HKSAR v. Ng Ka Ching Tramy

HCMA000643/2002

HCMA 643/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 643 OF 2002

(ON APPEAL FROM WSCC 565/2002)

____________

____________

Coram: Deputy High Court Judge Wong in Court

Date of Hearing: 2 October 2002

Date of Handing Down Judgment: 17 October 2002

_______________

J U D G M E N T

_______________

1.The appellant, a 23 year-old female, was convicted after trial before a magistrate of one charge of theft and another charge of obtaining property by deception contrary to s. 9 and s. 17(1) of the Theft Ordinance, Cap. 210. The magistrate ordered her to be placed on probation for a period of 12 months. She appeals against conviction.

2.The facts were simple and not in dispute. All the evidence was admitted by agreement pursuant to s. 65C of the Criminal Procedure Ordinance, Cap. 221. No live witnesses were called to testify. The appellant was an employee of a school and on 20 February 2002 she stole a wallet from one of her colleagues. She immediately dashed off to an electrical shop in Causeway Bay and using the colleague's credit card taken from the wallet she purchased a "Sony" PDA to the value of HK$3,980.00. When her colleague contacted her by phone later in the day, she told her what happened and advised her to report to the police

3.After her arrest, she was examined altogether by four psychiatrists and a total of six reports were obtained. All the reports show that the appellant had a history of psychiatric problems dating back to June 2000. Dr Yeung Sau-heung, Psychiatrist of Eastern Hospital, examined the appellant on three occasions on 19 March 2002, 22 March 2002 and 22 April 2002 respectively. This doctor confirmed that the appellant was suffering from major depressive disorder with psychotic features which was in partial remission. Dr Yeung Wai Song, Senior Psychiatrist, also of Eastern Hospital, examined the appellant on 26 April 2002. He formed the same view as Dr Yeung Sau-heung and said in the last paragraph of his report:-

"In conclusion, Ms Ng was suffering from depression which was partially improved. At material time of the offence, she was under the influence of psychiatric symptoms."

4.Two further psychiatric reports were ordered by a magistrate in Western Magistracy when the case was first brought before that court. These reports were prepared by Dr Grace Chan and Dr Pang Pui-fai, both visiting psychiatrists of Siu Lam Psychiatric Centre and both reports were dated 23 May 2002. Dr Pang's report commenced in these terms:-

"This report was compiled at the request of Mr Tong Man, Magistrate of Western Magistracy. I have interviewed Ng during her remand at the Siu Lam Psychiatric Centre. Police's brief facts of case and her old psychiatric records are available as reference."

He concluded by saying this:-

"In sum, Ng is suffering from a recurrent depressive disorder. There is evidence to suggest a temporal relationship between the mental illness and occurrence of the alleged offence. She was likely to be depressed and psychotic around the material time of the offence. Her judgment may be modified by the psychotic experience like the commanding hallucinatory voice in her case. Having said so, the ability to form intent shall not be completely compromised."

5.On the other hand, Dr Grace Chan, the other visiting psychiatrist of Siu Lam Psychiatric Centre, took a different view from her three fellow psychiatrists. In view of the fact that her opinion was preferred by the magistrate, it is necessary to set out her report in some detail. She began with by saying that she examined the defendant during her remand at Siu Lam Psychiatric Centre and perused the brief facts of the case. She had also read the psychiatric reports prepared by the other doctors. I will start from paragraph 4 until the end of the report at paragraph 10. These read:

"4. Of the index offence, she admitted that she had taken the victim's wallet out of greed. She also used the victim's credit card and made purchase. She was fully aware of what she did in the course of the offence and its criminal consequence.

5. She also told me that the victim rang her up and informed her about her missing the wallet. She was able to advise her to report the case to the Police and the card centres. After that, she rushed to the shop and bought the goods mentioned in the offence. She gave a sense of competitive enthusiasm. She heard an imaginary voice, recognised as her own voice speak from outside and hold an argument as if between the devil and the angel whether she should or could commit the offence, and which she eventually did.

6. I learnt from defendant that she had mentioned about some paranoid symptoms as early as February when she joined the school. She felt she was conspired and her colleagues were thought of having some wicked intention on her.

7. Present Mental State Examination: Defendant was upset and depressed during the early phase of her remand in this Centre. She gradually became calm, emotionally composed and her mood lifted. She showed some anxiety about the trial, otherwise, she was free from any active psychosis. There was no question to her intelligence and cognitive functions.

8. Opinion: Defendant is said to have a recurrent depressive illness. Her present mental condition has been stabilized. Hospital treatment is not indicated. She should return to the outpatient clinic for further management.

9. As for the index offence, it is difficult and probably beyond my position to ascertain the facts. However, on mental assessment, she is believed to be of a mentally sound mind and fully aware of what she was doing at the material time of the offence.

10. She is mentally fit to plead."

6.It is clear from his Statement of Findings that the magistrate relied on Dr Chan's report as the basis for finding the appellant guilty. In paragraphs 10 and 11, the magistrate said:-

"In the psychiatric report dated 21 May 2002 (p. 20), Dr Grace Chan stated in paragraph 4 therein that "Of the index offence, she admitted that she had taken the victim's wallet out of greed. She also used the victim's credit card and made purchase. She was fully aware of what she did in the course of the offence and its criminal consequence.

11. Having considered all the evidence carefully, I was sure that the defendant knew she had no legal right to steal PW1's property and PW1 did not consent. I found that she realized what she was doing at the material time was dishonest according to the standards of ordinary decent people......"

With respect, the magistrate had not considered all the evidence that he said he had. Paragraph 4 of Dr Chan's report in itself could not prove the offence in the light of the defence raised. The vital point to consider is whether she was acting in the way that she did because she was under the compulsion or imagination that she was suffering at the time of the commission of the offence. The magistrate was under a duty to give reasons why, if he chose to completely ignore the opinions of three equally qualified psychiatrists. There is no evidence that Dr Chan is better qualified or more experienced than the other three. An unfortunate aspect of this case has been that none of the doctors had been called to give viva voce evidence so that their opinions could be elucidated and tested in cross-examination. Be that as it may, even Dr Chan's evidence is accepted, this is still insufficient to prove the charges. Any expert opinion should relate to the facts. In paragraph 9 of her report, Dr Chan stated:-

"As for the index offence, it is difficult and probably beyond my position to ascertain the facts. However, on mental assessment, she is believed to be of a mentally sound mind and fully aware of what she was doing at the material time of the offence."

From this passage, it is not possible to say what were the facts she had relied on to reach her conclusion. The appellant said the same thing to Dr Pang Pui-fai that she stole the wallet out of greed but Dr Pang had not drawn any adverse conclusion against her in the way Dr Chan did.

7.Facing the situation that he did, the magistrate should have considered all the expert evidence and decided if the defence of lack of mens rea was a good one. If he had adopted this course, he might probably come to the view that there was a reasonable doubt and acquitted the appellant on this basis.

8.For these reasons, the conviction cannot be regarded as safe and satisfactory. Accordingly, the appeal succeeds. The conviction is quashed and the probation order set aside.

Representation:

Ms Polly Wan, Senior Government Counsel, for HKSAR

Mr Bernard Chung, instructed by the Director of Legal Aid, for the Defendant