HKSAR v. Liu, Liwei

HCMA 421/2018

[2019] HKCFI 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 421 OF 2018

(ON APPEAL FROM ESCC NO 1088 OF 2018)

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J U D G M E N T

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1.The Appellant was convicted after trial of one count of theft (shoplifting) and sentenced to 14 days’ imprisonment. She is appealing her conviction and sentence (out of time). She has been granted bail pending the result of the appeal.

Prosecution case

2.The prosecution alleged that the Appellant stole: 19 boxes of medicine, 1 pair of scissors, 1 pair of nose hair clipper, 1 pair of chopsticks, 2 cups of yogurt, and 2 packs of ham. I would quote the evidence summarised by the Magistrate in his Statement of Findings:

“4. On 31 May 2017, CHAN Ching-man (PW1) was on duty in plain clothes in the department store in question. She saw that the Appellant chose 10 odd boxes of medicine in the medicine section of the supermarket and put them in the tote bag she had brought along. The Appellant’s conduct aroused the suspicion of PW1, who therefore continued observing the Appellant. At the time, the Appellant did not use the shopping cart or shopping basket provided by the supermarket. Beside her, there was a male carrying a backpack on his back.

5. The Appellant subsequently chose a pair of nose hair trimming scissors, Jinhua ham and yogurt at other parts of the supermarket, and likewise put them in her tote bag. She walked past the cashier counter in the supermarket with the said male without making payment.

6. The Appellant then proceeded to the household section of the department store and chose a pair of chopsticks. She also left the department store without making payment.

7. Eventually, the Appellant left the shopping mall where the department store was situated and sat in a park nearby. She put the items in question contained in her tote bag into the backpack (Exhibit P2) originally carried by the accompanying male on his back. At the same time, the Appellant also unpacked the Jinhua ham and consumed one of the boxes of unpaid yogurt.

8. PW1 therefore intercepted the Appellant, took her back to the department store and called the police.

9. Both parties agreed that the items in question were the property of UNY (HK) Co. Ltd, valued at HK$1912.4 in total.”

Defence case

3.The Appellant elected to give evidence.  She admitted taking the goods in question.  However, she claimed that she heard a voice speaking to her, and she saw two shadows, respectively “Cow Head” and “Horse Face” in Chinese mythology, appeared beside her.  Both shadows, holding weapons in their hands, coerced her into picking up the items in front of her while Horse Face drove her away from behind.  She denied having the intention to steal.  She also denied being accompanied by a male.

4.The defence called Dr Chow Suet-yan (“Dr Chow”) as a witness.  Dr Chow has been the Appellant’s attending psychiatrist since 2016.  She diagnosed the Appellant as having early psychosis, and she might be affected by hallucination. 

The issue at trial

5.The Magistrate identified the issue in the case was whether the Appellant had the intention to steal, that is, whether she was affected by mental illness at the material time.

The Magistrate’s reasons for conviction

6.The Magistrate was of the view that the conduct of the Appellant in the department store was of assistance in assessing the mental state of the Appellant at the time.  He accepted PW1’s observation of the Appellant as “direct, reasonable and free of inherent improbabilities.”  The Magistrate found that the Appellant was all along accompanied by a male in the supermarket and there was conversation between the two; that the Appellant had chosen goods in front of the goods shelves, at which time there was nothing unusual about her facial expression; that the Appellant only wore her tote bag when she left the supermarket; and that the backpack used later was carried by the accompanying male on his back at that time.

7.On the other hand, the Magistrate accepted the testimony of Dr Chow and her medical diagnosis of the Appellant that she had early psychosis.  The Magistrate however refused to accept that the Appellant was affected by psychosis at the material time, with reasons given at paragraphs 17-21 of his Statement of Findings.

8.The Magistrate found that the Appellant deliberately made no payment and she had intention to steal.  He was satisfied that the prosecution had proven their case beyond reasonable doubt.  The Appellant was convicted accordingly.

Grounds of appeal (against conviction)

9.Mr Cheng Huan SC, counsel for the Appellant filed Perfected Grounds of Appeal which consists of three grounds:

“Ground 1

The conviction is unsafe because the learned Magistrate erred in law in placing the burden of proof on the Appellant to prove that she was suffering from psychotic symptoms at the material time. The Appellant having discharged her evidential burden by giving evidence herself and adducing expert evidence as to the possibility of her having been affected by psychotic symptoms at the material time, the prosecution has the burden of proving beyond a reasonable doubt that the Appellant was not so affected and thus, had the requisite mens rea for theft. However, even having reminded himself that the prosecution bears the burden of proof of the offence, the learned Magistrate only recited the prosecution case on other aspects of the case but failed to consider what facts or circumstances led to his conclusion that the Appellant was not affected by psychotic symptoms at the material time.

Ground 2

The conviction is unsafe because the learned Magistrate erred in law and erred in fact in finding as an irresistible inference that the Appellant had the necessary mens rea for theft, in that he failed to properly consider the oral evidence of the Appellant and especially the expert evidence of the psychiatrist doctor about the possibility that the Appellant was suffering from psychotic symptoms at the time of the commission of the alleged offence. In particular, the learned Magistrate had given undue emphasis on the fact that the psychiatrist doctor had not examined the witness at the particular time and location of the alleged offence.

Ground 3

In all the circumstances of the case, the conviction is unsafe and/or unsatisfactory.”

10.Mr Daryanani, representing the Respondent, opposes the appeals.

Discussion

Ground 1

11.Mr Cheng SC submits that it is for the Appellant to raise an evidential burden that at the time of the offence that she was affected by her psychosis.  She had clearly discharged her evidential burden by giving evidence herself and adducing Dr Chow’s expert evidence.  It would then be for the prosecution to prove beyond reasonable doubt that the Appellant was not so affected and thus, had the requisite mens rea for theft.  However, in convicting the Appellant, the Magistrate had failed to consider sufficiently the facts or circumstances of the case in relation to the Appellant’s psychiatric condition.  In dismissing Dr Chow’s opinion, the Magistrate by saying that “[Dr Chow] did not conduct clinical diagnosis of the Appellant at the particular time and location of the offence”, had shifted the burden to the Appellant to prove that she was affected by psychotic symptoms. 

12.I agree with respect to the principles of law relating to burden and standard of proof relied upon by Mr Cheng.  However, I am afraid that I cannot accept the suggestions that the Magistrate had not sufficiently analysed the evidence or had wrongly placed the burden of proof on the Appellant.  In fact, I find that the Magistrate analysed the evidence of both the prosecution and the defence carefully and meticulously.  In his Statement of Findings, he gave detailed reasons why he disbelieved that the Appellant was affected by her mental illness at the material time: -

“17. However, I refused to accept the Appellant’s testimony. I refused to accept that the Appellant was affected by early psychosis at the material time for the following reasons:

(i) Seriousness of the illness: Dr Chow pointed out that the Appellant’s illness did not fall within the most serious category. The Appellant would not have a psychotic episode all the time. And at each follow-up, the Appellant appeared to be calm, organised, and not affected by illness. In other words, in her daily life, there would be time when the Appellant was not affected by mental illness, and was not different from normal people.

(ii) Conduct in the footage: Dr Chow also pointed out that the Appellant’s conduct in the footage was inconsistent with the reaction of being affected by early psychosis. For example, the Appellant behaved in a relaxed manner and chose goods in the supermarket. This was inconsistent with her claim that she was coerced into taking the goods and driven away by Cow Head and Horse Face at that time.

(iii) Timing of consultation: I also noted that it was not until about one year after the incident when Dr Chow made inquiries of her particularly regarding this case that the Appellant related for the first time her version of coercion by Cow Head and Horse Face. In fact, after the incident, the Appellant had had multiple opportunities to see Dr Chow for follow-ups. It was unreasonable for the Appellant not to have told Dr Chow about the instance of hallucination involving threats to her life at any of the follow-ups.

(iv) Accompanying male: The CCTV footage showed that the Appellant was accompanied by a male in the supermarket. Afterwards, the Appellant also used the backpack the male had carried on his back. This male must be connected to the Appellant. This was not hallucination either. The Appellant did not act on her own, but the Appellant’s testimony was a total denial of the appearance of this male. It was, in my view, not credible.

18. Of course, I noted that Dr Chow stated in her testimony that the Appellant “may” have been affected by her medical condition. However, for the mere reason that she had not conducted a clinical diagnosis on the Appellant immediately at the material time and location, a definite medical conclusion could not be reached.

19. With regard to findings of facts, the position was that I completely dismissed the suggestion that the Appellant was suffering from a psychotic episode, and I was not of the view her version was factually possible.”

13.It is clear from the reasons given by the Magistrate that he had very carefully considered the evidence of the defence.

14.The Magistrate is a professional magistrate well experienced in criminal law.  He spelt out clearly at paragraph 12 of his Statement of Findings that the burden of proof was on the prosecution, and the Appellant was not under any burden to prove her innocence.  At paragraph 20, Magistrate further said: “I reminded myself that my rejection of the Appellant’s testimony did not mean she was guilty. The burden of proof was borne by the prosecution throughout……” 

15.Finally at paragraph 22, the Magistrate concluded that:

“Based on the above analysis, I was sure the prosecution had proven their case beyond a reasonable doubt…”

16.In my judgment there cannot be any doubt that the Magistrate properly applied the correct standard and burden of proof.

17.Ground 1 must fail.

Ground 2

18.Mr Cheng SC submits that the Magistrate had failed to properly consider the oral evidence of the Appellant and Dr Chow, and had given undue emphasis on the fact that Dr Chow had not examined the Appellant at the material time and location of the offence. Senior Counsel seeks to rely on HKSAR v Wong Yuet Or, HCMA 548/2012. In that case, the court held that the absence of psychiatrist’s examination at the scene of the offence did not mean that the doctor’s opinion was of limited importance.

19.I have no argument with this proposition. The examination of the Appellant’s mental state at the time and location of the offence would be quite unlikely and impracticable.  The absence of such evidence should carry little weight against the Appellant.  However, the absence of psychiatrist’s examination was not one of the main reasons given at paragraph 17 (i)-(iv) of the Statement of Findings why the Magistrate disbelieved that the Appellant was affected by psychosis.  

20.The Magistrate of course was not suggesting that Dr Chow’s evidence was not reliable.  On the contrary, he stated clearly that he accepted the testimony of Dr Chow and her medical diagnosis of the Appellant that she had early psychosis.  He had considered the mental history of the Appellant. He also acknowledged Dr Chow’s evidence that the Appellant “may” have been affected by her medical condition, but the doctor could not reach a definite conclusion because she had not conducted a clinical diagnosis on the Appellant immediately at the material time.  

21.I should also point out that Dr Chow emphasized in her medical report (Exhibit D1) at paragraph 21 that it was difficult to comment on the Appellant’s mental state at the material time of offence in a retrospective manner one year after the incident. The Magistrate referred to the absence of examination apparently to acknowledge his understanding why Dr Chow could not reach a definite medical conclusion.  I do not think that the Magistrate had drawn any adverse inference against the Appellant because she was not medically examined at the material time. 

22.It is to be noted that, as reported at paragraphs 13 and 14 of Dr Chow’s medical report in relation to the Appellant (Defence Exhibit D1), the Appellant had never mentioned about the “Cow Head, Horse Face” incident during her medical follow- ups until 25 June 2018, which was more than a year after the alleged offence. Dr Chow further said that she could only rely on the Appellant’s report most of the time for treatment decision as she had been refusing the visits of psychiatric nurse.

23.The Magistrate, bearing in mind the possibility that the Appellant might be affected by her mental illness, carefully considered the defence and rejected it for 4 main reasons set out at paragraph 17 of his Statement of Findings, in brief:

(i)   The Appellant’s illness did not fall within the most serious category;

(ii)   Dr Chow pointed out that the Appellant’s conduct in the footage was inconsistent with the reaction of being affected by early psychosis;

(iii)   The Appellant had had many early opportunities to tell Dr Chow about the incident of coercion by “Cow Head” and “Horse Face”, but she did not tell Dr Chow until one year after the incident;

(iv)   The Appellant did not act on her own, she was accompanied by a male all along in the incident. Her denial of the presence of this male was not credible.

24.Generally speaking, an appellate court would be slow to interfere with the fact finding of a magistrate and his assessment of the credibility of a witness. In the present case, the magistrate disbelieved the evidence of the Appellant. 

25.In my judgment, the Magistrate had carefully and sufficiently considered the evidence of the Appellant and Dr Chow.  The reasons he gave for disbelieving the Appellant are reasonable and convincing. For the reasons given by the Magistrate, he was fully entitled to the findings of fact as he found.

26.The principles relating to a magistracy appeal are well settled.  As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers.  The judge further noted that even if no error of the magistrate has been identified, that is not the end of the matter as the appellate court’s duty is to conduct a rehearing and to determine whether it is satisfied beyond reasonable doubt of the guilt of the Appellant. 

27.At the appeal hearing, I had the benefit of viewing the footages captured by various CCTV cameras from different angles.  I only need to note that the Appellant, as captured in the CCTV footages, was walking leisurely with another man, choosing various items of goods as an ordinary customer will do. She was talking to the man accompanying her.  Her facial expression was just natural and relaxed. There was not any facial of bodily expression that she appeared to be under any coercion to choose things and to move.  Moreover, according to PW1, the Appellant having left the supermarket unpacked and consumed some of the food she took without payment.  By way of re-hearing, I would have come to the same conclusions as the Magistrate did.

28.This ground of appeal must also fail.

29.As the first two grounds cannot be substantiated, Ground 3 which is a general ground has no basis to sustain.

30.Despite the able and persuasive submission of Mr Cheng SC, I am satisfied beyond reasonable doubt that the Appellant had the necessary mens rea to steal.

31.For the above reasons, the conviction is neither unsafe nor unsatisfactory.  The appeal against conviction must be dismissed.

Appeal against sentence

32.Mr Cheng complains that the Magistrate failed to have sufficient regard to the matters stated in the Probation Report, in particular, the mental condition of the Appellant who had been clinically diagnosed to have suffered from psychiatric disorders.Furthermore, the Magistrate erred in imposing a deterrent sentence by treating the Appellant’s explanation of her commission of the offence by her mental condition as lack of remorse, rather than considering it as a factor diminishing the Appellant’s culpability with regard to the offence.  In all the circumstances of the case, the sentence was manifestly excessive.

33.The Magistrate called for a probation report before sentence to assist him in considering the proper sentence.  The report revealed the personal background and mental history of the Appellant.  Aged 54, she was divorced and living with her aged mother.  She lived on the monthly alimony from her ex-husband. 

34.The Appellant has 4 previous similar criminal records:

(a)   20^th February 2001 - Theft  [Fined $2,000]

(b)   26^th July 2002 - Theft [Fined $2,500]

(c)   22^nd May 2007 - Theft [Probation Order 12 months]

(d)   13^th August 2008 - Theft  [2 months imprisonment suspended 3 years and fined $3,000]

35.The Magistrate cited in his Reasons for Sentence a series of sentencing authorities, including the judgment in HKSAR v Yang Yan-yun [2014] 1 HKLRD 564.  At paragraph 17 of the judgment, the Court stated:

“Tong J’s observation is correct and I entirely agree with it. It can be seen from the above sentencing authorities that the courts have invariably sentenced recidivists or persistent offenders to imprisonment or enhanced their sentences. If the item involved is very small (sic), such as daily food and beverages, and does not command a high value, the court will most likely impose a fine on a first offender. But where the case involves a repeated offender and an item exceeding $100 in value, the lowest starting point is 3 months’ imprisonment; the more similar previous convictions the defendant has, the higher the starting point will be.”

36.The Magistrate noted that the Appellant was convicted after trial, she had no remorse for this case as well as her previous offences. He considered that the only appropriate sentence was a short custodial sentence to act as a deterrent. I agree with the observation of the Magistrate.

37.The Appellant can properly be regarded as a repeated offender. It was not wrong for the Magistrate to impose an immediate custodial sentence as a deterrent sentence to protect the interest of the public.  Indeed, the Magistrate could have adopted a much higher starting point.

38.The Magistrate was no doubt aware of the Appellant’s mental condition and probably because of this reason took a relatively low starting point.  In any event, the sentence of 14 days’ imprisonment cannot be regarded as manifestly excessive or wrong in principle.

Conclusion

39.For the above reasons, the appeals against conviction and sentence are dismissed.  The Appellant is to serve the sentence immediately.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

Mr Cheng Huan SC, leading Mr Dixon Tse, instructed by Peter W K Lo & Co, for the Appellant