HKSAR v. YEUNG SARAH SUM YEE

HCMA 576/2019

[2021] HKCFI 592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 576 OF 2019

(ON APPEAL FROM ESCC 1017 OF 2018)

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J U D G M E N T

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1.  This is an application by the Applicant for a certificate to the Court of Final Appeal, after the dismissal of her appeal against conviction for an offence of theft. Very simply put, she was charged with shop theft, and during the trial before the learned Magistrate, she called experts who testified as to her mental state at the time based on what they heard from the Applicant as to her state of mind at the time, and in their reports they repeated what the Applicant said.

2.  On appeal, the Applicant basically said that the learned Magistrate should have accepted the experts’ opinions and given weight to them as to what was her state of mind at the time and should not have considered that their evidence carried little weight.

3.  As the Respondent had pointed out during the appeal before me, the state of the law on the evidence in relation to the hearsay rule about the points raised by the Applicant, really is settled by the Court of Appeal in the case of Au Yuen-wah Gloria in 2005.  What was said by the Applicant to the various experts were admissible if they were part of the foundation of the expert opinion to which they had heard, but they were not evidence of the existence in fact of past sensations, experiences and symptoms of the patient.

4.  Now in this case, the Applicant had not given evidence, had not confirmed what she had told the experts under oath, nor had she been cross-examined on this.  So the learned Magistrate was entitled under those circumstance to consider what weight to give to the experts’ opinions.  It is a matter for the factfinder to decide what weight to give to each witness’s evidence, whether they are expert witnesses or not. 

5.  The Applicant again complained that notwithstanding the absence of testimony by her at the trial, the experts’ opinions, in relation to her past sensations, experiences and symptoms, was not devoid of any probative value.

6.  As I have said, it is for the factfinder, after analysing the experts’ opinions to decide if any weight should be given to the experts’ opinion.  I do not accept that this is point of law of great and general importance as this is well settled. 

7.  In relation to the second limb of the Notice of Motion in dealing with the Ghosh test that the Court should have taken into account the testimony of the experts.  Again I agree with Ms Chan that this is part of the first limb.  However, as the Applicant in her submission had accepted that if this is a matter of substantial and grave injustice, then it is really for her to apply to the Court of Final Appeal, it is not a question of law to be certified to the Court of Final Appeal.  So in those circumstances, the application is refused.