HKSAR v. Au Yeung Pui Yan

[English Translation — 英譯本]

HCMA 419/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 419 OF 2015

(ON APPEAL FROM TMCC 761 OF 2015)

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REASONS FOR JUDGMENT

1.The Appellant was charged with one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210. The Appellant pleaded not guilty. She was convicted after trial by Deputy Magistrate Michael Chan Pik-kiu (hereinafter as “the Magistrate”) of Tuen Mun Magistrates’ Court and sentenced to 7 months’ imprisonment. The Appellant was aggrieved by the conviction and sentence and sought to appeal against both.

2.I allow the appeal after hearing and quash the conviction and sentence. The Appellant is awarded the following: (a)the cost for the original trial and bail application pending hearing: $500(the fee paid to the Duty Lawyer Scheme) and (b)the cost for the appeal and bail application pending appeal. If the parties are not able to reach an agreement on the quantum of cost regarding (b), it will be assessed by the Registrar. Moreover, I disallow the prosecution’s application for a retrial. My reasons are stated below.

Facts

3.This case involved a shop theft but the course of which was not as simple or straightforward as an ordinary shoplifting case. The trial also took 7 days.

Prosecution case

4.It was the prosecution case that when a woman was leaving the shop of Uniqlo in V City, a shopping mall located in Tuen Mun, the alarm device went off. The first prosecution witness Lam Shu Kuen (PW1), a security officer employed by the shopping mall, intercepted the woman and asked her if she had bought any merchandise without removing the anti-theft tags. The woman opened a handbag (Exhibit P1) and there was an outer garment attached with an anti-theft tag (Exhibit P2). At that time, the woman was holding in her hand a piece of underwear of Uniqlo and a receipt for $39. The security officer notified the Uniqlo staff and later the shop manager came and told her to keep guard of the woman. The shop manager called the police. Later, the woman followed the shop manager and entered the office of Uniqlo, but PW1 did not go inside. PW1 did not identify who the woman was. Neither the shop manager or the cashier had testified in court.

5.The prosecution summonsed the deputy manager of Uniqlo to testify in court for the purpose of producing to the court a clip of video recording of the CCTV installed inside the shop. But at the end the video clip was not produced.

6.The police officers who attended the scene were the third prosecution witness (PW3) and the fourth prosecution witness (PW4). PW3 said that at that time a security officer named Lam Shu Kuen and the shop manager were with the Appellant. PW3 found that the outer garment attached with an anti-theft tag (Exhibit P2), a piece of woman underwear and a receipt for $39 were still inside the Appellant’s handbag (Exhibit P1). He arrested and cautioned the Appellant. Under caution, the Appellant said she was in “a moment of greediness” and Exhibit P2 was “taken for my own use”. PW3 later made a post record in his notebook of the confession made by the Appellant under caution.

7.PW4 said that at that time only the shop manager and the Appellant were present, and that the security officer Lam Shu Kuen took them to the staff room, but he was not sure if she had entered the room. Exhibit P2 was held in the hand of the shop manager and not found from the inside of the Appellant’s handbag.

Post-recorded cautioned statement

8.The Appellant objected to the production of the post-recorded cautioned statement. The Appellant alleged that she had not made any confession at the scene. Subsequently, the police officers told her that she had to co-operate with the police if she wanted to leave earlier, otherwise the case would be handed over to CID for investigation and that would take some time. She was in a hurry to leave the police station in order to pick up her son who was studying in K1, and as she was suffering from postnatal depression, she felt tired having taken a sedative pill at 12 noon that day. She involuntarily signed on the notebook because she wanted to leave earlier.

9.After considering the matter, the magistrate ruled that if the Appellant had made the oral confession at the scene, that confession would be voluntarily made by her. The magistrate also ruled that the Appellant voluntarily signed on the notebook and made the declaration.

Defence case

10.The Appellant testified that in the morning on the material day, she went to see a doctor (the second defence witness DW2 Doctor Lok) in a daytime clinic in Tuen Mun and obtained some medicine. Around noon, she took a sedative pill and then went shopping in Uniqlo for clothes. She chose an outer garment and an underwear. The Appellant then put the two pieces of garment at the cashier counter. The cashier took her the amount that she needed to pay and she paid accordingly. At that time, she was feeling tired. The cashier also asked her if she wanted to have a shopping bag. She replied that there was no need for a bag and she could carry the goods in her handbag. The Appellant did not pay attention to the details on the receipt. After she walked out of the shop, the anti-theft device went off and several staff of the shop went up to her and asked her if she had bought any merchandise from their shop. The Appellant said yes and handed the receipt to the shop manager. The shop manager then told the Appellant that the underwear had been “paid for”, but not the outer garment. The Appellant responded by saying that it was possible that she forgot to pay at the cashier counter. She wanted to go to the cashier counter to make enquiry but was stopped by the shop manager. The Appellant said that PW1 had never showed up.

11.DW2 Doctor Lok testified that the drugs that the Appellant had taken was Lorazepam which could cause the patient to be “drowsy”. In his medical report written in English, Doctor Lok said that if the Appellant had taken Lorazepam before she went to the shop, the sedative effect of the drugs could have an impact on the behavior of the Appellant.[1]

12.Doctor Lok confirmed that she had only seen the Appellant at 11:30 a.m. on that day and she knew nothing about the Appellant’s behavior afterwards.

Magistrate’s oral findings (re: conviction)

13.The magistrate said that the Appellant contested “many, many things” during the trial. The magistrate said that the Appellant had suggested two versions of what happened: (1) She thought she had paid for the two garments and it was the fault of the cashier who had neither collected money from her nor removed the anti-theft tag; (2) She suffered from mental illness and had taken psychotropic drug, so she forgot to pay because of her physical conditions. The magistrate ruled that the two versions could not co-exist and he rejected the Appellant’s testimony.

14.The magistrate said that there was no need for him to rely on the evidence of PW1. Neither did he need to rely on the Appellant’s verbal confession nor the post-recorded cautioned statement. He was certain that the Appellant had taken Exhibit P2 and left Uniqlo without making payment, and that was why the anti-theft device was triggered. He found the Appellant guilty of the charge.

The Statement of Findings by the magistrate (re: conviction)

15.Although the magistrate stated in the Statement of Findings that he did not need to rely on the evidence of PW1 (see paragraph 41 of the Statement of Findings), he did not state that he did not rely on the verbal confession or the post-recorded cautioned statement. The magistrate said in paragraph 44 that:

“44. As for the alleged verbal confession, I accept that PW3 is an honest and reliable witness. I reject the testimony of the Defendant. The testimony of the Defendant has not casted any doubt on PW3’s evidence. I consider PW3’s recollection of the event as accurate and reliable. His record in the police notebook was accurate and reliable. I find that there is no reasonable doubt. In other words, I am sure that after the Defendant was arrested and cautioned, she did not say to PW3 that ‘I did it in a moment of greediness and I took the garment for my own use.’” (Emphasis added by this Court)

16.Obviously, the phrase “did not say to PW3” was a slip of the pen. In the context of the text, the magistrate surely meant to say that the Appellant did make a verbal confession and that the police officer PW3 had accurately recorded the Appellant’s verbal confession.

Grounds of appeal (re: conviction)

17.Ms Lau Wan Ching, Counsel for the Appellant, put forward many grounds of appeal. Basically speaking, Ms Lau submitted that it was wrong for the magistrate to reject the testimony of the Appellant, and that there were discrepancies between the magistrate’s oral verdict and his Statement of Findings in respect of the verbal confession and post-recorded cautioned statement and other matters, thereby rendering the conviction unsafe.

Consideration of this Court

18.An appeal should be dealt with “by way of rehearing” on the evidence before the trial magistrate (if fresh evidence is held admissible by the appellate court, that will be taken into consideration too): See the case of Chou Shih Bin v HKSAR[2]. I am of the view that for facts of the case, the appellate court should give regard to the advantage of the trial magistrate for having heard and observed the witnesses in the witness box. The appellate court should not rely on the written transcripts of the case to determine whether a witness is credible and reliable: See the case of Raymond Chen v HKSAR[3]. As to the credibility and reliability of a witness, that will be a matter entirely for the trial magistrate to decide. If the trial magistrate has made a finding of fact which is unreasonable, illogical or inherently incredible, or that the trial magistrate has erroneously quoted certain important matter or that he has omitted it or failed to take it into consideration, the conviction will be unsafe.

19.The present case is unique in itself. There were discrepancies in the evidence between PW1 on one hand and PW3 and PW4 on the other hand. Was the Appellant intercepted by PW1 or not? Did that witness enter the office to tell the police officers what the Appellant was involved in?

20.To say that there was another suspect alleged to have stolen an outer garment worth about 100 dollars in the same shopping mall on the same day is too much a coincidence. It seems that PW1 should have been the person who intercepted the Appellant. However, as the magistrate did not take PW1’s testimony into consideration, I should not consider that evidence on appeal, otherwise it will be unfair to the Appellant.

21.The prosecution originally planned to produce the video clip of the CCTV to show how the Appellant reached the cashier counter to make payment. But at the end the prosecution neither produced the video clip nor called the cashier to give evidence. Therefore, there was nothing in the prosecution evidence to directly show how the Appellant made payment, or whether she had handed Exhibit P2 the outer garment and the underwear to the cashier to make payment together?

22.As the trial magistrate was sure that the Appellant had made the verbal confession at the scene to admit that she was “greedy” and that she later signed on the notebook to admit having made the confession, I do not understand why the magistrate considered that he did not need to take that confession into account. It should be noted that the confession would be the best evidence to show what was in the Appellant’s mind and whether she had the intent to steal.

23.But another more important concern is that the trial magistrate has not mentioned a single word in his Statement of Findings that he neither relied on the verbal confession nor the post-recorded statement. In the context of the Statement, it would seem that the magistrate had relied on the verbal confession and post-recorded statement. Would it mean that when the trial magistrate was writing his Statement of Findings, he considered that his verbal verdict was not sufficiently justified by reasons, and therefore he should rely on the verbal confession and post-recorded statement?

24.The trial magistrate was satisfied that the Appellant had made the confession, but I could not take the confession into account because the magistrate did not consider the confession by the Appellant, just as I could not consider PW1’s evidence in the appeal.

25.I also consider that in view of the background of the Appellant, namely she was suffering from postnatal depression and was on medication, she on one hand said that she had handed both garments to the cashier for making payment, and on the other hand that she forgot to pay due to her mental condition, it was not entirely impossible for the two versions to co-exist.

26.But most importantly, the prosecution did not adduce any evidence to show that the Appellant failed to hand Exhibit P2 to the cashier for making a payment. The cashier could have made a mistake and that possibility could not be ruled out completely. Even if the magistrate did not believe the testimony of the Appellant, he still had to consider whether the prosecution had proved their case. There being such serious discrepancies between the magistrate’s oral verdict and his written Statement of Findings, I consider the conviction unsafe. When “rehearing” the case, I could not be sure that the prosecution has proved that the Appellant had committed the offence.

27.For the reasons stated above, I allow the appeal against conviction. The conviction is hereby quashed.

Appeal against sentence

28.As I have already allowed the appeal against conviction, I originally should not deal with the sentencing in the case. However, there are matters that concern this court which I should deal with.

29.After the magistrate found the Appellant guilty of the offence on 23 June, he indicated that there was evidence during trial that the Appellant was having mental illness. He thought it was necessary to consider whether “a hospital order” should be made. Therefore, the magistrate had to call for reports from two psychiatrists. If the Appellant was allowed bail pending the psychiatrists’ reports, it would take 6 to 8 weeks and the sentencing process would be “dragged on for too long”. So the Appellant was denied bail and the case was adjourned. (See Appeal Bundle, page 79 lines G-L).

30.On 25 June, the Appellant successfully obtained bail pending sentence from Madam Justice Pang of the Court of First Instance.

31.On 20 July, the magistrate considered that even though the garment involved was only worth $149, in view of the prevalence of this type of thefts in Tuen Mun, Yuen Long and Tin Shui Wai, and that the Appellant had one similar conviction in the past, the Appellant was sentenced to immediate imprisonment for 7 months.

32.I completely fail to understand why the magistrate would consider making a “hospital order”. The Appellant is not a patient suffering from serious mental illness who would pose a danger to herself or others. There was not any basis to consider a “hospital order”. Further, it was unreasonable for the magistrate to refuse the Appellant bail pending the psychiatrist reports for the reason that the sentencing process of 6 to 8 weeks was too long.

33.Moreover, even if the Appellant has a similar conviction in the past and shoplifting is prevalent in shops in the Tuen Mun District, it would still be manifestly excessive to sentence the Appellant to 7 months’ imprisonment.

34.As the conviction has been quashed by this court, I hereby quash the 7 months’ imprisonment as well.

Application for retrial

35.The prosecution asked this Court to make an order for retrial. I consider that the case is not a serious one as the garment involved was worth $149. The Appellant was jailed for a total of 1 week because she was denied bail by the magistrate (the second time she was kept in custody was after sentencing, the Appellant’s bail application pending appeal was allowed by Mr Justice Yau of the Court of First Instance). I disallow the prosecution’s application for retrial.

Application for costs

36.The appellate party asked for the costs for the original trial, the appeal and the two bail applications, and the application for costs was not opposed by the prosecution.

37.As the Appellant was represented by the Duty Lawyer Scheme at his trial and bail application pending sentencing, she only paid $500. I award such costs to the Appellant.

38.In the subsequent appeal and bail application pending appeal, she engaged a private lawyer. I award the costs incurred in the appeal and the second bail application to the Appellant. If the quantum of the costs is not agreed, it will be assessed by the Registrar.

Edward Joshua Brook, Senior Public Prosecutor of the Department of Justice, for the HKSAR

Wan Ching Lau, Counsel instructed by the Paul W Tse & Co., for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Patrick W.S. Cheung,Barrister-at-law.