Florida Jenny Padua v. HKSAR

HCMA 148/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 148 OF 2011

(ON APPEAL FROM ESCC 5237/2010)

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BETWEEN

Before: Hon. Wright J

Date of Hearing and Judgment : 5 May 2011

Date of handing down Reasons for Judgment: 9 May 2011

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REASONS FOR JUDGMENT

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1.The appellant was convicted, after trial, by Jason Wan, Esq., on 7 February 2011 of a single charge of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210, and sentenced to undergo imprisonment for a period of six weeks. She appealed the conviction: she was granted bail pending appeal. On 5 May 2011 I dismissed the appeal, indicating that I would provide my reasons for doing so: these are they.

2.The only prosecution witness to testify was the appellant’s employer and owner of the stolen goods, a pair of earrings. Her version of events, which was accepted  by the magistrate, was simple. On the day of the offence she had looked for a bag and a pair of earrings but had been unable to find them: the earrings had been missing for some months. She suspected that the appellant may have taken the items although, when cross-examined, she accepted that prior to that day she had had no suspicions concerning the appellant who had worked for her for some three years. She had contacted a friend for advice who suggested that she make a report to the police. She did so. Police officers arrived: they went to the appellant's room. The employer asked the defendant to go there with her and the police. When they entered the room the defendant picked up a bag from the bed and extracted a coin purse which she threw aside. One of the police officers checked the coin purse which was found to contain the missing earrings. The employer was very upset and immediately left the room in tears.

3.It was firstly suggested to the employer in cross-examination that she had asked the appellant to look after the earrings for her. The employer denied this. It was then suggested to her that she was seeking to "frame" the appellant. She denied that too, pointing out that they were on good terms indicating that, but for this incident, she again would have renewed the appellant's contract when the time came.

4.The appellant testified. She said that she had found the earrings in a drawer when the family was moving out of the residence in order that renovation work could be carried out: she had asked her employer what to do with the earrings and the employer had asked her to keep them for her. It was the appellant's evidence that the earrings were valuable objects and that she had consequently decided to put them in the coin purse and had then carried them with her every day. Notwithstanding this, after the renovations had been completed she had forgotten about the presence of the earrings in her coin purse and had not returned them to her employer, who had not asked for them.

5.It was her evidence that the employer had made enquiries of her on the day of the offence as to whether she had seen a particular handbag. It was she who had suggested to the employer to look in her, the appellant’s, room which had been used as a store room whilst the renovations had been in progress. She was aware of the presence of two police officers in the premises. One of them asked her for her identity card. She looked in a bag as well as in the coin purse but was unable to find her identity card. She put the coin purse on the bed whilst she continued to search for her identity card. The police officer opened the coin purse and found the earrings. The employer said that the earrings belonged to her to which the appellant responded that it had been the employer who had asked her to look after them. The employer said nothing to contradict this assertion but turned away and left the room. She was arrested.

6.When she was cross-examined the appellant said that she had simply forgotten about the presence of the earrings in her coin purse in which she had carried them on a daily basis because of their perceived value. She denied having intended to appropriate them.

7.The magistrate noted that the appellant had no previous criminal convictions in Hong Kong and directed himself accordingly.

8.The grounds of appeal amounted simply to an attack on the magistrate's findings of credibility, asserting that he had erred in accepting the employer as an honest and reliable witness without "evaluating" her evidence or "dealing with the points raised by the defence" and in rejecting the evidence of the appellant.

9.This hearing was, of course, a rehearing on the material before the magistrate. It was necessary for me to arrive at my own decision on that material whilst keeping in mind that the magistrate had the advantage over me of having seen and heard the two witnesses.

10.The magistrate gave a compelling reason for rejecting the appellant's version: he took the view that her claim that she had simply forgotten about her possession of items which she believed to be so valuable that it was necessary for her to have carried them with her for a substantial period on a daily basis was unbelievable. That is the only realistic view which could be taken of that evidence.

11.That left the evidence of the employer. It was the magistrate’s acceptance of the employer’s evidence which was the focus of Mr. Leung’s submissions on behalf of the appellant, he also having appeared for her at trial and made the same submissions to the magistrate.

12.It was his contention that there were two aspects to her evidence which, as he put it, were "contrary to commonsense", such that they called into question the honesty of the employer. These were, first, that she had not spoken to the appellant before summoning the police and, second, that she had not denied the appellant's assertion to the police upon discovery of the earrings that it was the employer who had asked her to take care of the earrings.

13.In regard to the first point, whilst it obviously would have been open to the employer to have spoken to the appellant directly, that she chose not to do so but rather to summon the police as advised seems to me to be a perfectly sensible alternative course open to her. The second point ignores the evidence that the employer was visibly distressed by the discovery of the earrings in the appellant’s possession and immediately left the room.

14.Neither point caused me the slightest concern about the correctness of the magistrate's evaluation of the credibility of the employer. The magistrate was satisfied that the employer was a truthful witness upon whose evidence it was proper to rely. I accepted that evaluation.

15.It may be helpful to note, given that it was submitted that the magistrate failed to evaluate the evidence, that magistrate also considered, with care, the suggestion put to the employer that she was "framing" the appellant. He concluded that there was nothing to suggest this to be so. Indeed, it runs contrary to the appellant’s own case, as well as the evidence of the employer, that their relationship had been harmonious. A further feature which he was asked to consider was why, if the appellant had stolen the earrings some months before, she had retained them in her possession: he correctly declined to speculate.

16.The evidence of the employer clearly established the essential elements of the offence. The appellant was correctly convicted.

Mr Michael Cheung, Acting Senior Public Prosecutor, Department of Justice, for the Respondent.

Mr. Leung Chun-keung instructed by Director of Legal Aid, for the appellant.