To Hak Kim v. The Queen

CACC000379/1981

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Coram: Liu, J. in Court.

Date of Judgment: 27th May 1981

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JUDGMENT

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1. On the 5th March, 1981, the appellant took a powder box worth $30 from Watson's Chemists in Pedder Street. It is common ground that he picked up an opened powder box, closed its lid and put it not into his side pocket but left upper pocket. The learned Magistrate found that he left the Chemists immediately.

2. The appellant is a man of a good educational background and had a responsible position in one of our banks in Hong Kong. But then greed knows of no limit. He elected to and did give evidence before the learned Magistrate. He testified that he had some enquiry to be conducted in the bank in the morning involving not less than $5,000,000. He told the learned Magistrate that he was duty-bound to unearth the cause of mistake behind the $5,000,000 affair. Before he left the bank in the morning he had the matter tidied up, and all he was left to do was to report to his superior. No sooner had he left the bank, he found himself in Watson's Chemists. He bought himself a comb and allegedly helped himself to the powder box. The appellant explained to the learned Magistrate that he was going to buy a present of perfume for his girlfriend but found the powder box attractive. He said he intended to give the powder box for a present to his girlfriend.

3. He told the learned Magistrate that his was a case of forgetfulness by reason firstly of the pressure of work in the morning and secondly of LP gas poisoning some four years ago. It was understandable that this line of excuses were received with a fair degree of skepticism as can be detected from the tenor of the Statement of Findings of the learned Magistrate's.

4. As for the first reason advanced by the appellant, it was for comment that he had the matter resolved before he left the bank. He should not therefore be under as much pressure as he claimed to have been. It seems a moot point, but it was not emphasized, as to whether or not in fact the appellant sought to call in aid the exhaustion left by such investigation. Be that as it may, the learned Magistrate thought little of the first reason so advanced by the appellant.

5. Turning to the second reason i.e. the LP gas poisoning, the learned Magistrate concluded that the matter had been clarified by the answer given by the appellant that he had become better two years after the accident. A doctor's report was sought to be produced, but for reasons not quite clear to this Court, the application was not favourably received. By consent, the report has now been brought to my attention together with the matters contained therein. The brain surgeon, Dr. Lee opined that the residual effect of gas poisoning and hypoxic damage to the brain resulted in marked depression and marked forgetfulness and very poor memory function. As far as this case is concerned, the most pertinent part of that medical opinion lies in "marked forgetfulness".

6. This is a case in which the learned Magistrate has given full and proper consideration to every facet of the evidence, and it cannot be said that he has erroneously directed himself in law or on fact. But there is no indication that this medical opinion of marked forgetfulness had been placed before the learned Magistrate. There is no telling how, if this medical opinion had been properly laid before the learned Magistrate, he would have reacted.

7. In the end, with the added material presented by consent to this Court I am left in some doubt as to whether the appellant did harbour the guilty intention to found the conviction of shoplifting. I am indebted to submissions as well from counsel for the prosecution as from counsel for the appellant. In view of my misgivings hereinbefore expressed, not without some reluctance, I allow the appeal, set aside the sentence and order that the fine, if paid, be refunded to the appellant.

Representation:

Mr. H.L. Wong instructed by K.M. Lai & Li for Appellant.

Mr. F. Whitehouse, counsel for Respondent.