HKSAR v. Lau Siwei

HCMA1190/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1190 OF 2005

(ON APPEAL FROM KCCC 6159 OF 2005)

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BETWEEN

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Before : Hon McMahon J in Court

Date of Hearing : 23 March & 12 April 2006

Date of Judgment : 12 April 2006

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J U D G M E N T

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1.This is an appeal against both conviction and sentence. 

2.The appellant, a 45-year-old female tourist from the Mainland, was convicted after trial before a magistrate of two offences of theft.  She was sentenced to 12 months’ imprisonment in respect of each offence to be served concurrently, that is a totality of 12 months’ imprisonment. 

3.The facts of the case as set out in the magistrate’s Statement of Findings are as follows :

“      The defendant was convicted after trial of two offences of theft, one committed very shortly after the other.  Both offences were committed on a very busy Sunday afternoon in an upmarket shopping and hotel complex in Tsim Sha Tsui.

The first item stolen was a pair of ladies shoes which were packed in a bag on the side of which was written ‘Milan’.  The theft took place inside premises called ‘The Little Gym’.  The premises are glass fronted.  Parents or helpers take their children to the gym for various activities which they can observe.  The ‘Milan’ bag was put to one side whilst the person in charge of the bag watched the playing children.  The defendant obviously saw the opportunity to enter the premises and steal the bag whilst its owner was distracted.

The defendant then took the escalators to ascend two floors to enter the Renaissance Hotel.  A customer was dealing with the concierge and left his luggage bag and computer bag immediately behind him.  The CCTV showed the defendant quickly moving to pick up the computer bag and place it some feet away behind a pillar.  Her actions were observed by the concierge and she was subsequently arrested.”

4.The appellant, who was unrepresented at trial and before me, appeals her conviction on the basis of home-made grounds of appeal which effectively alleged she was not of sound mind when she allegedly committed the offences and did not form the intent to steal.  She said her thoughts and her body were not under her control.  This was effectively the same defence the appellant raised before the magistrate and which was dealt with by him.  He took into account both the appellant’s evidence in this regard and the report of a psychiatrist, Dr Elisabeth Wong.  It simply stated that :

“      [The] Defendant gave inconsistent accounts of her … offence but was able to give clear and detailed account of all other aspects of her history.  There is insufficient evidence to suggest that she suffered from any psychiatric illness.  It is likely the defendant is feigning psychiatric symptoms.  No psychiatric treatment is indicated.”

5.Another psychiatric report was available from Dr Henry Yuen.  That report really did not take matters much further.  It stated as follows :

“It is difficult to come to a conclusion whether she is really mentally ill.  She appears to be a fairly manipulative and demanding person and could easily run into conflict with others.  The possibility of malingering cannot be ruled out.

She claimed to be under the influence of one imaginary male voice … at the material of the alleged offence and could not control herself but I don’t know whether she was telling me the truth.”

6.The magistrate considered all of this evidence and came to his own conclusion as follows : 

“I did not believe the evidence of the defendant as to the circumstances in which she claimed in court to have taken the property the subject of the charges.  Her evidence was internally inconsistent, she had told different versions to the psychiatrist and yet another story to the police. 

On the evidence I was sure the defendant deliberately and dishonestly stole the items of the subject of the two charges and convicted her accordingly.”

7.That conclusion was open to the magistrate on the evidence and indeed, in my view, it is a conclusion which was inevitable on the evidence before him. 

8.Nevertheless, given the nature of the appellant’s appeal, I called for another psychiatric report.  That became the report of Dr Robyn Ho, the Visiting Psychiatrist of Siu Lam Psychiatric Centre, dated 10 April 2006.  In the opinion of Dr Ho, the appellant is a malingerer.  Her only real problem is that she has a dissocial personality in the sense that she is a manipulative and demanding person, but she suffers no psychiatric illness. 

9.In my view the magistrate was entirely correct to come to the conclusion that the appellant was perfectly aware of what she was doing at the time she stole these items and intended to do so.  She was not and did not believe herself to be under the control of any other person or voice.  The appellant’s appeal against conviction is dismissed. 

10.The appellant appeals also her sentence on the basis that it is too severe. 

11.The appellant, as the magistrate said, had gone to the shopping mall where the offences occurred with a plain intention of stealing.  One of the items she stole was a portable computer.  It was recovered from her only because of the alertness of a member of the staff of the hotel where the theft occurred.  The value of the computer is not known as the owner was flying out of Hong Kong and took it with him, though the shoes the appellant stole were valued at $299.  These were two separate thefts but they formed part of a series of acts.  The magistrate’s decision to impose concurrent sentences cannot be criticized. 

12.Given all the circumstances of the case, I am unable to say that the sentences are too severe and the appellant’s appeal against sentence must also be dismissed. 

23 March 2006
Ms Catherine Ko, SGC of Department of Justice, for HKSAR
Appellant, in person

12 April 2006
Ms Rosaline Leung, SGC of Department of Justice, for HKSAR
Appellant, in person