HKSAR v. Catacutan, Preslyn-saga

HCMA 31/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 31 OF 2007

(ON APPEAL FROM ESCC 3576 OF 2006)

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BETWEEN

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 7 August 2007

Date of Judgment: 8 August 2007

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J U D G M E N T

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1.The Appellant is a woman of previous good character in her early 30s.  She was convicted after trial before Winston Leung, Esq. in the Magistrate’s Court at Eastern on two charges of theft.  The Magistrate sentenced her to 6 months’ imprisonment by way of concurrent terms of that length on each charge.  She now appeals against conviction and sentence.

2.At the time of the offences of which she was convicted, the Appellant worked as a domestic helper at the home of a well-known entertainer, Mr Cheung Hok-yau.  The offences were charged as having been committed at the premises where the Appellant worked.  Charge 1 is of stealing a personal letter addressed to Mr Cheung and therefore his property.  Charge 2 is of stealing three photographs which were Mr Cheung’s property.  The charges did not state the value of that letter or those photographs.  But the Magistrate was of the view that they could be of high commercial value given what he called Mr Cheung’s “celebrity status”.

3.As to the letter, the Appellant’s evidence was that she had put it in her bag with a view to handing it over to Mr Cheung in due course, but had forgotten to do so.  As to the photographs, two larger ones being of Mr Cheung and his wife on social occasions and a smaller one being Mr Cheung’s wife’s passport photograph, the Appellant’s evidence was that she had taken them because she was a fan of Mr Cheung.  She said that Mr Cheung had consented her keeping the two larger photographs or that she had reason to believe that he would consent if he had known about it.  Mr Cheung’s evidence was to the contrary.

4.The Magistrate rejected the Appellant’s evidence.  He felt satisfied beyond reasonable doubt that the Appellant had stolen the letter and the three photographs.

5.I have considered the various perfected grounds of appeal filed on behalf of the Appellant and her counsel’s arguments put forward in support of these grounds.  I do not propose to recite these grounds or arguments.  Most of them are directed to the facts.  I am not persuaded that any of the matters to which they are directed render the convictions unsafe, unsatisfactory or unfair.  Part of them are directed to a complaint that the Magistrate did not direct his mind, or sufficiently direct his mind, to the test of dishonesty which was laid down in the English case of R v. Ghosh [1982] QB 1053 and has been adopted in Hong Kong.  The test is well-known and there is no reason to think that the Magistrate had anything but that test in mind when he found, as he did, that the Appellant had been dishonest.

6.There is a passage of the Magistrate’s Statement of Findings (in which the Appellant is referred to as “D” and Mr Cheung’s wife is referred to as “Ms Lo Mei-mei”) where the Magistrate says as follows:

“D admits that she found Ms Lo Mei-mei’s passport photograph in the dustbin on 18 July 2006.  As a matter of common sense, no one would throw away one’s passport photograph unless obliged by circumstances to do so.  In July, Ms Lo Mei-mei should not be at home to throw away her passport photograph.  I do not believe D took it because Ms Lo Mei-mei was her idol.  Ms Lo Mei-mei was at that time not a singer or an artist, and D had only known her for 2 months.  On legal principle, the article thrown in dustbin is not meant to be taken away by servant.  It is meant to be collected by scavengers and to be destroyed.  Taking an employer’s photograph from the dustbin to keep by a servant still amounts to theft.”

7.It is not clear whether the Magistrate accepts that the passport photograph may indeed have been in a dustbin.  It is unsafe, I think, to assume that he excluded that as a reasonable possibility.  On the basis of that as a reasonable possibility, the Magistrate’s conclusion that the Appellant’s state of mind must nevertheless have been dishonest is problematical.  But that does not result in an overturning of the conviction on the charge in question since it can stand on the theft of the two larger photographs.

8.One of the complaints made on the Appellant’s behalf is that the Magistrate asked questions which went beyond his proper role.  I am not persuaded of this, and even if the Magistrate asked questions which it would have been better for him not to have asked, I see no basis for holding that such questioning rendered the trial unfair or its result unsafe or unsatisfactory.

9.There was some discussion during the hearing before me on whether there should have been, or perhaps ought now to be, an amendment of the charge period mentioned in the second charge.  I am satisfied that there is no problem about the charge period which goes to the fairness of the trial or to the safety or satisfactoriness of the conviction.

10.I find no basis on which to disturb either of these convictions, and the appeal against conviction is dismissed.

11.So I turn to the appeal against sentence.  The Magistrate was right to bear in mind that theft by a domestic helper from an employer at his home involves a betrayal of trust.

12.What does trouble me, however, are the Magistrate’s statements that the Appellant “had all the trappings of a spy in Mr Cheung’s household”; that her conduct is “all the more vicious in that she had the intention of selling the privacy of her employer for money”; and that for the exploitation of an employer’s “celebrity status” the “deterrent must be harsher”.

13.As it seems to me, the detriment to the employer and the gain to the domestic helper in a case like this might both be considerably less than when the theft is of, for example, a large sum of cash stolen from an employer of relatively modest means.

14.Depriving someone of timely receipt of a letter can cause them considerable loss and inconvenience.  But there is no evidence as to what harm arose out of the theft of the letter to Mr Cheung in the present case.  All the items stolen could have some commercial value arising out of Mr Cheung’s position as a well-known entertainer.  But there is no evidence as to the value or range of value of any of the items concerned.

15.This case cannot be regarded as trivial.  Even so, I am left with the impression that the Magistrate formed a considerably exaggerated view of the Appellant’s role and the harm she caused.  It is impossible to say what lesser sentence he would have passed if he had not, in his anxiety to do the right thing, fallen into that error.  Doing the best I can in all the circumstances, I allow the appeal against sentence so as to cut each concurrent term by half, so that the Appellant’s total sentence is reduced from 6 months’ imprisonment to 3 months’ imprisonment.

Mr Jonathan ACTON-BOND, instructed by Messrs Au Yeung, Cheng, Ho & Tin (assigned by D.L.A.), for the Appellant

Mr Stewart HAU of the Department of Justice, for the Respondent