HKSAR v. CHAN MEI CHU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 164 OF 1999

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J U D G M E N T

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1. The Appellant was convicted of theft by a Magistrate on 21 January 1999.

2. On 14 November 1998, at a Wellcome Supermarket in Mongkok, the Appellant took various food items, passed the cashier's counter, and went outside the supermarket without making any payment for the items. The above stated facts were common ground before the Magistrate.

3. The prosecution called two witnesses. PW1 was the security officer of the supermarket. She was on duty in plain clothes at about 10.15 am on 14 November 1998. She started to pay attention to the Appellant because the Appellant was seen by her placing three lemons that the Appellant had taken from the shelves into the Appellant's black shoulder bag hung on her right shoulder. During the course of the Appellant's stay in the supermarket, PW1 noticed that before she placed various items taken by her from the shelves into her shoulder bag, she looked around first. That happened on five occasions. Altogether the Appellant stayed in the supermarket for about 10 to 15 minutes. When PW1 intercepted the Appellant at the escalator at the entrance of the shopping mall, which was about 8 feet from the entrance to the supermarket, PW1 revealed her identity to the Appellant and stated that the Appellant had taken the various items as observed by her. She asked the Appellant to follow her back to the office of the supermarket. After hearing this, the Appellant explained that she only acted on momentary greed. She told PW1 that it was her first time and asked PW1 for a chance.

4. PW2 was the police officer who attended the supermarket after PW1 called the police. The Magistrate rejected PW2's evidence and I do not think that evidence need be dealt with here.

5. The Appellant gave evidence apart from calling her own doctor. The effect of her evidence was that she was taking drugs for treatment of her tissue problems and at the material time she had also taken a cough medicine. The Appellant told the Magistrate that when she left home shortly before she was in the supermarket, she had a pot of Chinese medicine on a burning stove. The Chinese medicine was for her mentally retarded younger sister, who refused to come out with her. That was why the Appellant was in a hurry to go home and she forgot to pay for the items taken by her from the supermarket. She also said that the joint effect of the drugs for her tissues and the cough medicine caused her to be in a confused and forgetful state resulting in her forgetting to pay for the items she took. She said that she was concerned about the pot of herbs on the stove because the fire was still on and her sister, who had a phobia towards fire, was at home.

6. Dr Leung, the Appellant's doctor, told the Magistrate that the combination of piroxicam and cough mixture could affect the Appellant's concentration and also her attention to do things. He testified that the Appellant had never complained about any adverse effect from piroxicam since it was first prescribed in May 1997.

7. The Magistrate considered the evidence very thoroughly in her Statement of Findings. She reminded herself that, whether she believed the Appellant or not, it was for the prosecution to prove the charge beyond all reasonable doubt. She also took into account that the Appellant had a clear record and therefore had a less propensity to commit a crime.

8. Counsel for the Appellant argued two grounds of appeal to support his submission that the conviction was unsafe and unsatisfactory, namely,

(a) the Magistrate was wrong to draw the inference that the Appellant had the necessary mens rea and that she failed to give sufficient weight to the medical report of Dr Leung in the circumstances of the unchallenged fact that the Appellant had to rush home to take care of her retarded sister; and

(b) the Magistrate was wrong in excluding part of the expert evidence of Dr Leung as she misdirected herself in that the issue was not one of expertise in psychiatry or psychology but in the psychological effect resulting from the Appellant's medical problems.

9. Regarding ground (b) above, the Magistrate caused a phrase in Dr Leung's medical report to be deleted for the purpose of its production before her, which relates to "the psychological stress of her (the Appellant's) illness". Dr Leung admitted that he was not an expert in psychology or psychiatry, and I do not think that the Magistrate erred in excising that part of the report from being admitted in evidence. Anyhow, the effect of the medication taken by the Appellant resulting in her possible lack of concentration or attention was admitted in evidence, with little difference. I take into account that effect of the medication in my consideration of this appeal.

10. Counsel referred me to Wong Leung v R [1973] HKLR 512 which approved and adopted the ratio of R v Cooper [1969] 1 QB 267, @271F, where the English Court of Appeal stated:

"... we are indeed charged to allow an appeal against conviction if we think that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory. 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."

11. Mr Tong also referred me to The Queen v NG Wing Ming, Crim App No 280 of 1994 (5 August 1994, unreported) for the proposition that the inherent probabilities of the case should be sufficiently weighed in the scales for making a decision.

12. While the Court of Appeal operates under section 83N(1)(a) of the Criminal Procedure Ordinance, Cap 221 that "the finding of the court of trial should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory", section 119 of the Magistrates Ordinance, Cap 227 confers power on the judge hearing an appeal from the Magistrates' Court "by his order confirm, reverse or vary the magistrate's decision ... or may make such other order in the matter as he thinks just ...". If I am persuaded that the conviction was wrong, or having examined all the circumstances of the case, I feel any lurking doubt or that injustice has been done or that the conviction is unsafe or unsatisfactory, I would have no hesitation to quash the conviction.

13. The Appellant claimed that because of the medicines that she had taken shortly before she went to the supermarket, she was in a confused and forgetful state. However, she also said in evidence that she needed to buy food for lunch that day including chicken drumsticks as her sister liked chicken. She testified that she left the stove on and she was worried about her sister's safety and reaction towards fire and that was why she was hurrying home after taking the food items. The evidence was unchallenged, but in my view, could hardly support the Appellant's allegation that she only forgot to pay for the items when she saw people queuing at the cashier's counter in the supermarket. On the morning in question, the Appellant clearly remembered that the stove was on and that her sister liked chicken. She did pick up a packet of drumsticks from the shelf and put it surreptitiously into her bag, reflecting her memory that her sister liked chicken. Further, as the Magistrate found, the Appellant, who had also taken piroxicam on the day of the trial, was clear and coherent when giving evidence. Dr Leung also told the Magistrate that the Appellant had never complained to him about any side effect of the medication.

14. In all the circumstances, I do not find that the Magistrate had erred in failing to place sufficient weight on the medical report or evidence. I have not been persuaded that the Magistrate erred in any respect in her convicting the Appellant. Nor do I find the conviction unsafe or unsatisfactory. I would dismiss the appeal.