HKSAR v. Lee To Yim
Read the full judgment text of HCMA 957/2005 on BabelCite. This High Court CFI judgment was delivered on 1 March 2006.
1. The appellant appealed against her conviction on 22 September 2005 by Mr Candy in Eastern Magistracy of a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210. At the conclusion of the hearing, the appeal was allowed and the conviction and sentence quashed. I indicated that I would give my reasons for so doing in due course. This I do now.
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HCMA957/2005 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO.957 OF 2005 (ON APPEAL FROM ESCC2100 OF 2005) --------------------- BETWEEN
-------------------- Before : Hon Lunn J in Court Date of Hearing : 1 March 2006 Date of Judgment : 1 March 2006 Date of Reasons for Judgment : 8 March 2006 --------------------------------------------------------- REASONS FOR JUDGMENT --------------------------------------------------------- 1.The appellant appealed against her conviction on 22 September 2005 by Mr Candy in Eastern Magistracy of a single charge of theft, contrary to section 9 of the Theft Ordinance, Cap.210. At the conclusion of the hearing, the appeal was allowed and the conviction and sentence quashed. I indicated that I would give my reasons for so doing in due course. This I do now. THE CHARGE 2.The charge alleged that on 12 May 2005 at the Jusco department store on the ground floor of Kornhill Plaza the appellant stole four pairs of children’s trousers and four pairs of children’s T-shirts. THE PROSECUTION CASE 3.Lui Chun (PW1), a security officer employed by the department store testified of his observations of the appellant from around 4:40 p.m. on the afternoon of 12 May 2005. At the outset he said he witnessed her in the children’s wear department on the second floor. He noticed that she was carrying a beige rucksack over her left shoulder. He said that he saw her picking up five or six pieces of children’s clothing, either upper garments or pairs of trousers. She rolled them up and placed them under her left armpit. She continued to wander around the store and then left the premises by the east side exit. She had not paid for the items she had picked up. She walked on a footbridge towards the North Block of Kornhill Plaza. He followed her and, whilst she was on the footbridge, he saw her place the garments into her beige rucksack and carry on walking. At a place near the entrance to a Midland property agency he intercepted the appellant, told her that she had taken goods from the store without making payment and asked her to accompany him to the security office of the store. She did so. He said that she was very cooperative. In the security office, at his request, the appellant took out the various garments, the subject of the charge, from her rucksack. 4.Police Constable 4128 (PW2) attended the premises of Jusco at Kornhill Plaza and arrested her for theft. In response to the administration of the words of caution, the appellant said : “Can you give me a chance?” THE DEFENCE CASE 5.In cross-examination, Lui Chun said that the appellant had been under his observation for about 15 minutes during which time, as far as he could remember, she did not talk on her mobile phone. In particular, he disagreed that she was talking on her mobile telephone shortly before she left the store premises, as she did so and outside the premises until she reached a glass door where she stopped talking on the telephone. He said that he had not detained the appellant immediately outside the premises of the store because, having summoned the assistance of a female colleague, he waited for her arrival. Crucially, he disagreed with the suggestion that the appellant had not placed the various items of clothing into a rucksack whilst she was walking along the footbridge but had been carrying them under her right arm at that time that she had been stopped by him. He said that he had asked the appellant to open her rucksack but that she had refused. Furthermore, he denied that as the appellant made her way back to the department store in the company of the two security officers she had dropped some of the items of clothing to the floor and, at his request, had placed the items that have fallen to the ground in the rucksack. 6.The appellant testified that she was a graduate primary school teacher without any criminal convictions whatsoever. On 12 May 2005 she had been working at the school, which is located nearby. She left school that day in a state of some anxiety, having been asked by the headmaster to take on an additional project. She went to Jusco in order to buy some clothing for her two children. She chose the items, the subject of the charge from the racks. Having selected those items she walked around looking for something to buy for her nephew. She placed the clothing she had selected already underneath her right armpit, in order to free both her hands for use in selecting other clothes. Whilst thus engaged she received a telephone call from her husband, whom she was expecting to meet. He told her that he was on his way to meet her at a nearby petrol station. She stopped looking for clothing and walked to the main door. Outside the store premises, she noticed an ATM machine and made towards it, before she realised that she had not brought her ATM card with her. Her conversation with her husband ended with him urging her to go to the petrol station as soon as possible. 7.The appellant testified that she continued walking across the footbridge connecting the department store with a shopping arcade, that being the route she intended taking to the petrol station. As she reached the very end of the footbridge she was stopped by a man and a woman. They pointed to items of clothing beneath her armpit and said that she had taken them without paying. She was transfixed and asked, rhetorically, how she could have been so confused as to forget to pay. She asserted to them that she had intended to pay for the goods. She agreed to their request that she accompany them back to the department store. She was never asked by either of them to open up her rucksack so that they could see inside it. As they were returning some of the items underneath her arm fell onto the floor. At their request, she placed all of the items of clothing she had taken from the store into the rucksack. 8.The appellant accepted that, in response to the police officer’s words of caution, she had asked for a chance. She did so because she believed that her explanation that she had intended to pay for the goods and was merely forgetful would be accepted. 9.Dr Chan Sai Yin gave testimony as an expert in psychiatry. He testified he had consultations, beginning on 18 May 2005, on an approximately twice a month basis until the hearing. His purpose was to compile a psychiatric report and secondly to assess and treat the appellant’s condition. He said that the information provided to him came from the appellant, her husband and also a Dr Wong, who had provided him with clinical notes. The appellant was a married woman with two children, aged three and two years. She was a schoolteacher and had taught at her current school for eight years. Although she had no history of prior psychiatric consultations, she described a history of depression following the birth of each child. Furthermore, beginning in September 2004, anxieties related to her perceived performance at work had exacerbated her depression. As a result, she had frequent outbursts of crying and had occasional suicidal thoughts. Her ability to concentrate became poor, as did her sleep. 10.Dr Chan testified that the appellant had received treatment, including psychotherapy and medication, since 13 May 2005. She was on sick leave from that date until 25 June 2005. However, her depressive disorder remitted in mid July 2005. In Dr Chan’s opinion the appellant had been depressed since the delivery of her son, two years earlier. In his opinion, the appellant had all nine diagnostic criteria for a “Major Depressive Episode” and since December 2004 had reached the criteria of a major depressive disorder, as described in DSM IV issued by the American Psychiatric Association. The severity of the disorder was at least moderate. He noted that, “Depressive disorder is known to cause ‘reduced concentration of the mind’, or forgetfulness in common terms.” 11.Dr Chan went on to note that in the history of the appellant that had been provided to him there were instances of such forgetfulness. In the result, he concluded :
THE ISSUES IN THE CASE 12.It was not in dispute that the appellant had been found on the footbridge, a considerable distance from the exit of Jusco, in possession of the goods the subject of the charge. Whether the goods were under her arm or in her rucksack was an important issue in dispute. Whether the goods were placed in the rucksack before or after her interception was also in dispute. Related to that, and in dispute, was whether she had been asked to open her rucksack, so that it could be inspected by Lui Chun and his colleague. THE MAGISTRATE’S STATEMENT OF FINDINGS 13.Not surprisingly the magistrate identified the testimony of Mr Lui Chun as the main evidence upon which the prosecution relied. Whilst he noted that there was a difference in the evidence of the appellant and Mr Lui as to whether or not the appellant had used a mobile telephone in and outside the store, the appellant having said she had and Mr Lui having testified that as far as he could remember she had not, the magistrate stated that what he took to be the crucial difference in the evidence was in respect of whether or not at the time she was apprehended the garments in question were under her arm or in her rucksack. He said (appeal bundle, page 40 A-C) :
14.Of the appellant’s testimony he went on to note (appeal bundle, page 40 E-G) :
15.Of his resolution of the conflicting evidence, given by the appellant and Mr Lui, the magistrate said, (appeal bundle, page 40 O) :
16.Of the issue of whether or not the appellant had been using her mobile phone as she walked across the footbridge, the magistrate concluded that if she had been doing so Mr Lui would have noticed that conduct. In the result, he found (appeal bundle, page 41 C-D) :
He concluded of the appellant (appeal bundle, page 41E-I) :
17.Of the appellant’s mental condition, as described by Dr Chan, the magistrate expressed reservations, noting of his statement “the defendant had been depressed since the delivery of her son two years ago” (appeal bundle, page 39F) :
18.The magistrate went on to make the same observation in respect of Dr Chan’s finding that the appellant had satisfied the criteria of a major depressive disorder since December 2004 and of the doctor’s opinion in conclusion that the appellant’s behaviour was “likely due to forgetfulness or absent-mindedness”. In the result, the magistrate concluded (appeal bundle, page 40 P-Q) :
19.In determining that the appellant was guilty of the offence the magistrate said (appeal bundle, page 41 I-L) :
AMENDED PERFECTED GROUNDS OF APPEAL AGAINST CONVICTION 20.The Amended Perfected Grounds of Appeal against Conviction is a truly extraordinary document, extending to over 3000 words in nine pages of single spaced text. In effect, it is a combination of the grounds of appeal with a detailed written argument. The result is obfuscation. Where what is sought is brevity and clarity, there is prolixity and confusion. Adding to the confusion was the appellant’s skeleton argument, of more than twice the length of the Amended Perfected Grounds of Appeal. Finally, the appellant served a lever arch bundle of no less than 22 authorities. Doing the best I can to extract sense from the morass of verbiage and identify the substance of the arguments advanced they may be described as set out below. Ground 1 21.The magistrate erred in law in stating of PW1 in his findings “Firstly whether or not he asked the defendant to open her rucksack as soon as he intercepted her is neither here nor there…” Ground 2 22.In respect of the issue of whether or not the garments were underneath the appellant’s armpit or in her rucksack at the time that she was confronted by PW1, the magistrate erred in : (i) failing to evaluate the evidence properly; and (ii) failing to give proper reasons for his findings. Ground 3 23.The conviction of the appellant is against the weight of the evidence and/or the magistrate reversed the burden of proof in respect of various issues :
Ground 4 24.The magistrate erred in law in not permitting counsel for the appellant to cross-examine PW1 fully, pursuant to sections 13 and 14 of the Evidence Ordinance, in respect of a document entitled “Shop Theft Statement pro forma” made and signed by PW1 on the afternoon of 12 May 2005, after the interception of the appellant, thereby denying her the opportunity to demonstrate inconsistencies in PW1 between his oral testimony, the pro forma and his witness statements to the police. Ground 5 25.The magistrate erred in relying, in part, upon the demeanour of the appellant whilst giving evidence as a basis for his finding that “she was merely regurgitating a well rehearsed story and parts of her story seemed exaggerated and fanciful.” Ground 6 26.The magistrate wrongly and insufficiently directed himself in respect of the effect of the appellant’s positive good character. Ground 7 27.The magistrate failed or gave the appearance of having failed to conduct the trial neutrally. Grounds 8 and 9 28.There is a lurking doubt that the conviction of the appellant is unsafe and unsatisfactory. ADDITIONAL EVIDENCE 29.At the outset of the hearing, pursuant to section 118 of the Magistrate’s Ordinance, Cap.227 on the application of the appellant, not opposed by the respondent, leave was granted that additional evidence be adduced before the court. That evidence comprises :
30.Next, I turn to a consideration of the individual grounds of appeal. GROUND 4 : THAT THE MAGISTRATE ERRED IN LAW IN NOT PERMITTING CROSS-EXAMINATION OF PW1 IN RESPECT OF HIS SIGNED SHOP THEFT STATEMENT PRO FORMA 31.The pro forma consists of two pages each of which is signed in the name Lui Chun. One is a partly printed form on which a manuscript description of the events has been added, together with a second, initially blank page, on which there is half a page of manuscript. The document is timed and dated as having been made at 16:05 hours on 12 May 2005. Clearly, that is an error because the document itself describes events that took place after 16:40 hours that day. Also, it is asserted in the document that the appellant was stopped by the witness at 17:55 hours. In his witness statement of 15 September 2005, which is now before the court, Lui Chun corrected both times. 16:05 should read 17:05 and 17:55 should read 16:55. 32.It is clear from the transcript, that when counsel began to cross-examine Lui Chun on the document, initially about whether or not he had made out the pro forma immediately after the incident and, in particular, whether it is stated that he had maintained “continuous/intermittent” observation of the appellant or whether that line in the text had been deleted, that the magistrate intervened (appeal bundle, page 97P-R) :
Thereafter, it is clear from the transcript that the court was given a copy of the pro forma. The court observed that the witness had signed the document. It was established with the witness that he had not deleted the assertion in respect of the extent of his observations as being “continuous/intermittent”, the witness asserting that the deletion was present on the form when he filled it out. However, when counsel sought to cross-examine the witness further on the pro forma the court interrupted several of counsel’s half-posed questions with the repeated statement “No”, in face of which counsel moved on to another topic. (Appeal bundle, page 98 D - 99 I.) 33.Later, in the cross-examination of Lui Chun, counsel for the appellant put her case, in particular, that at the point at which the witness had intercepted the appellant she was carrying the garments underneath her right armpit; as the appellant walked back on the footbridge to the department store with the witness and his colleague the appellant dropped some of the clothing onto the floor; and that it was at that stage that she, the appellant, was asked by the witness to put the clothing into her rucksack. Lui Chun replied in the negative to each of the suggestions. As that stage, counsel asked the witness (appeal bundle, page 106 B-G) :
34.The translation of the Shop Theft Statement pro forma describes Lui Chun’s observations of the sequence of events thus (appeal bundle, page 150-1) :
35.Clearly, the sequence of events described by Lui Chun was capable of the interpretation placed on it by counsel in the question he sought to ask of the witness. It may be, as Ms Leung for the respondent suggests, that the presence of two marks, not characters, the first immediately before the translated phrase “On the way” and the second after “left shoulder” may have given grounds for the witness to explain that they were another set of brackets, the purpose of which was to indicate that the sequence of the events being described was being interrupted. However, we do not know what if any explanation the witness might have, because counsel was not permitted to ask the question of the witness. 36.At this stage in cross-examination of Lui Chun the witness asserted, for the first time, that after he had stopped her he had asked the appellant to open her rucksack to let him see the contents. When asked to confirm that he had not told the police about this Lui Chun said (appeal bundle, page 106P) :
When counsel sought to pursue the matter the magistrate said :
In face of that statement, counsel moved on to other areas of cross-examination. 37.Of course, there was no reference in the pro forma of the witness either having asked the appellant, having stopped her, to open her rucksack to let him see inside or that she had refused that request. That evidence of the witness lay ill with his earlier statement, at the outset of his evidence-in-chief, that the appellant had been “very cooperative”. These were all matters about which the appellant’s counsel was entitled to take up with the witness in cross-examination, and to confront him with the pro forma if he did not accept the contents of the pro forma. In my judgment, it is clear that he was prevented from pursuing that course by the repeated interruptions and rulings of the magistrate in respect of his use in cross-examination of the pro forma. In the result, the appellant was denied the opportunity of establishing the significance of the inconsistencies between the testimony of Lui Chun and his first written record of these events. 38.There is no doubt that the credibility of Lui Chun was critical to the prosecution case. In determining that he could rely upon the evidence of Lui Chun, in particular that the appellant was not carrying the clothing under her arm when stopped but had put it into her rucksack before she was stopped, the magistrate acknowledged the regard to be had to cross-examination of the witness (appeal bundle, page 42 O) :
In my judgment, that assessment of the witness is fundamentally undermined by the fact that, in consequence of the court’s intervention and rulings, the witness was not subjected to cross-examination in respect of the matters described earlier. Accordingly, on this ground of appeal the appeal against conviction was allowed. GROUND 3 39.By Ground 3(iii) the appellant submitted, under the general assertion that the conviction was against the weight of the evidence and/or the magistrate had reversed the burden of proof, that the magistrate had erred in preventing the defence leading primary evidence of the symptoms of her mental condition and, in the result, rejecting various opinions of Dr Chan of the appellant’s mental history and well-being at the time of the offence. 40.In support of the former proposition, the court was invited to note an interchange between counsel and the magistrate in the closing stages of the appellant’s evidence in chief, (appeal bundle, page 117G-P) :
41.Dr Chan was permitted by the court to give evidence as an expert witness in psychiatry and to produce to the court a written report. In cross-examination, Dr Chan confirmed that his history of the appellant’s symptoms came from her, her husband and, in respect of her dysfunctional uterine bleeding from her gynaecologist, Dr Wong. In all, he had held thirteen consultations with the appellant, in the five months from her arrest to the time of the trial, during which he obtained her history. He confirmed that he had relied upon her in order to compile his report. 42.It is to be noted that, whilst the appellant’s husband was also called to give evidence in the defence case, he was not asked any questions about his observation of the display of symptoms of her mental illness by the appellant. 43.Clearly, the magistrate fell into error when he said of Dr Chan’s opinion that the appellant had been depressed over a period of two years, that it was, “… based entirely on a subjective history given by the defendant herself.” (emphasis added.) Dr Chan’s report makes it clear, at paragraph 3.6, that in reaching that opinion he relied in part upon information provided by Dr Wong, the appellant’s gynaecologist, that he found her to have had “dysfunctional uterine bleeding” since February 2004 which was largely due to emotional stress. 44.However, whilst there may be some force in the complaints made on behalf of the appellant that the defence was misled by the magistrate’s comments at the trial into not leading primary evidence independent of the appellant of symptoms of her mental condition, it is to be noted that, nevertheless, the magistrate found (appeal bundle, page 42 P) :
45.Moreover, as Mr Woo accepts that the magistrate was entitled, as he did, to reject the opinion of Dr Chan that the appellant was suffering from a major depressive episode at the time of the offence. In that context, it is to be remembered that it was the appellant’s own evidence that she was discharging her duties as a schoolteacher in full time employment at the time of the offence and had been asked to take on a new project by her headmaster that very day. 46.Furthermore, it is clearly to be implied from the magistrate’s statement of findings that he accepted that, the appellant having been “abruptly and unexpectedly interrupted by her husband’s telephone call”, she may well have left Jusco forgetful of the fact that she was in possession of the clothing for which she had not paid. The act that he found to be the act of theft occurred subsequently on the footbridge, when she put the clothing into her rucksack. Of that, he stated that (appeal bundle, page 43 K) :
Accordingly, in my judgment there is no merit in this ground of appeal. THE OTHER GROUNDS OF APPEAL 47.Manifestly there is no merit in any of the other grounds of appeal. Grounds 1 and 2 do not stand by themselves, but are merely subsidiary and related to Ground 4. Ground 6, that the magistrate misdirected himself in relation to the good character of the appellant, and Ground 5, that the magistrate erred in rejecting the evidence of the appellant, are utterly bereft of any merit at all. Ground 7 is, in effect, an allegation that the magistrate was or gave the appearance of being biased against the appellant. In my judgment, having read the transcript of the entire trial and having listened to passages of the audio-tape of those proceedings, this ground is without foundation, warrantless and without merit. COSTS 48.Having succeeded in her appeal against conviction the appellant seeks an order for costs of the appeal, but not the trial below. She does so pursuant to section 8 of the Costs in Criminal Cases Ordinance, Cap.492. It is conceded on her behalf, quite correctly, that the appellant had brought suspicion on herself by leaving the department store with goods for which she had not paid. Clearly, the court has a discretion to exercise in dealing with the application. Just as a defendant’s conduct prior to trial, in bringing suspicion upon himself and misleading the prosecution into believing that its case is stronger than in fact it is, is relevant to the discretion to award costs to an acquitted defendant, the appellant’s conduct of his appeal is relevant to the exercise of the discretion to award costs to a successful appellant. 49.In opposing the award of costs to the appellant Ms Leung, who appears for the respondent, drew the court’s attention to the judgment of the Court of Appeal in HKSAR v. Ng Shui Laun [2004] HKLRD 583. The judgment is in Chinese only, but a translation was supplied to the court of the relevant passages. At paragraph 17 of the judgment Woo VP enumerated factors that are relevant to the court’s consideration of the exercise of its discretion in face of an application for costs by a successful appellant. Relevant to that discretion is the ambit of the grounds of appeal advanced: whether groundless accusations have been made, whether the time of the court and that of the respondent has been wasted by having to consider meritless and unsuccessful grounds of appeal and, finally, whether at the end of the appeal only one of the grounds succeeds. 50.As has been described earlier, the Amended Perfected Grounds of Appeal were prolix in the extreme, requiring considerable time and effort to distil it into its real substance. There is no reason to doubt that the respondent had the same difficulty the court encountered in identifying the substance of those grounds and then making its written response. The appellant’s written submission was even more cumbersome and time-consuming to absorb. No reference whatsoever was made in oral argument to any of the 22 authorities supplied to the court in advance of the hearing. In the event, the appellant succeeded on one ground of appeal only. It follows that, in my judgment, the appellant is not entitled to an order for the costs of the appeal.
Ms Rosaline S.Y. Leung, SGC, of the Department of Justice, for the Respondent Mr Woo Sai Man Simon, instructed by Messrs Lily Fenn & Partners, for the Appellant |
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