HKSAR v. Yeung Ching Yin

HCMA 908/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.908 OF 2005

(ON APPEAL FROM ESCC 5013/2004)

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BETWEEN

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Before: Deputy High Court Judge Barnes in Court

Date of Hearing: 22.8.2006, 16.9.2006

Date of Judgment on Conviction: 22.8.2006

Date of Judgment on Sentence: 16.9.2006

Date of Handing down Judgment: 19.9.2006

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J U D G M E N T

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1.The Appellant YEUNG Ching-yin was convicted after trial of an offence of Theft, contrary to section 9 of the Theft Ordinance, Cap. 210. She was sentenced to 15 months imprisonment. She appealed against conviction and sentence.

2.After hearing submissions on the appeal against conviction on 22.8.2006, I dismissed the appeal and told parties I would hand down my reasons later.

3.I then dealt with the appeal against sentence. The Appellant raised for the first time the issue of mental illness in the form of depressive disorder and sought leave to adduce additional evidence from Dr. Peter Yu, a psychiatrist in private practice. The Respondent opposed the application and sought, in the alternative, for an order that the Appellant be examined by a Government psychiatrist. 

4.Having heard parties I was of the view that in the particular circumstances of this case it was in the interests of justice to have the relevant medical evidence before the court. I adjourned the matter so that the Appellant could be examined by a Government psychiatrist – with the Appellant’s consent.

5.Dr. Choi Wing-kit of the Pamela Youde Nethersole Eastern Hospital examined the Appellant and she was diagnosed to be suffering from a chronic form of depression disorder.

6.Having considered both psychiatric reports and heard submission during the resumed hearing on 16.9.2006, I allowed the appeal against sentence to the extent that such sentence was suspended for a period of 18 months.

7.I now give my reasons.

Prosecution case

8.The learned magistrate has succinctly set out the prosecution case in his Statement of Findings. I will adopt the same here:

“4. PW1 Leung Yuk-lin is now 76 years of age.  She speaks the Xinhui dialect.  At about 8 a.m. on 8^th November 2004, before going out for tea, she double-folded 6 $10 banknotes together and put them into her right trouser pocket.  Then she went out to have tea with her husband and her grand-daughter (PW2 Mai Chun-mei).  Afterwards, she and PW2 went to the market to buy food for cooking.  It was closing time.  There were very few people.  At 10:10 a.m., at a vegetable stall, she was about to get some turnips and she suddenly felt a touch on her thigh where her right trouser pocket was.  She checked for the money but it was gone.  She checked the floor.  It was not there, either.  She shouted that she had been robbed.  She turned around and saw the defendant.  The defendant was the only person next to her and PW2.    The defendant was holding some $10 banknotes in the same state of folding.  Both PW1 and PW2 saw the banknotes (later seized by the police and found to be 6 10 banknotes, as Exh. P3) being partly in and partly out of the left pocket of the defendant’s vest (later seized by the police, as Exh. P4).  The defendant wore another upper garment over the vest.   

5. PW1 caught the defendant’s hand and accused the defendant of stealing.  The defendant denied.  

6. Soon PW3 PC 52553 arrived the scene to investigate.  He arrested the defendant for theft.  After caution, the defendant replied:

“ The money is the change I got when I bought medicine earlier on.  When I took the money out to buy something into (sic)the market, the old woman grabbed me and said that I had taken her money.”

7. At 3:30 p.m. on the same day, the defendant gave a record of interview voluntarily (Exh. P1A).  She said that she had brought the money out from home to buy food at the market.  She had given a different version to the police earlier on because she was afraid and therefore made a mistake at that time.  At the police station, she was searched and found to have $425.70 elsewhere on her body.”

Defence case

9.The Appellant did not give evidence or call any defence witness.

Grounds of appeal on conviction

10.Mr. Nicholas Adams, counsel for the Appellant advanced three grounds of appeal to say the conviction was unsafe and unsatisfactory. In short, it is the Appellant’s contention that the learned magistrate wrongly accepted the evidence of PW1; that he erred in drawing the inference of guilt; and that there was a ‘lurking doubt’ as to whether justice had been done.

11.In relation to the evidence of PW1, Mr. Adams submitted that her evidence about the touch smacked of embellishment. Given the fact that PW1 was an illiterate woman of 76; that she appeared to have a phobia about being pick-pocketed; that she immediately looking at the “floor” (i.e. the ground) to see if the money had dropped rather than grabbing the hand of the perpetrator; and that her testimony of looking to the right (where the Appellant was standing in relation to her) was contradicted by PW2 (her 30 odd year old grand-daughter), the learned magistrate could not have drawn the irresistible inference that PW1’s pocket was picked.

12.Mr. Adams further submitted that if the court could not have drawn the irresistible inference that PW1’s pocket was picked, then even if the court finds that the money found in the possession of the Appellant were indeed PW1’s, the court could only found the Appellant guilty of “theft by finding”, and not “theft by pick-pocketing”.

The Respondent’s response

13.Mr. Liu Yuen-ming, Senior Government Counsel for the respondent submitted that the learned magistrate had considered in detail all the submissions by the defence (including the points raised on appeal) before coming to his conclusion that PW1 was a credible and reliable witness.

Judgment on Conviction

14.An appeal under section 113 of the Magistrates Ordinance, Cap. 227 is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so: see CHOU SHIH BIN v HKSAR, FACC No. 11 of 2004.

15.In my view, it must be acknowledged that a magistrate has the advantage of observing witnesses giving evidence in court, the judge on appeal can only rely on the a written transcript.  The credibility and reliability of any particular witness is solely within the assessment of the magistrate. Where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or that the magistrate has misunderstood, or misquoted, or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory. 

16.The Appellant’s then counsel has literally left no stone unturned when he submitted his written final submission to the learned magistrate. The learned magistrate had dealt with the grounds raised. Although the learned magistrate appeared to have dealt with the defence submission ‘point by point’, it is clear that he was fully aware of the relevant issues before him (in particular the credibility and reliability of PW1) and had made a proper evaluation of the evidence. I see no grounds to interfere with the learned magistrate’s findings of fact.

17.It has been suggested, both to the learned magistrate and to me, that it is not logical or reasonable for PW1 to first look at the ground after feeling the touch/scratch on her thigh. It is submitted that such an act throws doubt on PW1’s credibility and/or reliability regarding the alleged touch. I do not agree with such a submission. PW1 had explained why she looked to the ground first after she felt the touch on her thigh.  It is not inconsistent for a person to see if the folded money had dropped to the ground after feeling someone’s hand having been inserted into his/her pocket.

18.PW1’s evidence was that the Appellant stood on her right side, ‘between’ her and her granddaughter. In other words, the Appellant was to the left of the granddaughter. PW1 said she looked to her right while PW2 said PW1 looked to her (PW1’s) left. The learned magistrate was aware of the discrepancies between PW1 and PW2. Although the granddaughter was younger than PW1, the learned magistrate, having the benefit of observing them give evidence, was entitled to come to the view, after considering all the evidence, that PW2 was mistaken in this respect.

19.The learned magistrate has dealt with all the evidence carefully. It is my judgment that the learned magistrate was entitled to find the Appellant guilty of theft by pick-pocketing. There is nothing unsafe or unsatisfactory about the conviction. The appeal on conviction is dismissed.

Reasons for Sentence

20.The learned magistrate has given detailed reasons for sentencing the Appellant to 15 months imprisonment. He referred to the Appellant 5 previous similar convictions in 1957, 1963, 1977, 1982, and 1999. He was aware of the background of the Appellant, in particular her age of 61 and the poor health suffered by her and her husband.

21.The learned magistrate referred to the Court of Appeal case of  HKSAR v Ngo Van Huy [2005] 2 HKLRD 1 and adopted 15 months as the starting point.  He did not regard the pre-existing poor health or the fact that the Appellant had never been in jail before as mitigating factors.

Additional Psychiatric Evidence

22.Dr. Peter Yu examined the Appellant on a number of occasions in June, July and August this year. After gathering background information from the Appellant and her son, Dr. Yu’s diagnosis was that the Appellant “has had significant mental symptoms, which came on insidiously for a few yeas. The prominent symptoms are depressed mood, insomnia, anorexia, fatigue or loss of energy, feelings of worthlessness, and recurrent suicide ideation. She suffered from Depressive Disorder…Due to the insidious onset and the lack of insight (for instance, attributing symptoms to growing old), the patient and the relatives are often ignorant of its occurrence.”

23.Dr. Yu was aware of the repeated theft offences committed by the Appellant. However, he is of the view that the Appellant does not seem to be suffering from Kleptomania (i.e. Pathological Stealing).

24.Dr. Yu recommended the Appellant to continue with out-patient treatment. He is also of the view that putting the Appellant back in jail would not only disrupt the treatment but would also ‘increase the shame and the guilt, and re-kindles the anguish of separation from her loved ones”, which would “definitely lead to a significant deterioration of mental health or even continued illness without remission.”

25.Dr. Choi examined the Appellant in September this year. He is of the opinion that the Appellant suffers from a chronic form of depression disorder. The Appellant has limited understanding towards her illness and its contribution to her illness behaviour. She also has poor compliance towards psychiatric treatment despite her plight. Dr. Choi observed that the Appellant had been “exceedingly distressed by the legal proceeding” which might have contributed to the poor response towards psychiatric treatment. Dr. Choi is of the view that “[f]urther incarceration would certainly be an unfavourable factor that may hinder normal recovery”. He considered it essential at present for the Appellant to be close followed-up by a psychiatrist. 

26.The Appellant has been given a follow-up appointment at the Pamela Youde Nethersole Eastern Hospital on 6.10.2006, which means that she can now receive treatment in a government hospital.

Judgment on Sentence

27.The Appellant was found guilty by the learned magistrate for ‘pick-pocketing’ after trial. With her previous conviction record and in view of the authority of Ngo Van Huy, the learned magistrate’s decision to impose a term of 15 months imprisonment cannot be faulted, particularly when the Appellant has been given suspended sentences on two occasions.

28.I should point out that Mr. Adams did not seek to have the 15 months reduced in view of the Appellant’s failure to have the conviction quashed. He asked the court to impose a suspended sentence in light of the new medical information.

29.While the Appellant is a repeated offender, her last conviction was in 1999. Her criminal behaviour spanned a period from 1957 – 1999 until the present offence committed in 2004. Most of the thefts are “pick-pocketing”.

30.The Appellant was in jail from 6.9.2005 to 1.11.2006 when she was granted bail pending appeal. It transpired that the Appellant had kept her previous transgressions from her family and only told them while she was in jail. She has been living in self-loathing and guilt. She exhibited depressive behaviour both before and after the conviction in this case, with more severe symptoms while in jail.

31.As indicated by Dr. Yu, patient and family members are often ignorant of the occurrence of depressive disorder. It was fortunate that the Appellant was arranged to seek psychiatric help. Her depressive condition was thus diagnosed and she is now receiving treatment.

32.Having regard to the diagnosis and opinions of the two psychiatrists; the circumstances of the pick-pocketing in the present case, in particular the relatively small amount involved ($60); and the fact that the Appellant has been incarcerated for almost 2 months so she has experienced first-hand what prison-life was like, I am of the view that this is an appropriate case to suspend the 15-months i

Mr. LIU Yuen-ming, Senior Government Counsel of Department of Justice for Respondent

Mr. Nicholas ADAMS instructed by M/s Tsang, Chau & Shuen for the Appellant