HKSAR v. Wong for Chun

HCMA 56/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 56 OF 2004

(ON APPEAL FROM ESCC 1515/2003)

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Coram: Hon Beeson J in Court

Date of Hearing: 28 April 2004

Date of Judgment: 28 April 2004

Date of Reasons for Judgment: 24 May 2004

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REASONS FOR JUDGMENT

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1.This Appellant was convicted after trial in the Magistracy of one charge of "Theft", contrary to section 9 of the Theft Ordinance, Cap. 210. He was fined $3,000 and appealed against his conviction only. The appeal was dismissed with reasons to be handed down at a later date. Those reasons follow

2.The prosecution's evidence showed this was a shop theft. The Appellant was seen to take two minor food items and put them into a plastic bag bearing the name of the store. He left the store, walking past the cashier without making payment.

3.He was stopped by the principal witness, the store security officer, who told the Appellant that he possessed unpaid items. The Appellant allegedly replied, "Please give me a chance. I did it out of a moment of greediness." A search of the plastic bags revealed the two items unpaid for, plus other items from the store for which the Appellant had paid.

4.When arrested by a police officer, the second prosecution witness, the Appellant said, "Ah Sir, give me a chance".

THE DEFENCE CASE

5.The Appellant elected to give evidence at the trial. He agreed he took the items without paying, but stated that he was not aware of doing such an act because he was feeling unwell at the time. He said he had earlier taken medicine for his chronic eczema condition, and, in addition, had taken a non-prescription medicine, Coltalin, for flu-like symptoms.

6.A second defence witness (DW2) gave evidence. He was a doctor who had been consulted by the Appellant three months after the incident. He concluded that the Appellant suffered from eczema and gave his opinion about the possible effects of the medication the Appellant claimed he had taken. DW2 said each medicine could result inter alia in drowsiness and the effects of the medicines were more serious if they were taken together.

7.The first ground of appeal was a complaint about the way the Magistrate had treated the evidence of the Appellant. He was said to have failed to give any reasons for disbelieving his testimony, had not explained why this testimony was inherently improbable and had not taken into account the main point of the defence case, which was crucial, that the Appellant's normal thought processes had been interrupted at the moment of the theft. The Magistrate, it was submitted, placed excessive weight on the apparent normality of the Appellant's behaviour before and after taking the items.

8.The second ground was that the Magistrate, had given insufficient weight or consideration to the evidence of the doctor who had been called as an expert witness.

9.The main point of the defence case, based upon the medical evidence given by DW2, was that the Appellant could have had an unfortunate cumulative reaction to the two different medications taken by him. In particular each medication contained the identical constituent, which could have caused a momentary mental "blank" or hiatus.

10.It was also submitted that the Magistrate had misunderstood the basis of the testimony given by DW2, which was not to give evidence of his medical treatment or physical examination, but to comment as an expert on the effect of the two medications.

11.The third ground was that the Magistrate failed to give appropriate consideration to the weight that should be given to the Appellant's response to the security officer and the arresting officer.

12.It was suggested that the Magistrate had ignored the fact that although the Appellant's responses were apparently normal, they could have been seen in a different light as it was possible the Appellant had been pleading with the security officer and the arresting officer, rather than admitting guilt as those responses suggested.

13.The fourth ground of appeal was a complaint that the Magistrate appeared to have accepted the testimony of the security officer as being beyond reproach when discrepancies in his evidence were not of small consequence in the context of the case. The Magistrate had placed reliance, wrongly, on PW1's evidence when discrepancies may have cast doubt on his veracity.

14.Mr Mitchell-Heggs, who appeared for the Appellant in these proceedings, was also the trial counsel, and this court had the advantage not only of the Magistrate's Statement of Findings, but the full transcript of the trial to which reference could be made.

15.This was a simple shop theft. The only feature of the evidence which was slightly unusual was the calling of the doctor as to the effects of the medication the Appellant claimed he took prior to going shopping.

16.The Magistrate was fully alive to the defence advanced by the Appellant (paragraph 10 Statement of Findings): "Put shortly, the defence case was the Appellant claimed to have taken a combination of medicine at some times prior to his going shopping in the store. This medicine was for his ongoing eczema condition and some non-prescription "flu" medicine. The result was, as described at the conclusion of defence counsel's final submissions (see transcript) ... "I don't know why I did it. I still can't explain why I did it. I sort of went blank.""

17.The Magistrate found he disbelieved the evidence of the Appellant generally, including his evidence of having taken the combination of medicines.

18.He confirmed he did not disbelieve the doctor's evidence but found it of very little assistance in the context of the case. He confirmed he had considered DW2's evidence, but even had he believed the account of the "medicine consumption and effect", given by the Appellant, he found the other evidence plainly showed the Appellant was acting deliberately and intentionally. In particular, his responses to the security officer and the arresting police officer were "normal". He was satisfied by the prosecution's evidence and convicted the Appellant.

19.The Magistrate arrived at his decision based on the evidence and having taken into account the Appellant's clear record and the character references placed before the court as letters from former employers. There is nothing put before this court to show the evidential findings were irrational, or that the Magistrate wrongly applied the law.

20.It is not the function of this court to re-try cases solely on the grounds that the Appellant is not happy with the result of the hearing in the Magistracy. No point of law arose on this appeal. All the matters raised were raised before the Magistrate who considered and reconciled discrepancies.

21.This appeal is dismissed.

Representation:

Miss Leung Rosaline, SGC, of Department of Justice, for Respondent

Mr Mitchell-Heggs A B, instructed by Messrs Chiu, Szeto & Cheng, for Appellant