HKSAR v. Godagan Deniyalage Prema C

HCMA000722/2002

HCMA722/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.722 OF 2002

(ON APPEAL FROM FLCC 682 OF 2002)

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Coram: Deputy High Court Judge McMahon in Court

Date of Hearing: 19 February 2003

Date of Judgment: 19 February 2003

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J U D G M E N T

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1.This is an appeal against conviction and sentence.

2.The appellant, a domestic helper, was convicted of the theft of a pair of her ex-employer's sandals and sentenced to three months' imprisonment.

3.The issues at trial evolved in such a way as to make questions of credibility the predominant matter left for the magistrate's consideration. At the end of the day, he believed PW1, the appellant's ex-employer, and the appellant was convicted.

4.Today before me the prosecution concedes the police were in possession of information which was material and relevant to the appellant's defence at the time of trial and which was not disclosed to her. That came about in this way : The appellant had complained to the police, prior to the present matter arising, that her passport and luggage were being improperly detained by a domestic helper employment agency. When the police went to that agency (in the absence of the appellant), the proprietor told them that PW1 had complained that the appellant had stolen items from her. The police at that time then asked PW1 to come to the agency. She did so and complained that the appellant had stolen earrings from her. She made no mention of the appellant stealing anything else including sandals. By her evidence at trial, PW1 must have been aware at that time when she spoke to the police officers that the appellant had stolen the sandals, if in fact the appellant had done so.

5.Obviously this was material which should have been disclosed to the appellant for, at the very least, the purposes of cross-examination of PW1 at trial.

6.The prosecution today rightly concedes there has been a miscarriage of justice. In my view they are correct to do so. No blame is attached to the police. Two different teams dealt with the separate complaints made by PW1, and the team of police responsible for investigating the present matter were unaware of the previous complaint of PW1.

7.But there has been material non-disclosure, so far as this trial was concerned, and the conviction is therefore unsafe. I order it quashed and the sentence set aside. The only issue before me is whether there should be a re-trial.

8.In my view, no re-trial should be ordered. That is because of the relatively small value of the property involved and because I cannot envisage any real prospect of any further prosecution succeeding given the inevitable damage to PW1's credibility the undisclosed evidence will occasion.

9.Finally, I have regard to the fact the appellant has already spent a period of 19 days in custody as a result of her being arrested for the present offence.

Representation:

Ms Sally Yam, G.C. of the Department of Justice, for the Respondent

Mr Y.L. Cheung, instructed by Messrs Ho, Tse, Wai & Partners,for the Appellant