HKSAR v. Lo Shuk Ming

HCMA1038/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1038 OF 2007

(ON APPEAL FROM STCC 2720 OF 2007)

---------------------

----------------------

Before : Hon McMahon J in Court

Date of Hearing : 5 March 2008

Date of Judgment : 5 March 2008

-------------------------

J U D G M E N T

-------------------------

1.The 46-year-old appellant was convicted by Mr Casewell in Shatin Magistracy of an offence of stealing a packet of biscuits and two small bags from a Mannings Store in Shatin’s New Town Plaza.  She was fined $750 and now appeals her conviction.

2.The facts were straightforward.  The appellant had entered the shop and purchased two packets of biscuits, but before leaving the shop took two small bags which were “gifts” attached to an item she did not purchase and placed them and another packet of biscuits into a plastic bag provided by Mannings and then left the shop without paying for them.

3.She was intercepted by a staff member of Mannings whose evidence was the appellant had said to her : “It was momentary greed.  Give me a chance”.  The police were called and, according to PW2, a police officer who cautioned and arrested the appellant, she said : “I did something wrong out of momentary greed”.

4.The appellant placed none of this evidence in any material dispute.  Her case was that she was a school teacher who had been working that day and had then gone to the Mannings Store.  She did not intend to take the packet of biscuits or the two “gift” bags attached to another item and she said she had taken the items out of momentary greed out of confusion and to bring matters to an end and be able to go home.  She called a witness on her behalf, Dr Sylvia Chan, who gave evidence to the effect that the appellant, at the time of the offence, was under considerable stress in her personal life and work.  She said the appellant had suffered from an “adjustment disorder or mixed anxiety and depressive mood” and so had difficulty in concentrating at the time of the offence.

5.The magistrate concluded however in his Statement of Findings :

“At the end of the evidence, I was satisfied, having heard all of it, that the defendant had deliberately done what she did that day, that she was fully aware of what she was doing.  I can only speculate as to her motivation for doing it, but I am not required to make any findings as to that.  Clearly, to act as she did is dishonest, there was clear evidence of an intention to permanently deprive.  The other elements of the offence were not disputed.”

6.The first ground of appeal advanced by the unrepresented appellant is that the magistrate wrongly took the admissions she made to the Mannings staff and the police officer into account when it was possible that she had lied to them in regard to having taken the items “out of momentary greed”. 

7.Her evidence was that she had lied to the Mannings staff and the police officer as to taking the items “out of momentary greed” because she was confused and wanted to go home.  It is quite plain the magistrate did take the evidence of the appellant into account in this regard.  His conclusion was quite simply that he did not accept the explanation given by the appellant for having made these admissions to two separate people.  I must say the magistrate’s rejection of the appellant’s explanation for her admissions seems to me inevitable.  The appellant is apparently an intelligent woman.  It defies belief she would effectively confess, on two separate occasions, to stealing these items if she had simply taken them inadvertently.  Her explanation that she said these things because she “wanted to go home” equally lacks credit.  The magistrate cannot be criticised for rejecting her explanation of her admissions in the way that he did. 

8.The second ground advanced by the appellant is that the magistrate did not consider the fact that the appellant took the “gift” items from another item on the shelf quite openly and opened that gift item in the store.  But that is not the whole of the facts that the magistrate found proven.  However the appellant obtained the “gift” items and unwrapped them the magistrate found that the appellant “acted so as to conceal those items inside the bag she was carrying”.  It was not necessary for the magistrate to go further than that. 

9.The appellant further complains that the magistrate ignored the opinion of Dr Chan that the fact that the appellant had done these acts openly showed she had no intention to steal.

10.The magistrate was quite right to ignore the opinion of Dr Chan in that regard.  That matter was for the magistrate to decide and Dr Chan’s evidence in this regard had trespassed into the court’s area of responsibility.  There was no merit in this ground.

11.The third ground advanced by the appellant was effectively that the magistrate rejected Dr Chan’s evidence and did not give it sufficient weight.  But it is apparent from the magistrate’s Statement of Findings that he gave considerable attention to the evidence of Dr Chan.  He dealt with Dr Chan’s evidence in his Statement of Findings in some detail and then summarised it and its relation to the defence case in this way :

“… The opinion that Dr Chan reached was that the defendant’s mind was filled “with depressing thoughts and hurting events”, and this rendered her extremely preoccupied and inattentive.  That could lead to her not being fully aware of her actions …”

and later he continued :

“The defence have raised the possibility—through the psychiatric report and the defendant’s evidence—that she was suffering from a psychiatric illness—namely, adjustment disorder of a mixed anxiety and depressive mood—which would render her, at times, preoccupied and inattentive.”

and subsequently the magistrate concluded :

“… [The] defendant undoubtedly was unwell on the evidence I have heard from Dr Sylvia Chan. 

But it does appear from the obvious facts that, however unwell the defendant was, it was not such as to render her at that time inattentive and preoccupied in relation to what she was doing.  She acted deliberately and purposefully.  She was aware afterwards of what she had done. …”

There is nothing in this ground.

12.I should conclude by endorsing the magistrate’s comments concerning the whole of the evidence against the appellant.  He said this :

“… The defendant took the wrapping off P1 [the gift item] and then acted so as to conceal those items inside the bag she was carrying.  Now, having done that, she then went and collected other items and went and paid for them.  Having done that, she then goes back to where some biscuits are, [she] takes them, and then conceals them in a Mannings bag; all this, before leaving the store. 

These are not indicia that are consistent with a person being preoccupied and inattentive.  The simple explanation for them is that they are done deliberately.  And matters do not end there.  Because when the defendant is challenged, she then makes an admission as to her motive for taking these items. 

She tells the store detective that she was acting out of momentary greed.  And later on, she admits to a police officer that she knew she was wrong, that what she was doing was wrong.  All these [do] show a deliberate, purposeful act which the defendant realised she had done and was remorseful about shortly after she had done it.  This is positive evidence of [her] state of mind.”

13.The case against the appellant, even with the evidence of Dr Chan, was overwhelming.

14.The appeal is dismissed.

Mr Frederick Chung, SGC of the Department of Justice, for HKSAR

The Appellant in person, present