HKSAR v. Daquioag Florencia Hagunos
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HCMA1097/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE (Appellate Jurisdiction) MAGISTRACY APPEAL NO. 1097 OF 2008 (ON APPEAL FROM ESCC 3492 OF 2008) ----------------------
---------------------- Before : Hon Saw J in Court Date of Hearing : 26 May 2009 Date of Judgment : 10 June 2009 ---------------------- J U D G M E N T --------------------- 1.On 27 August 2008, the appellant was convicted after trial of one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210. She was sentenced on 10 September 2008 to be imprisoned for 3 months which sentence was suspended for 12 months. 2.This is her appeal against conviction. She was in the trial represented by Mr Boase, a solicitor assigned by the Duty Lawyer Service. In the appeal she was represented by Mr Acton-Bond. 3.The particulars of the offence alleged that the appellant had between 10 and 17 July 2008 at Flat B, 14th Floor, Aik San Mansion, 355-361 King’s Road, North Point stolen a silver ring valued at $5,000 (“the ring”), the property of Tam Ka Chun. 4.The appellant was at the material time employed as a domestic helper. The alleged victim Tam Ka Chun, who was PW1 in the trial, was the appellant’s employer. The dates specified in the particulars of the charge was the period she had been employed by PW1. The address specified was the premises where she was employed and the ring was PW1’s wedding ring. The facts 5.On 10 July 2008, the appellant commenced to work for PW1 and his wife as a domestic helper at their apartment in North Point. This was a 500 square feet apartment occupied by PW1, his wife and their 10-year-old son. The appellant and the son shared one bedroom and PW1 and his wife the other. 6.On the afternoon of 17 July 2008, there was an altercation between PW1 and the appellant. It was PW1’s evidence that this came about because the appellant was talking on the telephone whilst doing the housework. The upshot of this altercation was that the appellant rushed to the lavatory where she called the police who attended shortly after. 7.For reasons not apparent the police arrived to investigate what they thought was an allegation of indecent assault by the appellant. This may have been a communication problem but nothing turns on this. 8.Yeung Wing Tak (“PW2”) was one of the police officers who attended the scene in response to the appellant’s telephone call. He made enquiries of the appellant and determined that there was no allegation of indecent assault. The appellant told PW2 that PW1 had become very angry with her because she had not followed his instructions to the letter and that he had “banged the table” and shouted at her which had scared her to the extent that she rang the police. It is apparent from the evidence that PW1 did not know that the appellant had called the police until they presented themselves at the door of the flat and explained why they were there. 9.Leung Fung Yee (“PW3”) who was the agent who had arranged the appellant’s employment with PW1 and his wife was summonsed and arrived at the premises. She had been contacted both by the appellant and by PW1’s wife who also returned to the premises. 10.By the time PW3 arrived, emotions were running high. The appellant was apparently agitated and crying. 11.PW1 and his wife decided to dismiss the appellant and instructed her to pack her belongings and leave. 12.It was the prosecution’s case that PW1 insisted that this should be done in his presence. The appellant packed her suitcase and finally was asked by the woman police officer who was present to remove the contents of a brown handbag so that they could be examined. As she was doing this, the ring fell to the floor. This was identified by PW1 as being his wedding ring which had previously been kept in a cabinet in the master bedroom. 13.The appellant was asked by PW2 how the ring came to be in her handbag. She denied that the ring had been stolen by her. 14.The appellant called one witness but did not give evidence herself. That witness had previously employed the appellant for some 8 years. She attested generally as to the appellant’s good character and gave a specific example of her honesty and reliability. 15.The 3 witnesses called in the prosecution case were cross-examined on behalf of the appellant. There were inconsistencies in their accounts of some aspects of the events of that day but these were, the magistrate observed, not as to material issues. Issues at trial 16.It was common ground that the ring had been in the appellant’s handbag. In the trial it was submitted that absent other evidence it would not be proper to draw an irresistible inference that it was the appellant who placed the ring in her handbag, and that she had done so dishonestly. It was said on the appellant’s behalf that a thief would not have called the police to the scene of her crime for whatever reason. Nor would she clarify with the police that she had called them not because she had been indecently assaulted by PW1 but because she was frightened. 17.In the final analysis the fundamental issue for the magistrate to determine was whether the prosecution had established to the requisite standard that the appellant had taken the ring and placed it in her handbag. If that was established then in the circumstances it was inevitable that the magistrate would conclude that she had done so dishonestly. The perfected grounds of appeal and submissions 18.There were originally nine perfected grounds of appeal against conviction. Not all of these were pursued by Mr Acton-Bond. Of those that were, grounds 1 to 3 and 5 can be taken together. 19.The primary thrust of these grounds of appeal taken together is that it was not possible in all of the circumstances for the magistrate to conclude that the only irresistible inference to be drawn from the evidence was that the appellant had dishonestly appropriated the ring and placed it in her handbag. It is submitted that other reasonable inferences consistent with the appellant’s innocence could readily be drawn from the evidence. 20.In support of this submission Mr Acton-Bond submits that the fact that the 10-year-old son of PW1 shared a room with the appellant raises the real possibility that he could have placed the ring in the appellant’s handbag. 21.This was a submission made on behalf of the appellant before the magistrate. The magistrate rejected this theory as he did the suggestion that the appellant could have accidentally placed the ring in her handbag. He was to my mind correct in so doing. The proposition that the son of PW1, or someone else could have placed the ring in the appellant’s handbag was entirely speculative. Any oblique suggestion that PW1 had placed the ring in the appellant’s handbag as a consequence of her having called the police was likewise without an evidential foundation. It must be remembered that PW1 was unaware that the appellant had called the police until such time as they arrived at the entrance to the flat. 22.Mr Acton-Bond submits that the magistrate could not discount the possibility that the appellant may have inadvertently “scooped up” the ring whilst packing her belongings. Again with respect this is speculation. The unchallenged evidence of PW1 was that the ring was kept in a cabinet in the master bedroom. There was simply no basis for the suggestion that it migrated to the appellant’s room that she shared with PW1’s son and was then “scooped up” in the confusion which surrounded the appellant’s dismissal and directions to leave. There was no suggestion that the appellant had any of her belongings in the master bedroom. There was no evidence as to whether or not the appellant had placed anything in the handbag in the course of packing her belongings. 23.Ground 4 dealt with inconsistencies in the evidence of the prosecution witnesses. 24.When the ring fell to the ground from the appellant’s handbag, PW1 and PW3 recalled that it was wrapped in tissue paper. PW2 was sure that it was not. The magistrate did not in the circumstances consider this to be material to the matters in issue. I agree. In the instant case, there was no dispute that the ring fell from the appellant’s bag. It was not material to any matter in issue whether it was or was not wrapped in tissue paper. 25.Another inconsistency which emerged was as to the sequence of events following upon the summary dismissal of the appellant and the instructions given to her to pack her belongings in the presence of PW1. Both PW2 and PW3 recalled that it was PW1 who insisted that the appellant pack her belongings in his presence. PW1 for his part thought that it was PW2 or PW3 who had directed that this be done. I have considered the evidence of the witnesses and am satisfied that these differences are not material. It did not matter who it was that told the appellant that she must pack her bags and that these should be inspected before she left the premises. All of the witnesses accepted that she had been told this and had acted in response to it. There was no issue but that this was a direction to her. Whether it was PW1 or the police officer who told her to do it matters not in the circumstances of this case. 26.The magistrate was not obliged to address every discrepancy or inconsistency in the evidence unless it was material to the issues in the trial. It was submitted that the magistrate did not give proper consideration to an answer given by PW1 in the course of cross-examination. It was put to PW1 that “In fact, [the Appellant] is the one who volunteered to bring out and put the things on the floor and have them checked to put in the bag”, to which PW1 answered “yes” I am satisfied that this was clearly an answer which was predicated upon the premise that PW1 or PW2 had insisted that her belonging be inspected as she packed them. It is apparent that the answer was directly referable to where it was that this inspection would take place. The apparent concession by PW1 was not to the effect that the appellant volunteered to have her belongings inspected as she packed them. There is no merit in this complaint. 27.Grounds 6 and 7 were not pursued by Mr Acton-Bond. 28.Ground 8 suggest that the magistrate did not give sufficient weight to DW1’s evidence of good character. 29.The magistrate summarised DW1’s evidence. He said :
In his reasons for verdict he said :
Nothing more was required. Given that appellant did not give evidence, the relevance of her previous good character was as to propensity and the magistrate was obviously alive to this. The fact that the appellant was subsequently convicted, despite there being evidence of positive good character, does not mean that the magistrate did not give it proper weight. 30.The magistrate was left with the fact that the ring was in the appellant’s handbag. Notwithstanding that there was evidence of positive good character called in the defence case the magistrate was entitled to draw the inferences that he did. 31.Ground 9 is to the effect that the magistrate “showed a less than sympathetic attitude to questions in cross-examination that show that there was a lot of confusion in a small flat”. 32.How this arose was that the magistrate queried the relevance of part of the cross-examination of PW1. The exchange between the magistrate and the appellant’s solicitor was as follows :
The magistrate was obviously trying to assist the appellant’s solicitor to focus his cross-examination on matters relevant to the issues. There is no substance in the suggestion that he was “unsympathetic” nor does that amount to a ground of appeal. 33.Given the above the conviction is neither unsafe nor unsatisfactory and the appeal is dismissed.
Ms Wong Kam Hing, Senior Public Prosecutor of Department of Justice, for the Respondent Mr Jonathan Acton-Bond, instructed by Messrs Boase Cohen & Collins for the Appellant |