HKSAR v. Yeung Sarah Sum Yee

HCMA 576/2019

[2021] HKCFI 94

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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Before: The Honourable Madam Justice Toh in Court

Date of Hearing: 29 September 2020

Date of Judgment: 18 January 2021

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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 charge of theft. She appeals against the conviction and she was represented by Mr Cheung of counsel.

PROSECUTION CASE

2.On 15 April 2018, shortly before 3:00 pm, the Appellant was intercepted outside the M&S Store by PC 22936 (“PW1”) and PC 23696.  Inside a black rucksack and 2 recycle bags that the Appellant was carrying, was found the following unpaid items from M&S, with a total value of HK$5,085.  They were:

(1)  7 bags[1];

(2)  6 packs of salad and 4 packs of calamari rings;

(3)  9 pairs of trousers[2];

(4)  5 items of clothes[3]; and

(5)  1 skirt[4].

The Appellant was then arrested for the offence of theft and cautioned.  And as the learned Magistrate noted the Appellant had a clear record prior to the offence.

3.Evidence given by a security guard of M&S, Pang Siu Kei (“PW4”) was that she saw the Defendant / Appellant carrying a lot of clothes with clothes hangers while carrying a rucksack and 2 recycle bags.  She saw the Appellant then put 2 to 3 pieces of clothes inside the recycle bag.  So PW4 continued to observe the Appellant and saw the Appellant took some clothes, walked back to the rack and came out with empty hangers.  And it appeared to PW4 that the recycle bag that the Appellant was carrying appeared loaded.  The Appellant was later also observed going to the womenswear division and took some tops and bottoms.  She then proceeded to the fish tank near the clothing racks, and when she appeared again, the clothes were gone and the recycle bag was loaded.  The Appellant continued to shop and also took some clothes to the fitting room but when she came out again, it appeared to PW4 that her rucksack appeared more loaded.  At that instant, PW4 reported the matter to the manager, who reported to the police.  The Appellant subsequently made 2 interview records under caution in which she admitted to stealing the items for personal use.  The defence challenged the admissibility of the interview records as having been obtained as a result of inducement, oppression and/or threat.

4.The defence challenged the admissibility by asserting that after her arrest, she was told repeatedly to be co-operative. She was not allowed any form of privacy when she went to the toilet at the Central police station.  And that she was told by the PC 16093 (“PW2”) that if she admitted to the offence, she could go home immediately, and that otherwise she will be sent to jail for 10 years.  And that it was PW2 who suggested that she admitted she stole the goods out of greed for personal use.  And that WPC 10285 (“PW5”) had further induced her by saying that if she agreed to be bind over, then she would not need to go to jail and that PW5 would dictate what she should write.   The full allegation can be seen in the Statement of Findings at paragraph 14.

DEFENCE CASE

5.The Appellant elected not to give evidence but called 2 psychiatrists as expert witnesses.  And Dr Cheung was of the opinion that the Appellant had no intention to commit the crime as she was in the “absent-minded state”.  Dr Li said the Appellant was suffering from “active symptom of depression, reduced concentration which is a known symptom of depression”.

6.The learned Magistrate considered the defence’s allegation as far as admissibility was concerned, and found that the evidence of the prosecution witnesses was credible, and therefore he accepted their evidence as to how the records of interview came about, and he did not accept the defence’s allegation that there were threats and inducement made to the Appellant prior to the interviews, and so found that the interviews were under caution were voluntary and admissible. 

7.The learned Magistrate also considered that the evidence of Dr Cheung that the Appellant was absent-minded was not based on any factual basis, and therefore he did not accept the evidence of Dr Cheung. As for Dr Li’s evidence, the learned Magistrate considered that it was for the Court to determine if the Appellant had the necessary intent and the learned Magistrate did not accept Dr Li’s opinion that it was her depression which caused her to act in the way she did.  So at the end of the day, the learned Magistrate dismissed the experts evidence and considered that at the relevant time, the Appellant did have the intention to steal.  Based on the evidence of PW4 who noticed the action of the Appellant at the time, and the CCTV evidence on video[5], showing the Appellant rearranged the clothes in the bag and all that showed to the learned Magistrate that the Appellant was committing the theft not as a random act, and therefore that she purposely did not intend to pay for the items she had taken, and she had also admitted the same in her record of interview.  The learned Magistrate found that the prosecution witnesses were all honest and reliable in their evidence and therefore convicted the Appellant of the charge.

GROUNDS OF APPEAL 

8.The Appellant filed Perfected Grounds of Appeal and subsequently her counsel, Mr Cheung filed an Amended Perfected Grounds of Appeal on 2 July 2020.  The Perfected Grounds of Appeal and the Amended Perfected Grounds of Appeal were largely similar apart from the addition of a few points.  I am grateful to counsel for the Respondent, Ms Chan, for summarizing and paraphrasing these grounds as the grounds that were filed by the Appellant and a counsel let the necessary focus of what is a perfected grounds of appeal should have.  The Perfected Grounds of Appeal as paraphrased by Ms Chan are the followings:

(a)  The Statement of Findings is inadequate rending the conviction unsafe and unsatisfactory, because the Magistrate had failed to assess the evidence of a defence witness Miss Ng (“Ground 1”);

(b)  The Magistrate’s rejection of the defence that the Appellant was absent-minded at the time of the defence, on the sole reliance of the prosecution evidence, was not factually well and legally sustainable.  It is because the learned Magistrate erred in law in not considering what the Appellant related to the doctors about her state of mind at the time of the offence, which could form the factual basis of the doctors’ opinion, notwithstanding the Appellant had not testify on the general issue. Such evidence could be given by a doctor, according to the High Court of Australia case R v Gordon[6] which made the original evidence without the need of confirmation in the witness box (“Ground 2”);

(c)  The learned Magistrate had erred in admitting the two records of interviews (“Ground 3”), because the learned Magistrate had declined to reject the evidence of the police officers despite the deficiency in their evidence and that the learned Magistrate had erred to properly considered that the 2^nd record of interview last over 3 hours and continued into the small hours of the morning, and finally that the learned Magistrate was wrong in quoting the case of HKSAR v Chan Wai-keung[7] to draw the conclusion that the 2^nd record of the interview was not obtained in breach of Principle (d) and Rule III(b) of the Rules and Directions and the case of HKSAR v Kwan Tsz Ngon[8] is applicable in the present case.

9.Mr Cheung on appeal withdrew Ground 1 of his Amended Perfected Grounds of Appeal which was a wise decision as it was totally misconceived.

10.Mr Cheung then went on to submit that the learned Magistrate had failed to address the dishonesty issue and the intention to permanently deprive issue.  It is clear from the learned Magistrate’s Statement of Findings that his mind was fully focus on the issue of intact and dishonesty.  As Ms Chan pointed out it is clear the learned Magistrate went to great length to dissect the evidence as disclosed by PW4 of what she observed the Appellant as having done throughout the time when she was in the shop, and how that she, for example, would take items of clothes, go behind, at one stage, a fish tank, and emerged without the items of clothes, however, the bags that she was carrying appeared more loaded.  Certainly it was not an issue that had escaped the mind of the learned Magistrate at all.  And in fact it was the only issue in the case.  As the Appellant had chosen not to give evidence, the learned Magistrate can only, therefore, relied on the circumstances as disclosed by PW4, and ultimately also considered the evidence of the psychiatric specialists that were called by the defence.  Again the defence’s psychiatrists were unimpressive to say the least and the learned Magistrate concluded that their evidence that the Appellant was “absent-minded” and that she was unable to form the necessary intent to commit the theft was totally without foundation.

11.As for the assertion that the learned Magistrate should have accepted what the Appellant told the doctors as evidence in the case, is an entirely misconceived point as Ms Chan correctly pointed out, the doctors were allowed to give evidence as to what each of them were told by the Appellant, as they form the basis for their opinion.  However, this does not make the evidence that they have given what the Appellant had told them as admissible evidence having come from the Appellant in the witness box.  The evidence of the doctors as to what the Appellant told them, if only admissible, to explain the basis upon which the doctors had based to their opinion.  I therefore cannot see any merit in the Grounds of Appeal in relation to the learned Magistrate’s handling of the psychiatric evidence and also as to his conclusion at the end of day that the only reasonable influence from the evidence of PW4 was that the Appellant certainly had the necessary intent to walk out of the shop without paying.

12.As Ms Chan correctly pointed out in her submission, the case relied upon by the Appellant, R v Gordon[9] that the statement made to a psychiatrist maybe themselves original evidence and hence they need no confirmation in the witness box.  As Ms Chan submitted statements made to a witness by a 3^rd party in this regard, are not excluded by the hearsay rule when they are put in the evidence solely to prove the state of mind either of the maker of the statement or of a person to whom it was made (rather than proving the truth of what the statement maker said).  And this principle can be found in Bruce & McCoy, Criminal Evidence in Hong Kong (Division VI).  As the Court of Appeal said in HKSAR v Au Yuen-wah Gloria[10],  that statements made to an expert witness were admissible if they were the foundation, or part of the foundation, of the expert opinion to which she testified, but they were not evidence of the existence in fact of past sensations, experiences and symptoms of the patient.  If the man whom he examined refuses to confirm in the witness box what he said in the consulting room, the expert opinion might have little or no value, for part of the basis of it had gone.  Thus, I must agree with Ms Chan that serving statement made to the doctors by the Appellant without the Appellant herself giving evidence at the trial, were inadmissible to prove the truth of her state of mind at the time of the offence.  Therefore, on the evidence before the learned Magistrate, he was entitled to find that the factual basis of the expert opinion, namely, Dr Cheung’s observation that the Appellant was taking random items, and Dr Li’s observation that the Appellant walked around the store aimlessly were not present.  Therefore, the learned Magistrate was not wrong in rejecting the opinions of both experts that the Appellant was absent-minded without intention to steal or was so depressed that she could not form an intention to steal at the time of the offence.

13.Finally, Mr Cheung submitted that the learned Magistrate should not have found the record of interview admissible in that by the time of the 2^nd interview, the police should have informed the Appellant that she may beprosecuted and they did not do so, thus offending Rule III(b) of the Rules and Directions for the Questioning of Suspect and the Taking of Statements.  Again, as Ms Chan pointed out, it is trite that the police had a duty to ensure that what the Appellant was admitting to, was in fact, to stealing all the items that they had found, and so it was incumbent upon them to make clarification prior to charging or informing the Appellant that she would be prosecuted, and giving an opportunity to the Appellant to explain further.  As to the complaint that the 2^nd interview took over 3 hours without any break, Ms Chan validly pointed out this was not a point that was raised before the learned Magistrate in the voir dire when the Appellant gave evidence, she did not say that the duration of the interview had caused her any distress or that it was unfair, and the Appellant was represented by senior counsel in the court below.  As the learned Magistrate said in his Statement of Findings at paragraph 29:

“29. … in Chan Wai-keung, Deputy Judge McMahon discussed when enough evidence has been obtained to warrant the charging of the suspect. From para. 10 to 15 of the judgment, he stated that this rule does not bar police from making full investigation enquiry. Also, police are entitled to ask reasonable questions and make further enquiries even when there was admission.

30. In para. 15, Deputy Judge McMahon said:

“Accordingly, a police officer is not required to terminate an interview and proceed to comply with the provisions of principle (d) simply because a suspect answers a particular question in a way which, on its face, amounts to an admission to an offence. In my view the interviewing officer is entitled to make further inquiries so as to place that admission in a proper and fair context and to determine the scope and nature of the offence in respect of which the suspect is making admissions so as to be able to conclude he has enough evidence to properly charge, or to express accurately what offence the suspect may be prosecuted for. Principle (d) is not designed, as I say, to obstruct proper and fair police enquires, so far as those enquiries relate to matters of investigation. That was what was said by the Court of Appeal in R. v. Lai Kin Ming [1984] HKC 1, and so far as I have been informed in this appeal is still the law.” ”

That I also find this ground is to be unmeritorious.

14.What is also worth noting is that as Ms Chan said in her Supplemental Submissions, the Appellant had said that the learned Magistrate should not have relied on the record of interview because Dr Cheung was of the opinion that the interview records were not reliable because a depressed patient might admit guilt because of self-punishment or want to punish others, even though this person was not guilty. However, as Ms Chan pointed out, the evidence of the Appellant in the special issue never averted to that, rather the Appellant said she admitted the guilt because of the inducement and pressure applied by the police.  Therefore, the learned Magistrate was entirely correct in rejecting Dr Cheung’s evidence.

15.Ms Chan also correctly pointed out that in relation to the Ghosh test as submitted by Mr Cheung, the learned Magistrate had dealt with the test in Ghosh in that based on the Appellant’s admission, she said she stole the items.  It is to be noticed that at trial, senior counsel for the defence had raised no issue about the test of dishonesty, and the matter was not argued before the learned Magistrate, be that as it may,as I have said, the intent of the Appellant, at the time of stealing was uppermost in the learned Magistrate’s mind, and he had correctly based on the fact before him, considered that at the time of the stealing, the Appellant had by her actions, displayed her dishonesty and had the intention to permanently deprive.

16.The appeal is therefore dismissed.

Ms Crystal Chan, SPP (Ag.) of the Department of Justice, for the Respondent

Mr Jeremy Cheung, instructed by Fan Wong & Tso, for the Appellant