HKSAR v. Kwan Yuen Hing

HCMA 570/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 570 OF 2004

(ON APPEAL FROM STCC 50/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 1 December 2004

Date of Judgment: 1 December 2004

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J U D G M E N T

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1.This is an appeal against conviction.  The Appellant was convicted after trial of one charge of theft.  The charge related to the theft of two bars of chocolate from a supermarket. 

2.The case is quite simple; when the Appellant left the supermarket she had activated the anti-theft alarm.  The manager of the supermarket stopped her and protruding from the Appellant’s trouser pocket were two bars of chocolate which had not been paid for.  When the manager asked if the Appellant had paid for the chocolate, she had replied that she had taken some medicine and had forgotten to pay.

3.In fact, the prosecution’s evidence was not in dispute.  The Appellant gave evidence and her evidence was that she had gone to the supermarket to have a look around and while she was in the supermarket she has been distracted by the voice of a woman speaking with a Mainland accent and she had felt that the woman was following her like a ghost and she was then reminded of the woman whom she believed was having an affair with her husband and had telephoned to her home.  And so, at that stage, she said she wanted to leave the supermarket and did so.  She said she had very little recollection of being in the supermarket and did not remember at all taking the bars of chocolate and could not explain how they came to be in her pocket. 

4.She also gave evidence that earlier that day she had taken some medicine prescribed by her doctor.  The doctor was called by the defence, Dr Kong, who said that the Appellant had come to see him about a week before the offence with tonsillitis.  He had prescribed antibiotics and painkillers.  The medication should have finished the day before her arrest.  The doctor said that one of the painkillers may cause drowsiness and lack of concentration especially if the Appellant had little or no sleep the night before.  In evidence, he said the Appellant said she had suffered from insomnia the night before the offence.

5.The doctor said that he was of the view that forgetfulness was not a side effect of the medication because at that time the drug that he had prescribed was dologesic and it would only cause some drowsiness.  (See page 55 letter O to S of Appeal Bundle).

6.The learned Magistrate after evaluating the evidence considered that he was satisfied that the Appellant had taken the chocolate and knew that she had not paid for it when she left the shop.  She did so deliberately, intending to evade payment that she was being dishonest at the time.  Therefore, the learned Magistrate convicted the Appellant.

7.The Appellant’s counsel, Mr Leung submitted grounds of appeal, criticising the learned Magistrate for failing to properly evaluate the evidence of Dr Kong.  In the light of the evidence given by the Appellant, the learned Magistrate had failed to give cogent reasons for coming to the conclusion that the tablet did not cause the Appellant’s drowsiness and lack of concentration.  His conclusion was not based on any scientific evidence.

8.Mr Leung, counsel for the Appellant, as had the counsel in the trial, also relied on the fact that the chocolates were not concealed and were easily visible.  Mr Leung submitted that the conviction was unsafe and unsatisfactory. 

9.It is clear from the learned Magistrate’s Statement of Findings that the learned Magistrate was fully aware that the chocolates were not concealed and easily visible, and so stated in his oral reasons (see page 20 letter F to H of Appeal Bundle).  The leaned Magistrate was fully aware also of Dr Kong’s evidence in relation to the type of medicine he had prescribed for the Appellant and, in fact, the learned Magistrate was not wrong when he said that the particular medicine that was prescribed did not cause forgetfulness but did cause drowsiness and associated lack of concentration.

10.The learned Magistrate was fully entitled to accept that even though the medication caused drowsiness and perhaps the lack of concentration that it did not prevent the Appellant from forming the proper mens rea for this offence. 

11.This was a finding of fact, as to whether the learned Magistrate had proper evaluated the evidence.  It is clear in reading his Statement of Findings and in reading his oral reasons for verdict that the learned Magistrate did evaluate all the evidence that was in favour of the Appellant.  At the end of the day, he found that he was satisfied that the Appellant’s mind who was not so affected by the medication that she could not form the proper intent.

12.I do not agree at all that the learned Magistrate had failed to evaluate the evidence that the chocolates were sticking out of the pocket and not been concealed.  This was stated by counsel for the defence in the trial below in his final submissions to the learned Magistrate and the learned Magistrate had taken that into account.

13.I do not see that the learned Magistrate, in making his finding, did commit any error in this case.  This was strictly a finding of fact, the learned Magistrate was entitled and had evidence, sufficient evidence upon which he could base his inference of the Appellant’s intent.  I do not agree that there are any merit in this ground of the appeal and so I find that the conviction is therefore not unsafe and unsatisfactory. 

14.The appeal is dismissed.

Ms Kathie Cheung Kit Yee, GC of the Department of Justice, for the Respondent

Mr Michael L Y Leung, instructed by Messrs Lee, Chan & Cheng, for the Appellant