HKSAR v. Bernardino Laila Garvo

HCMA522/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 522 OF 2011

(ON APPEAL FROM ESS NO. 2885 OF 2011

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BETWEEN

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Before : Hon M. Poon J in Court

Date of Hearing : 7 February 2012

Date of Handing Down Reasons for Judgment : 10 February 2012

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of one count of theft, contrary to s. 9 of the Theft Ordinance, Cap. 210 and was sentenced to a fine of $100 and one month imprisonment suspended for 12 months. She appeals against conviction.

2.Madam Lam was the employer of the appellant since May 2010.  She noticed that various items, such as her children’s clothings and toys, were missing.  Finally the police were contacted, and the items as specified in the particulars of charge were found amongst appellant’s belongings.  Madam Lam said that these items belong to her daughter and son and were not gifts given by her to the appellant. 

Defence Case

3.The appellant elected to give evidence.  She testified that the 5 pieces of items of clothings were given to her daughters by PW1.  The pair of socks were bought in Shek Kip Mei, whilst the hole-puncher was picked up from a rubbish bin its condition was dusty and rusty.

Grounds of Appeal

4.The perfected grounds of appeal are as follows :

(1) the magistrate erred in rejecting the appellant’s evidence before considering the credibility and reliability of the Prosecution witness;

(2) the Magistrate erred in finding that the baby clothes could not have fitted the appellant’s 4-year-old daughter, and the hole puncher was not a discarded item because it was not rusted, thus rejecting the appellant’s evidence; and

(3) the conviction was unsafe and unsatisfactory.

Respondent’s Reply

5.It was submitted by the Respondent that whilst in the oral reasons and Statement of Findings the Magistrate had dealt with the evidence of the appellant before he dealt with PW1’s, this does not mean that he had not considered the overall evidence, nor that he had not applied the same fair standard in assessing evidence of each side.

6.It was further submitted that the Magistrate had analyzed the Defence evidence against objective facts : i.e. the age of the appellant’s daughters and the size of the items, and that it was only mentioned by the appellant for the first time in re-examination that the size of her younger daughter was extraordinarily small to be able to fit into the small item of clothings; as well as the condition of the hole-puncher.  The Magistrate was entitled to accept the Prosecution evidence and reject that of the appellant, and find that the none of the items were gifts, or abandoned items, as alleged by the appellant and she had the dishonest intention to steal them.

My Judgment

7.Magistracies appeals are rehearings in the sense that I have to decide this case on the evidence as the Magistrate had seen and heard, with the assistance of the transcript and the Statement of Findings.

8.This case turns on credibility of PW1 and the appellant. In his statement of Findings, the Magistrate has laid out the details of his analysis of the evidence.  Whilst counsel for the applicant relied on the case of HKSAR v Ejegi, Edwin Robert, HCMA502/2010 in submitting that the Magistrate should not have rejected the applicant’s evidence before he went on to assess the Prosecution evidence, I am of the view that counsel’s understanding of that judgment is misconceived.  Paragraphs 17 and 18 of that judgment have to be read together and not in isolation.  What Hon Saw J said there was that the same test had to be applied when evaluating the Prosecution and the Defence case, “if a court is to determine whether one of two diametrically opposed accounts is more reasonable than the other.”

9.There is no question of different test being applied in the present case.  It is clear that the Magistrate, who has considerable experience, has independently assessed the Defence and Prosecution evidence.  In rejecting the Defence and accepting Prosecution evidence, he has applied common sense and experience in life and cannot be faulted for that.  He said :

“ I had the opportunity of examining P7. I found that it was in good condition. The paint was smooth and intact. No where could I find any traces of rust at all. While one can clean the dust, I failed to see how one can get rid of the rust without damaging the paint. The Appellant obviously was not telling the truth.

14. As far as PW1 was concerned, I found her evidence logical and reasonable. She was able to explain in clear term why she was so certain that she didn’t give P1 to P7 to the Appellant. For P1, she explained that it had never been worn up to time of missing, therefore it wasn’t a used item. For P2, it’s a corduroy pant which she thought didn’t fit the weather of Philippines and therefore would be no use to the Appellant’s children. For P6, it was one of the two pairs of socks her boss gave her baby son as gift. For the rest of the exhibits, they’re still being used before missing.

15. In any event, P4 to P6 were baby clothings belonging to PW1’s baby boy, it’s against common sense that PW1 would think of giving them to the Appellant’s daughters who were already aged six and four.”

10.Whilst the applicant’s account in her interview was consistent with her evidence in Court, the matters remains an overall assessment of the applicant’s evidence.

11.It is not a case where a Magistrate erred in accepting the Prosecution case because he had rejected the applicant’s evidence.  It is a matter of style for the Magistrate to deal with the applicant’s evidence first.  The Magistrate had borne in mind that even if the Defence evidence were to be rejected, he had to be sure that the Prosecution evidence could stand on its own feet and proved to the required standard. 

12.There is nothing which causes me to think that the assessment by the Magistrate was anything other than sound observation and reasoning.  The Magistrate was entitled to form the view as he did in his Statement of Findings and I would have come to no different conclusion had I been the trial Magistrate.

13.There is ample evidence to support the conviction.  The appeal against conviction is dismissed.

Miss Peggy Lo, SPP of Department of Justice, for HKSAR.

Mr James Tze Ying Kuen, instructed by Messrs A.M. Mui & Kwan, Assigned by D.L.A., for the Appellant.