.

17.  At para. 19 the Magistrate noted that Dr Wong had not dealt with the possible side-effects that one extra tablet of “Tylenol”, over and above the adult dose, might have had on the Appellant.  He then answered the question himself by stating:  “I believed this was because he found that 3 tablets was an acceptable and normal dosage for an adult.”  There was no evidence to support this belief – Dr Wong had not been asked about it specifically, it had not been referred to in his evidence and the only evidence of its effects was from the Appellant.

18.  The diagnosis of depression was based to a large extent upon matters recounted by the Appellant during her interviews; Dr Wong had agreed that if those facts were untrue, they could affect his diagnosis.  The Magistrate’s view was that Dr Wong had not taken sufficient steps to verify whether the Appellant’s background and complaints were genuine and that the report lacked independent proof that she had been suffering from the symptoms and problems claimed.

19.  It was of course open to the Magistrate to accept, or reject, all or part of Dr Wong’s evidence.  However, the Magistrate, instead of confining himself to assessing the evidence and deciding what, if any of it, he accepted, appeared to counter the psychiatric evidence, by substituting his own psychiatric analysis.  The basis on which he did so appears chiefly in paras. 8, 22, 23, 25 and 28 of his Statement of Findings.

20.  In making his own analysis the Magistrate appears to have erred by doing that which he alleged Dr Wong had done, namely, making a diagnosis about past events and behaviour from present indications.  The Magistrate did that in part by interpreting the Appellant’s behaviour and responses in the witness box at trial and from that interpretation reaching conclusions as to her likely mental condition on the day of the incident, some 9 months earlier.

21.  At para. 21 the Magistrate rejected Dr Wong’s assessment of the time the depressive disorder had existed as 4 – 5 years and asserted that “she had only had her symptoms for several years”.  The Appellant had described various symptoms as dating from the birth of her elder son; it was Dr Wong who identified them as symptoms of depression in his report.  Para. 15 of Dr Wong’s report begins “Until several years ago …” and then continues with a general account of her progress towards depression.  When cross-examined, Dr Wong referred to her condition as having existed “for a few years”.  [B126 L – M] It is difficult to see a significant difference between the descriptions of the two periods and the point was not pursued at trial, yet the Magistrate cited this difference as one of his reasons for rejecting Dr Wong’s evidence. 

22.  He also rejected Dr Wong’s opinion about the Appellant’s continuing memory retention problems “as I found it clear from her evidence that she did not have such a problem as she could recall the questions long enough to give good answers …”.  The questions referred to were those the Appellant was answering in court some 9 months after the incident, so this conclusion was not helpful in diagnosing her possible state of mind at the relevant time.

23.  At para. 25 he stated “there was also no conceivable slowdown of the whole person as referred to in Dr Wong’s report, and I found that she certainly was not in a cloud.”  The Magistrate was making a judgment about the Appellant’s mental condition at the time she gave evidence, 9 months after the report, rather than at the time she allegedly stole the items.

24.  At para. 26 the Magistrate concluded his assessment by stating:

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if the defendant had this ability to think, recall, respond and stay focused throughout her evidence during a time in which she had the added stress of the trial, she could not be said to be in the condition that Dr Wong diagnosed.  I found that if that was the case then she could also not be said to have been suffering from a continuous mode of very major depressive disorder for one year, or even a continuous two-week period of such.  I rejected the assertion that she could be in a situation of relapse, as I found the pressures were at their highest upon the defendant during the trial.”

25.  His assessment of the evidence overall showed that he was looking at the Appellant’s demeanour nine months after the alleged offence, assessing her mental state at the time of trial, comparing it with Dr Wong’s report of December 2006 and then, where he rejected parts of that evidence, filling any gaps with his own psychiatric analysis.  His proper focus should have been her state of mind and psychiatric condition as it was, or might have been, at the time of the incident.

26.  The manner in which the Magistrate assessed the psychiatric evidence, indicated that rather than assessing what value it had, if any at all, he endeavoured, apparently, to counter Dr Wong’s opinion with his own diagnosis based on his observations at trial.  In all the circumstances I cannot be certain that the Magistrate directed his attention sufficiently to the Appellant’s intention at the time of the alleged offence.  Nor can I be certain from his findings that the inference he drew as to her state of mind was the only reasonable inference that could have been drawn from the evidence before him.  Accordingly, I allow this appeal and quash the conviction and sentence.