HKSAR v. Li Kwan

HCMA 660/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 660 OF 2013

(ON APPEAL FROM ESCC 436 OF 2013)

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J U D G M E N T

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1.This is an appeal against conviction, after trial, by a magistrate Miss Ho Wai Ying, of the appellant for an offence of theft contrary to section 9 of the Theft Ordinance Cap 210.

2.The appellant was fined $5,000.

Overview

3.The prosecution case was simply that the appellant had committed an offence of shop theft of various edible goods from a supermarket in SOGO Department Store at Causeway Bay (SOGO) as he had left the supermarket with goods belonging to the supermarket when no payment for them had been made.  He therefore dishonestly appropriated the goods belonging to another. 

4.It was not disputed by the appellant that he had not paid for the goods when he left the supermarket.  However, it was the appellant’s case that as he had consumed a mixture of drugs and he was under the influence of these drugs. He had no recollection that he picked up the goods and that he had not paid for the goods prior to leaving the supermarket.  Moreover as most of the unpaid goods were in a SOGO plastic bag he had purchased moments before, he believed he had paid for the goods. 

5.The appellant relied on the evidence of a psychiatric doctor who was of the opinion that as the appellant had taken the drugs his judgment and memory would have been impaired.  The effects of which would have caused the appellant not to have been able to recall if he had picked up the unpaid goods or that he had not paid for the goods. 

The Facts

6.The facts of this case are straight-forward, much of the prosecution case was admitted.  The prosecution case consisted of a set of admitted facts, the testimony of a security officer of the supermarket (PW1) and CCTV recorded footage from the supermarket. 

7.On 23 December 2012 at about 9:48 pm, the appellant entered the “Freshmart” supermarket at SOGO.  Upon entering, he walked through the aisles selecting a variety of goods which he then placed into a shopping trolley he was pushing. Of these goods chosen were the unpaid goods which were: 3 packs of sushi, 1 pack of kimchi, 1 pack of cherries and 1 golden pomelo at a total value of HK$515 (the stolen goods in the charge).  He also selected a packet of instant noodles. 

8.Prior to going to the checkout at the cashier the appellant left the shopping trolley together with the unpaid goods in it, nearby to the cashier.  The appellant then took with him only a packet of instant noodles to the cashier. At the cashier he paid for the noodles and purchased a SOGO plastic bag. 

9.After making payment he placed the noodles into the plastic bag.  The appellant then walked back into the supermarket to the shopping trolley left there by him earlier which contained the unpaid goods.  He picked up and placed all the unpaid goods but for the pomelo which he carried in his hand, into the SOGO plastic bag he had just purchased. 

10.Thereafter the appellant went to the toilet.  He subsequently emerged from the toilet and left the supermarket with the unpaid goods contained in the plastic bag while still carrying the pomelo in his hand without paying for the goods.  The security guard (PW1) who had been observing the appellant then intercepted him outside SOGO near the MTR exit. 

11.The appellant was then brought back to the security room of SOGO.  He showed to PW1 his Correctional Services Department staff card.  The case was reported to the police.

12.The appellant was arrested and cautioned for the offence of theft.  Under caution, the appellant remained silent. 

13.At the time of arrest, the appellant had cash of HK$31,052.80 with him.

14.The appellant has a clear record.

The Defence Case

15.The appellant elected to give evidence.  He testified that after gambling in Macau, he took a pellet of zopiclone for his headache prior to the hour long ferry ride to Hong Kong.  After he arrived in Hong Kong, he bought a bottle of cough syrup and consumed it all at once.  He then went to SOGO supermarket.

16.While in the supermarket he picked up the unpaid goods and a packet of noodles.  As he suddenly realised it was not Christmas Eve, he decided to buy the noodles only.  He stated that he could only recall some of incidents in the supermarket.  He was unable to recall that after he had paid for the packet of noodles and plastic bag that he walked back to the shopping cart to pick up the unpaid items that he had chosen earlier.  He believed he had paid for all the unpaid goods. 

17.With the unpaid goods in hand, he left the supermarket and walked up to level B1 intending to look for a wallet but as he did not see anything he liked therefore he left SOGO.

18.It was the appellant’s case that at all material times when he was in the supermarket, he was under the effects of the cough syrup and zopiclone he had just taken. 

19.Dr Chang Chi Lok, a psychiatrist, was called as a defence witness.  He produced a medical report which covered the effects of the drugs and combined effects of the two drugs when consumed by a person. 

20.Dr Chang was of the view, inter alia, that the effect of the drugs on the appellant was to impair the conscious level, judgment and memory.  Zopiclone was well known to cause amnesia, memory blackout, sleep walking, parasomnia and impaired judgment.  The side effects of codeine contained in the cough syrup were sleepiness, poor impaired judgment and also impairment of short term memory. 

21.Dr Chang was of the opinion that given that the appellant had taken the drugs, the appellant would not have realised what he was doing, nor would the appellant have been able to recall if he had paid for the goods.  The implication of which amounted to negating the dishonest intent of the appellant.

Grounds of Appeal

22.Ms Pauline Leung counsel for the appellant relied on three grounds of appeal.  They were as follows: -

(1)  There is no sufficient evidence where on to found the said conviction.

(2)  The magistrate erred in not giving appropriate consideration and/or attaching proper weight to the evidence of the defence expert witness ie Dr Chang Chi Lok (DW2)

(3)  The magistrate, in considering whether the appellant was acting dishonestly, failed to deal sufficiently or at all the effect of his consumption of zoplicone and cough syrup prior to the alleged offence.

The Appellant’s Submissions

23.Ms Leung correctly pointed out that the sole issue in the present case was whether the appellant was acting dishonestly.  The appellant’s grounds of appeal principally rest on the premise that the appellant had taken the mixture of zoplicone and cough syrup. 

24.Ms Leung pointed out from the transcript that the prosecution did not challenge the appellant’s evidence that he had taken a pellet of zopiclone and a bottle of cough syrup prior to entering SOGO.

25.It was Ms Leung’s submission that the magistrate erred in not accepting the fact that the appellant had taken the drugs.  Given the fact that the appellant had taken the drugs, the magistrate did not deal with the effect and extent of the drugs on the appellant in deciding whether the appellant was dishonest as the magistrate dismissed the appellant’s and doctor’s evidence. 

26.It was Ms Leung’s submissions that if the magistrate had not dismissed the doctor’s evidence she would have at least found a reasonable doubt whether the appellant was acting dishonestly.

The Statement of Findings

27.The learned magistrate properly identified the issue in para 6 of the Statement of Findings as to whether the appellant acted dishonestly.

28.After setting out the prosecution and appellant’s case and providing detailed reasons for her finding, the learned magistrate rejected the appellant’s evidence.  Although she found the doctor to be an honest witness she found him to be unreliable as his diagnosis and conclusions were based on assumptions without any verification of the facts. 

29.The learned magistrate accepted the CCTV evidence and found that PW1 was an honest and reliable witness. 

30.The learned magistrate rejected the appellant’s evidence that he had taken drugs. 

Discussion

31.Ms Leung referred to the transcript, at p 95P –  96J of the Appeal Bundle that the Prosecution did not challenge the appellant’s evidence that the appellant had taken a pellet of zopiclone and a bottle of cough syrup prior to entering SOGO.  The transcript reveals that the Prosecutor Ms Cheuk who was also the counsel for the Respondent in this appeal said at the trial:-

“I’m not trying to prejudice the defendant, or by suggesting that he never took such drugs, I’m just, you know, asking what source, you know, how the doctor arrived his conclusion ….”

32.The question here is if a fact finder or in this case, the learned magistrate is bound to accept the testimony of the appellant if his evidence is not challenged by the prosecution putting it to him, in this case that he did not take drugs.

33.Ms Leung was unable to direct me to any authority on the point that the fact-finder cannot reject the particular evidence of a witness if it was not challenged or if the case was not put to the witness. 

34.The case of HKSAR v Z, FAMC 68/2011, is authority that states that a fact finder is entitled to reject the evidence of a witness.  The Court of Final Appeal stated in paragraph 4:-

“The magistrate was not bound to accept any particular item of evidence because there had not been cross-examination on it. He made his findings on the basis of the evidence as a whole deciding to accept the prosecution version and rejecting the contrary evidence adduced for the defence.”

35.HKSAR v Z sets out that even if the evidence of a witness has not been challenged during cross-examination, the court is not bound to accept his evidence.  The court is entitled to make its findings and to decide whether the evidence of a certain witness should be accepted or rejected on the basis of the available evidence as a whole. 

36.Thus although it was not put to the appellant by the prosecution that he never took the drugs the learned magistrate was nevertheless entitled to reject the evidence of the appellant that he did take the drugs.  The magistrate was not bound to accept that the appellant had taken drugs. 

37.The learned magistrate gave detailed, firm and sound reasons for dismissing the appellant’s evidence in her findings.  In considering whether the appellant took the drugs the learned magistrate considered the evidence of Dr Chang and cogently found that the appellant did not exhibit nor was he suffering from the effects of the drugs as described by Dr Chang.  In respect of the appellant’s memory she found that it was detailed and selective.  She found it unbelievable that the appellant was unable to remember whether he had paid for the goods despite recalling the detailed extensive facts before and after paying for the noodles. 

38.As the magistrate had rejected the appellant’s evidence that he had taken drugs, it was not necessary that she consider the effects of the drugs on the appellant.

Inherent Improbabilities

39.Additionally, Ms Leung has argued the inherent improbability of the appellant committing the offence in question.  In particular, she drew the Court’s attention to the following facts:

(a) If the appellant was acting dishonestly, he could have left SOGO immediately but instead he went to the toilet with the golden pomelo in his hand;

(b) He had HK$31,052.08 in his possession at the material time of the offence, yet the stolen goods were worth only HK$515.00;

(c) The appellant’s behaviour after purchasing the instant noodles, namely, that he did not attempt to conceal the stolen goods and

(d) The appellant had a clear record and he was a staff of the Correctional Services Department.

40.The above facts and factors were all considered and taken into account by the learned magistrate in arriving at her verdict.  There was no merit in the above submissions. 

Conclusion

41.The learned magistrate gave a full and careful assessment to the evidence which had been given on both sides. 

42.It is apparent from the thoroughness of the Statement of Findings that the magistrate was very much alive to the important issues in the case.

43.The magistrate was fully entitled to have convicted on the evidence and, having reviewed the evidence with care, I am satisfied and sure that the case was properly established against the appellant.

44.The conviction was neither unsafe nor unsatisfactory.  For these reasons I dismiss the appeal.

Ms Janice Cheuk, SPP(Ag), of the Department of Justice, for the respondent

Ms Pauline Leung, instructed by Hoosenally & Neo, for the appellant