HKSAR v. Chan Sze Pui, Gloria

HCMA001056/2003

HCMA1056/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1056 OF 2003

(ON APPEAL FROM KCCC 9142/2003)

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Coram: Hon Gall J in Court

Date of Hearing: 5 March 2004

Date of Judgment: 12 March 2004

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J U D G M E N T

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1.On 25 September 2003 the appellant was convicted by Magistrate, Mr Stephen Smout, of one charge of theft and was sentenced on the same day to a fine of $3,000. She now appeals that conviction.

2.The facts were agreed. On 14 May 2003 at about 7 p.m., a security officer of HMV Media (HK) Limited in a shop at Tsimshatsui was on duty inside the video-recording room of the premises. Through closed circuit television facilities installed at the premises he saw the appellant take a box of digital video discs from one of the display racks on the 2/F of the shop. The appellant then removed the white rectangular price label from the box of digital video discs and took a second box of discs with the same title but for an earlier season and removed the white price label from that box. The appellant then attached the cheaper price label on the box that had previously held the more expensive label. The appellant put the box (that had had the cheaper price label on it) back on the display rack and took the now mispriced labelled box to the cashier where she paid the sum shown on the price label that she had transferred from another box. The box of discs was placed in a shopping bag given to the appellant together with a receipt. The appellant then left the shop.

3.Security officers of the shop in uniform stopped the appellant outside the entrance of the shop at about 7:07 p.m. and took her bag to the G/F lobby of the shop. Upon the request of one of the security officers the appellant handed over to him the shopping bag containing the box of video discs with the transferred label attached to it and the receipt. The case was reported to the police.

4.It is submitted that before the police arrived, one of the security officers said to the appellant :

"It is wrong for you to switch the labels of the DVDs belonged to our shop. According to the rule of our shop that we must report the case to the police."

In reply, the appellant stated :

"Give me a chance. I am willing to repay."

The police arrived and at 7:25 p.m. the police arrested the appellant for the offence of theft. She was cautioned, and under caution she said :

"Ah Sir, would you give me a chance? I can repay money to HMV."

5.The magistrate had the benefit of viewing the close circuit television tape which had been recorded showing the actions of the appellant.

6.The appellant had a clear record.

7.The appellant gave evidence. She testified that she was a well-paid sales development manager. At the time she was on her way to attend a course, and as she had some spare time she went into the shop to browse. She picked up the box of discs on the 2/F and heard a loud voice in her mind saying in both English and Cantonese : "Why are the labels different?" She testified that she felt very frightened as she had heard voices before. She said she tried to rid herself of the voices by counting to 10 but the voice continued : "Why don't you change the labels, you should change the labels." The voice became louder and louder until she could not resist it. She scratched off the label from one of the discs. Then she tore off the label from another disc and put it on the first. She put down one of the discs. The voice had not stopped and was now saying to her : "You should take control, take control." She then approached the cashier and paid for the disc in her hand. She left the store but after several steps, turned around and walked for a while in the opposite direction. She was confused, she said, and could still hear the voice saying "you should take control" repeatedly. She was intercepted by HMV security staff. She said she had HK$1,500 in her possession and had no intention to steal.

8.On being cross-examined, she testified that the voice did not tell her which labels to change. She said she tried to resist the voice. She said she had not scratched off any other labels other than the two mentioned and that she scratched the label off the box with the label side facing downwards. She conceded that the voice did not tell her to buy the disc that she bought and that the voice told her to leave and she did not know why she went to the cashier to pay for the disc. She was aware there was a difference in the price of the two discs but denied that she had not heard voices and was motivated by a desire to save money. She said she had heard the voice more than 10 times before this incident and it frightened her before but this time it was louder. She accepted that she had not sought medical treatment for these voices before the date of the incident.

9.The appellant called an expert. He was Dr Wong Chung Kwong, a qualified psychiatrist and his evidence was accepted as that of an expert. It was his opinion that the appellant was suffering from two psychiatric disorders : obsessive-compulsive disorder and major depressive disorder. It was his view that patients suffering from obsessive-compulsive disorder found it difficult, if not impossible, to resist compulsions. It was his opinion that at the relevant time the ability of the appellant to control her thoughts, impulses and actions were severely compromised by the two psychiatric disorders. He found that her mind was over-powered by the voice-like thoughts that commanded her to change the label. It was his opinion the appellant was not feigning obsessive-compulsive disorder or depressive disorder.

10.The magistrate had this to say in his Statement of Findings :

"I have to say that, in my view, the defendant's testimony as to her mental state at the material time did not have the ring of truth to it. The voice, according to her, told her to change the labels. It did not tell her to purchase the disc; yet she did purchase it.

I have taken into account that the defendant did not dispose of the price label which she took off the disc which was purchased and which was found in her possession. I have also taken into account that she did not leave the vicinity of the shop. The latter fact is consistent not only with innocence, but also a belief that she had successfully left the shop with the item and was now out of danger of apprehension.

I have to say that I do not believe the defendant's explanation and I do not believe, as Dr Wong seems to believe, that it was chance or coincidence that a less expensive price label was attached to the disc she purchased. I have to say that I reject the thesis of Dr Wong that, at the time, she was acting under an uncontrollable irresistible compulsion.

In my view, it is significant that, although she had heard the voices before and, on occasions, been frightened by them, she never sought treatment before these events - medial treatment. I accept that there might well be obsessive and depressive features to the defendant's personality, which would not be unusual, and would account for Dr Wong's belief that she was not feigning illness.

But I have no doubt that, at the material time, she not only knew what she was doing but she was in full command of herself and her faculties, and was not acting out an uncontrollable compulsion. The videotape recording produced in evidence shows the defendant to be taking an active interest in a number of discs and she appears to be in no distress, and she has no appearance of being a person struggling with herself.

I am satisfied the defendant acted in the way she did so that she could purchase this disc at a lower price than its selling price. ...."

11.The first ground of appeal was there was before the magistrate unchallenged and uncontradicted evidence of an expert to the effect the appellant did not have the requisite state of mind or intent to steal and that the magistrate was wrong in accepting the evidence that the appellant suffered from a mental disorder and then rejecting the opinion that the appellant was at the material time acting under an uncontrollable and irresistible compulsion. Mr Harris argues that the magistrate was wrong to substitute his own subjective views of the evidence and submitted there was no valid basis for him to do so.

12.An expert is called to give testimony, both as to facts and as to his opinion on subjects within his expertise which might be out of the common knowledge and expertise of the jury or, in this case, the magistrate. Even when only one expert is called for one of the parties, a court is not compelled to accept the evidence of that expert but is entitled to accept or reject that evidence like any other, bearing in mind the whole of the evidence in the case. In this case, the evidence of the expert psychiatrist had to be considered by the magistrate to determine whether it threw any doubt upon the reasonable inference the prosecution had asked him to draw that the actions of the appellant in changing the label in the manner in which she did and paying the cheaper price were dishonest.

13.In assessing the factual content of what he saw on the closed circuit television video recording, the magistrate could not be said to have substituted his own subjective view of the evidence but was exercising the function that a jury is expected to exercise in placing expert testimony in the context of the whole of the evidence and determining, having done so, what weight could be placed upon it.

14.I find no inconsistency in the magistrate's finding that in his capacity as a juror, he observed and was satisfied that the appellant appeared to be taking an active interest in a number of discs and appeared to be in no distress and had no appearance of being a person struggling with herself and when he also found "there might well be obsessive and depressive features to the defendant's personality, which would not be unusual, and would account for Dr Wong's belief that she was not feigning illness".

15.Mr Harris further argues that the magistrate was wrong in drawing the inference of guilt from her failing to flee from the scene after leaving the premises. He did not in fact do so. Whilst he took into account she did not leave the vicinity of the shop he found it was consistent not only with innocence but also a belief she had successfully left the shop with the item and was now out of danger and apprehension. He therefore accepted there were two reasonable inferences to be drawn from that piece of evidence and whilst he does not specifically say so by drawing the two reasonable inferences he must have had in mind that in such cases only an inference in favour of the accused can be drawn.

16.At the end of the day, it was for the magistrate to make a finding of fact in respect of what had been done and what could be seen from the closed circuit television tape. He was entitled to view the evidence of the expert in the light of the whole of the evidence and to make findings as to whether the symptoms the expert said would be present and the distress that the appellant said she experienced were to be seen on the tape. The magistrate points out that the expert gave as examples of obsessive-compulsive behaviour handing-washing, checking and counting. These examples involve a persistent repetition of the obsessive-compulsive behaviour. He found that these were absent at the material time as were any signs of the distress or the attempts to control herself recounted by the appellant in her evidence.

17.I find that the magistrate carefully and properly analysed the evidence and viewed the evidence of Dr Wong in the context of that evidence. He found, having considered the expert testimony, that it did not cast doubt upon the facts which he found he was sure had been made out. The magistrate took a view he was entitled to take and there is nothing in these grounds.

18.The appeal against conviction is dismissed.

Representation:

Mr W.S. Cheung, DPGC of the Department of Justice, for HKSAR

Mr Graham Harris, instructed by Messrs H.M. Tsang & Co., for the Appellant