HKSAR v. Chan Wai Kei

HCMA 780/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 780 OF 2010

(ON APPEAL FROM FLCC 3066/2009)

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BETWEEN

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Before: Hon Mackintosh J in Court

Date of Hearing: 2 December 2010

Date of Judgment: 2 December 2010

Date of Reasons for Judgment: 21 January 2011

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J U D G M E N T

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1.This is an appeal against conviction the theft from a Mannings store in Sheung Shui on the 1 August 2009, for which the appellant was put on probation. The issue was not whether the appellant had put the items the subject of the charge, ladies’ cosmetics, worth in all, $209, into his bag and left the shop without paying: it was whether he had done so dishonestly. Two PWs, a security officer and a police officer were called. The appellant gave evidence and called a psychiatrist as DW2.

2.The appellant was represented by counsel instructed by the duty lawyer service in the magistracy.  He has appeared in person in this appeal.  No perfected grounds of appeal have been submitted.  The home-made grounds of appeal assert that the magistrate was wrong to find that the appellant had the necessary dishonest intent given the medical evidence which had been called on his behalf to show that, at the time of his medical examination, some six months after the alleged theft, he was suffering from depression which may have led to absent-mindedness.

3.It is right to record here that when this case was listed for the hearing of the appeal against conviction, the appellant was at first absent.  After enquiries by my staff and the officer in the case he was eventually traced, on the morning of the hearing, to Shenzhen.  He said he would return to Hong Kong in the afternoon, which he duly did.  When he arrived in the afternoon, he applied for an adjournment of the hearing on the footing that he had not been aware of the appeal being listed and he wanted to apply for legal aid.  However, a letter informing him of the hearing date had been sent by registered post to the address in Tsing Yi which he given had earlier in the proceedings.  It had not been returned.  At one point, he told me that he lived mainly in Shenzhen and returned only occasionally to the Tsing Yi address.  He had, he said, approached the Legal Aid Department since filing his notice of appeal; but they had told him he had to obtain the leave of the court before they could consider his application.  He had taken no further step; he had made no approach to the duty lawyer service who had represented him in the magistracy and no approach to this court or to the Magistrate’s Court to enquire of the progress of his appeal.  This appellant is a layman of course; but he is well educated having obtained a qualification in legal studies (as shown in the probation report); and he was formerly employed as a court bailiff.

4.The fact is, he had simply done nothing of any significance with regard to his appeal and now, when a court day had been set aside, a prosecutor assigned, and the courtroom reserved, he claimed he was entitled to postpone the proceedings.

5.Of course, it is essential to ensure the fairness of all aspects of criminal proceedings; but that is not to give licence to litigants such as this appellant to manipulate the courts to suit themselves.  I made detailed enquiries of the appellant and was satisfied that he had simply abandoned his responsibilities with regard to his appeal.  The consequences are not to be measured simply by wasted costs, though that is one factor; but if a whole court day is wasted in this manner, it has an impact on other cases, perhaps more meritorious, waiting to be heard and which may involve appellants in custody.  This case was straightforward.  It involved one issue, which the appellant clearly understood by his application for adjournment in which he was able to identify the issue as being “mens rea”. So it was not a complex matter where legal assistance would be necessary to advance the appellant’s case properly.

6.The appeal, as set out in the appellant’s grounds of appeal, was essentially the same as the case advanced on his behalf by a barrister in the magistracy.  I was satisfied that he would not be disadvantaged by acting in person, especially as he had presented his application for an adjournment in an organised and articulate manner.  I therefore refused his application and directed that the appeal to proceed.  I have explained the practices and procedures of magistracy appeals to the Appellant and have given him such a licence as a litigant in person should, in fairness be accorded.

7.The appellant’s submissions were essentially the same as his evidence.  Indeed, they amounted to a recapitulation of his evidence, particularly as to his depression and the reasons for it and his claim that he was in a rush because he was due to meet his girlfriend in Shenzhen, but was late, having taken a wrong bus.  He added that he was hungry and that his depression made him absent-minded and forgetful and that this was exacerbated by low blood sugar. (As to which, the Respondent pointed out his evidence that he had some biscuits.)  He detailed the fact that he had seen a psychiatrist privately in August 2009 and that his depression was not just something which had arisen because of his conviction.

8.PW1 was a security guard whose evidence was to be taken together with a CCTV recording of part of the actions of the appellant in the Mannings store.  The original CCTV had been recorded onto a hard disc which PW1 had transferred onto a VCD and handed to the police.  It was only at trial, when he looked at it, that he realised that some minutes towards the end of the incident had not been properly transferred and were missing.  The magistrate was satisfied, and I agree, that the absence of this portion of the recording had no impact on the trial.  Most of the appellant’s material actions in the shop were shown on the CCTV recording which I have been played on a VCD in court during this appeal.  That VCD was described as a working copy of the CCTV recording, which the prosecution say was the one played at trial and is therefore exhibit P7a. However, on the disc, and its packaging, there is no court exhibit label. Indeed, on none of the items said to be the physical exhibits in the trial is there any such label. The appellant says that the disc played during the course of this appeal is not the one played at trial, though it is not entirely clear what the differences are said to be.  I consider it appropriate to ignore what I have seen of this CCTV recording and to rely instead on the magistrate’s description of what was seen on the VCD played at the trial, which includes the account of Dr Yu, the appellant’s witness as to what she could see.

9.The significance of the recording, as described, is that it showed the appellant to be acting in a deliberate and conscious manner, rather than absentmindedly; to be behaving in a leisurely fashion, and not in a rush as he claimed.

10.PW1 testified that he saw the appellant select the six items and put them into a bag that he was carrying before leaving the shop and enter a fast food restaurant next door where he intercepted him; and the appellant said he was going to make payment now. The police were called, and PW2 arrived and arrested and cautioned the appellant who, according to PW2, gave no explanation.

11.The appellant’s evidence was to the effect that for reasons which he explained, he was in a state of depression at the material time. Furthermore, he was due to meet his girlfriend over the border in the mainland; but was running late.  He said his depression caused a loss of concentration and poor memory, so he was in a rush in the shop, although, he was, on his own evidence, in there for about 15 minutes, a concession which flatly contradicts his claim to be in a rush to meet his girlfriend in Shenzhen.  He was also distracted by a promoter and that caused him to leave the payment queue and to look for other items.  Then, for no particular reason, he had left the shop.  He said that he had not eaten some time and was very unhappy and that contributed to his departure from the Mannings shop and entry into the fast food restaurant. He had no idea why he put the items in question in his bag.

12.The CCTV did not show him queuing to pay and PW1 was adamant that he did not do so.

13.The appellant’s witness was Dr Yu, a psychiatrist at the psychiatric centre at West Kowloon hospital.  She first examined the appellant in mid December 2009, several months after his arrest; she found him to be suffering at that time from severe depression or ‘persistent low mood’, which was attributable to multiple social issues and the fact that he had been arrested and charged.  If he was suffering from such depression at the time of the alleged offence, this might have induced absentmindedness or inattention.  Such depression could lead to impairment of concentration and absentmindedness which could be a reason for forgetting to pay for the items in question. However, she also noted that he was able to continue with his work as a private tutor at the time; and that his behavior at the shop, as depicted on the CCTV recording, showed him to be acting in a calm and relaxed manner; and not rushing or under pressure.  She concluded that it was unlikely that his concentration was impaired (“deprived”).

14.The magistrate reviewed and considered PW1’s evidence, and that of Dr Yu, in the context of what he had himself seen on the CCTV recording.  He concluded that the appellant was acting in a leisurely manner as he browsed the shelves; and that there was no sign of hasty action or of him being under pressure.  The magistrate concluded that PW1 was honest and reliable.  On the other hand, he rejected the appellant’s version of events which clashed not only with PW1 in material aspects; but also with the CCTV recording shown at trial.  The magistrate held that it was clear that the appellant was not under pressure of time whilst in the shop for about 15 minutes.  He rejected the appellant’s claim that he had at one point been queuing to pay them and then had left the queue.  His case was not supported by the evidence of the psychiatrist, DW2, whose evidence the magistrate accepted.  There was no evidence to support the appellant’s claim that he was consulting a psychiatrist privately at the time of the offence; but even assuming that to be true, and that he was suffering from depression at the time, it had little impact on the conclusions of Dr Yu.

15.I am satisfied that the magistrate was entitled to conclude that the witnesses other than the appellant himself had been honest and reliable; and he was entitled on the evidence to come to the conclusion that the prosecution had proved that the appellant was acting consciously and dishonestly at the material time and that his conduct in placing the items into his bag and leaving without paying had not been the result of absent-mindedness.  There is nothing in this submission of the appellant to this court which casts any doubt on the findings made by the magistrate.

16.Accordingly, there is no merit to this appeal against conviction which must be dismissed.

Ms Irene Poon, Senior Public Prosecutor of the Department of Justice, for the Respondent

Appellant, in person, present