HKSAR v. Avellaneda Dulce Tampus and Others

DCCC 1012/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1012 OF 2012

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Reasons for Verdict

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1.The 1st defendant faces a charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Charge 2 on the charge sheet.

2.It is alleged that on 20 August last year she dishonestly received a wrist chain knowing or believing it to be stolen goods. The background to this charge is the subject of admitted facts.

3.On the evening of 20 August last year, the 2nd defendant, Jean Tan Enriquez, and the 3rd defendant, Angel Rafanan Villanueva, committed a burglary at the home of Miss Juliet Balicao who runs a domestic helpers’ agency.  The burgled premises were at 480-482 Hennessy Road in Causeway Bay. 

4.A substantial quantity of jewellery was stolen that evening, 11 wrist chains, 4 necklaces, 16 rings, 3 watches, 8 earrings, 2 pairs of earrings, 5 pendants, a coin bag, 3 bracelets as well as $6,000 in cash.

5.On the same evening the defendant and one of the two burglars, the 2nd defendant, together entered the Wo Fung Pawnshop in Causeway Bay where the 2nd defendant pawned four of the stolen items and received $11,500 and the defendant pawned one of the stolen items, a wrist chain, and received $700.

6.There is no dispute that the defendant received the stolen wrist chain.  The issue in this trial has been her state of mind, whether when she did so she knew or believed that it was stolen goods. 

7.The defendant gave evidence to explain her possession of the wrist chain.  She said that she had been employed as a domestic helper in Hong Kong for a number of years.  During her time in Hong Kong she had been lent money by Miss Balicao, PW1, the victim of the burglary whom she described as a good friend, and who since 2010 had kept her passport as security for the loans. 

8.In early August 2010 her employment was terminated by her employer and she was coming to the end of the 14-day grace period allowed by the Immigration Department before she was required to leave Hong Kong.  Miss Balicao had refused to return her passport until she was repaid.  The amount the defendant owed Miss Balicao at that time was $9,000.  Ultimately, Miss Balicao agreed to return the passport if the defendant paid $1,000 of the debt.

9.At the time that Miss Balicao was insisting on full repayment, the defendant had asked the 2nd defendant who was also a friend to help in making repayment.  The 2nd defendant said that she herself did not have money to help the defendant but would find a friend to help. 

10.On 20 August 2012, the evening of the burglary, the defendant had called the 2nd defendant from Causeway Bay and once again asked the 2nd defendant for help.  The 2nd defendant said she would go and ask a friend if she could help.  She later met the 2nd defendant at Victoria Park. The 2nd defendant produced a wrist chain telling her that her friend had been prepared to lend the wrist chain to her and had agreed that it could be pawned.

11.The defendant had agreed with the 2nd defendant that if the defendant was able to return to Hong Kong, she herself would redeem the wrist chain, but if not, then the 2nd defendant would redeem it for her and she would reimburse her in the Philippines.  In the meantime the 2nd defendant would pay the interest due to the pawnbroker on her behalf.

12.In examination-in-chief the defendant said that when they arrived at the pawnshop, the 2nd defendant had pawned an item of jewellery herself.  The defendant had asked the 2nd defendant why she had to pawn something and the 2nd defendant had replied that she had done so that she also could have money.  She said that she borrowed the jewellery from the same friend.  The defendant had then pawned the wrist chain and told the 2nd defendant that she could only obtain $700 from it rather than the $1,000 she needed.  The 2nd defendant had then proceeded to pawn several more items of jewellery.

13.The defendant said she was very surprised that the 2nd defendant had so many pieces of jewellery.  The 2nd defendant had then offered her the extra money that she needed.  The defendant said she did not accept it as she was very suspicious because the 2nd defendant had so many items of jewellery and she wondered why anyone in their right mind would be prepared to lend so many items of jewellery.  However, the 2nd defendant persisted in her explanation that the items had been lent to her and the defendant believed her.  They had then parted.

14.The following day she arranged to meet Miss Balicao as she hoped to obtain her passport back from her as well as the air ticket that Miss Balicao was arranging to give her on behalf of her former employer.  Miss Balicao told her about the burglary and that the 2nd defendant had been identified by one of her neighbours.  The defendant denied that she herself had been involved.  Miss Balicao informed the police of the defendant’s arrival at her office and they came and invited her to the police station.  At that stage the defendant believed that she was simply helping the police to locate the 2nd defendant.

15.In cross-examination the defendant was asked about the transactions at the pawnshop.  Her evidence then was that she first saw the 2nd defendant handing an item to a member of the staff of the pawnshop and had asked her why she was pawning something.  She herself had then handed the wrist chain to another member of staff and was negotiating whether it was possible to obtain $1,000 rather than the $700 offered by the staff member.  The member of staff had not been prepared to offer more than $700 and she had told the 2nd defendant.

16.At that time she saw the 2nd defendant was holding a few thousand dollar notes and the 2nd defendant had offered to give her more money.  She said that she was suspicious because the 2nd defendant had then showed her another piece of jewellery.  It was then that she declined to accept the money from the 2nd defendant.  The 2nd defendant had persuaded her that she was telling the truth about how she obtained the jewellery.  At this point she said that although she had handed over the wrist chain, the transaction was still being processed by the pawnshop and she had not received her $700.

17.In considering the defendant’s credibility and whether she was a person who would commit this sort of offence, I have borne in mind her previous good character.  However, I did not believe the defendant’s account. 

18.On her account she knew that the 2nd defendant was a domestic helper and thought the 2nd defendant was possibly earning the minimum approved wage of $3,700 per month.  The 2nd defendant had told her that she did not have money to lend her, yet suddenly she was able to produce items of jewellery which the 2nd defendant was able to pawn for thousands of dollars.

19.Even if the 2nd defendant had given her an explanation that she had borrowed the items from a friend, I am satisfied that the defendant would not have believed it and would have firmly believed that what the 2nd defendant was pawning, and the wrist chain that the 2nd defendant had given her, were stolen goods.  At this stage her own transaction with the pawnbroker had not yet been completed and she could have asked for return of the wrist chain.  However, I did not believe the defendant’s account of events.

20.The 2nd defendant had just burgled Miss Balicao’s home.  I am satisfied that there is no way in those circumstances she would herself have pawned part of the stolen property in the presence of somebody who had no knowledge of what had occurred.

21.It is even more implausible bearing in mind the unchallenged evidence of Miss Balicao that both the defendant and the 2nd defendant were people who were close to her and who came to her house and even slept at her home.  From the point of view of the 2nd defendant, she would know that it was likely that Miss Balicao would tell the defendant about the burglary.  In such circumstances the defendant would be likely to reveal to Miss Balicao that the 2nd defendant had pawned jewellery at the pawnshop.

22.The only reasonable inference in the circumstances is that the 2nd defendant would have made known to the defendant that the wrist chain was the proceeds of theft.  In such circumstances I am satisfied the prosecution have proved the guilt of the defendant beyond reasonable doubt and I convict the defendant on the 2nd charge.