HKSAR v. ALVAREZ JUVIE AGBAYANI

CACC114/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 114 OF 2007

(ON APPEAL FROM DCCC 997 OF 2006)

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JUDGMENT

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Hon Wright  J (giving the judgment of the Court):

1.  On 15 March 2007 the applicant was convicted by Deputy Judge Johnnie Chan in the District Court of nine charges, to one of which she had entered a plea of guilty.  On 30 March 2007 she was sentenced to an aggregate period of imprisonment of 32 months.  On 2 April 2007 the judge revisited that sentence when he purported to change the order which he had made earlier, leaving the aggregate period of imprisonment unchanged.

2.  She seeks leave to appeal conviction on the eight charges in respect of which she was convicted after trial.  She further seeks leave to appeal sentence on all nine charges.

3.  The background to the charges is straightforward.  The applicant was employed as a part-time domestic helper.  She did not reside in the premises of her employer:  however, before her employer went away on holiday it was arranged that the applicant would move into the premises for the period of the employer's absence.  During the employer's absence a number of items, the property of the employer, went missing from the premises (Charge 2).  Additionally, a number of cheques were removed from the employer's cheque-book, her signature forged, the cheques presented for payment and funds obtained (Charges 3, 4 and 5): in other instances, the employer 's bank refused to make payment (Charges 6, 7 and 8).

4.  Subsequent investigations revealed that some of the items missing from the employer's home had been pawned.  One item, which formed the subject matter of Charge 1, had been pawned, and thus misappropriated, even before the employer went on holiday.

5.  The applicant did not dispute that it was she who had pawned the item which formed the subject matter of Charge 1: it was submitted on her behalf that she had lacked the necessary intention to permanently deprive the employer of that item, the applicant proposing to redeem the pawned item when she was in a financial position to do so.  The judge did not accept that explanation: he found, from the applicant 's own evidence, that she had no realistic chance of redeeming the item and convicted the applicant on the basis that she treated the item as her own to dispose of regardless of the employer's rights.

6.  Charge 9, to which the applicant pleaded guilty, related to a breach of her condition of stay in that she had remained in Hong Kong beyond the permitted date. The applicant was charged alone in respect of Charge 1 and, obviously, Charge 9. 

7.  In respect of the remaining charges the applicant was charged jointly with one Marilyn Y Hobson, a barmaid and admitted drug user, with whom she was acquainted and who, from time to time, visited the applicant at her employer's home during the absence of the employer.  It was the prosecution's case that the applicant had handed the employer’s items and the forged cheques to Hobson who, in turn, had paid the proceeds of the pawning of the items or encashment of the cheques to the applicant in return for a small financial reward.

8.  The applicant disputed this asserting that she had had nothing to do with those items and contending that it must have been Hobson who had stolen and realised all the items, Hobson having had opportunity to misappropriate the items when she was in the employer’s residence from time to time.

9.  Hobson had initially pleaded not guilty to each of the charges against her but, prior to the commencement of trial, changed those pleas.  She offered to give evidence for the prosecution and made a witness statement.  She gave evidence as the third prosecution witness.  On the way the case was presented the prosecution was to stand or fall by her testimony.

10.  It was an admitted fact that Hobson had pawned most of the employer’s missing items on the 18 July 2006.  The judge found, and he was right to do so on the evidence, that it was Hobson who encashed the cheques relating to Charges 3, 4 and 5; that it was she who unsuccessfully attempted to obtain the proceeds of the cheques relating to Charges 6, 7 and 8; that she had deposited cheques in respect of Charges 7 and 8 into her own bank account.

The application for leave to appeal conviction

11.  It is the judge's treatment of the evidence of Hobson which forms the basis of this application for leave to appeal conviction.

12.  The first ground of appeal, particularised in 10 paragraphs, may be briefly summarised as complaints about the judge failing "sufficiently to warn himself" about the dangers of relying on Hobson's evidence and failing to "seek confirmatory evidence" of Hobson's evidence, incorporating criticisms of Hobson as a tainted witness who was evasive and contradictory in her evidence.

13.  The judge, of course, was abundantly aware of this.  He had taken Hobson's pleas of guilty; he had postponed her sentencing until the end of the trial of the applicant; he had had the opportunity of seeing and hearing Hobson as a witness; he had been forcefully reminded of her status during submissions on behalf of the applicant; we are assured by Mr Tracy, who appears for the applicant today and appeared for her below, that the judge would have been aware of all of the areas of Hobson's evidence which adversely reflected on her credibility or reliability.

14.  The judge also had the opportunity of seeing and hearing the applicant give evidence when she testified before him.  He was therefore in an ideal position to perform an assessment of the witnesses.

15.  After succinctly reviewing the evidence given by all the witnesses on behalf the prosecution as well as by the applicant the judge sparingly reminded himself of the twin effects of the applicant’s hitherto good conduct as well as the burden and standard of proof.  He then went on to say this:

50.  Before I come to my verdict, I have considered all the evidence and submissions carefully.  I have considered all the criticisms that Mr Tracy made of [Hobson] during cross-examination and submissions.  All matters taken into consideration, I agree that [Hobson] has tried to play down her role in her testimony.  No doubt [Hobson] gave evidence for the prosecution in the hope that she would be given further reduction in sentence.  She has her own interests to serve in her evidence should be viewed with great caution.

51.  In my judgement, [Hobson] tried to play down her role... Having said that, I am sure that [Hobson] has told the truth when she said P7A and the cheques and the Rolex watch were given to her by [the applicant] .

52.  [Hobson] gave a vivid and true account as to how [the applicant] instructed her to cash the cheques.  Details like the applicant had asked [Hobson] to cash the cheques at Hang Hau branch but for convenience [Hobson] went instead to Mongkok branch has a ring of truth about it and is not something that [Hobson] would fabricate.

16.  It is unfortunate that the applicant has seen fit to categorise a perfectly sound statement by the judge recognizing the potential dangers of relying on a particular witness, a statement lacking in prolixity, as "fairly ritual sounding".  The judge resisted temptation to repeat in a variety of ways the essential considerations before him, an approach which is to be commended.  This was a short and simple trial: the judge knew full well that the prosecution could only succeed if he were able to accept Hobson's evidence; he knew equally well the dangers of relying upon her evidence and articulated those dangers in a manner appropriate to the circumstances.

17.  The criticism that the judge failed to "seek confirmatory evidence" is ill-founded.  This is apparent from his reasons for verdict where he says:

54.  On the evidence before me, [the applicant] did pawn the gold medal of [the employer], the question of intent to deprive permanently aside.  Therefore, it cannot be said that it is inherently improbable that the offences would take place as [Hobson] testified i.e. she was given the jewelleries and Rolex watch for pawning and the cheques for disposal.

18.  That passage recognizes the applicant's own evidence that, even before her employer had gone away, she had misappropriated property of her employer which she herself had then pawned.  The judge was also aware of the applicant's evidence that she had previously pawned, but redeemed, items belonging to her employer.  The judge was right to find that the applicant’s acknowledged conduct was consistent with the evidence of Hobson, that the applicant had handed her items to pawn and cheques to encash.  Plainly this evidence was supportive of Hobson's testimony.

19.  The second ground of appeal, a complaint that the judge did not sufficiently analyse Hobson's evidence or explain why he accepted parts of it and not others, is in essence an extension of the first ground.  Whilst it is correct that a judge sitting alone is required to give reasons for reaching a decision, the detail into which those reasons must descend and the breadth of evidence they must traverse will be dependent upon the facts of each particular case. 

20.  We reiterate that this was an uncomplicated case where the overriding issue was whether or not the judge could accept Hobson's evidence.  On the facts of this case, the reasons expressed by the judge, although economical, were sufficient.

21.  We set out the third ground in full:

The verdict on the 1st charge is also unsafe and unsatisfactory, since the Deputy-Judge, having wrongly dealt with the evidence of [Hobson], and wrongly accepted it, was predisposed to reject the evidence of the [applicant] herself in relation to the 1st charge as well as on charges 2 to 8.

22.  It will be recalled that Charge 1 was one of the two charges where the applicant was charged alone.  The misappropriation of the employer's property and its pawning occurred prior to the period when the employer went on vacation and, apparently, before Hobson started visiting the employer 's house.  There was no suggestion by the prosecution that Hobson was in any way involved with the commission of the first offence.

23.  It appears that what is meant by this Ground is that because the judge had accepted Hobson's evidence in respect of Charges 2 to 8 and, necessarily, rejected the evidence of the applicant on those charges, he more readily rejected the applicant's evidence on a charge with which Hobson had nothing to do.

24.  Not only is this ground without foundation, it is one which should not have been advanced.  The judge specifically acknowledged in his Reasons for Verdict that the evidence in respect of each charge must be considered separately: whether it is entirely necessary for a professional judge sitting alone to restate the obvious is not the point, this judge showed himself in terms to be alive to what was expected of him. 

25.  Moreover, the judge provided cogent and compelling reasons as to why he rejected the applicant's evidence in respect of Charges 2 to 8 and, separately, why he rejected her assertion that she intended to redeem the pawned item.  He said:

59.  …I reject her evidence that she intended to redeem the gold medal when she received her salary.  The evidence shows that [the applicant] was financially strained and she had no realistic chance to redeem the medal... [The applicant] must realise given her financial status, she might not be able to redeem the gold medal by paying the principal plus the interest.

26.  Each of the grounds of appeal against conviction is devoid of merit.

The application for leave to appeal sentence

27.  On 30 March 2007, in an unnecessarily complicated sentencing exercise, the judge sentenced the applicant to 11 months imprisonment on Charge 1, 16 months imprisonment on Charge 2, 20 months imprisonment on each of Charges 3 to 5, 17 months imprisonment on each of Charges 6 to 8 and 2 months imprisonment on Charge 9.  Then considering the question of totality the judge took the view that the overall criminality of Charges 1 to 9 "calls for a total sentence of 32 months imprisonment."

28.  He then ordered, to achieve that total, that 4 months of the sentence on Charge 2 be served consecutively to the sentence on Charge 1 (making an interim total of 15 months imprisonment), all the sentences in respect of Charges 3 to 8 be served concurrently with one another but 15 months of those sentences be served consecutively to the sentences on Charges 1 and 2 (making a new interim total of 30 months imprisonment) and the sentence of two months imprisonment on Charge 9 be served consecutively to the other sentences.  That makes 32 months imprisonment.

29.  The effect of that order was to leave 1 month of the sentence on Charge 2 not having been taken into account.  The judge then decided to recall the applicant and change the order that he had made in order to achieve a sentence of 32 months imprisonment.

30.  Unfortunately, he was functus officio so had no power to follow that course, a matter which has since been confirmed by the Court of Appeal in HKSAR v CHU Kin-yuen, Bartholomen [2007] HKC 172. 

31.  The respondent accepts that the judge lacked the necessary jurisdiction to make the changes he envisaged and that this court will need to sentence the applicant afresh.

32.  We are now urged to find that the starting point on Charge 1 of 12 months imprisonment after trial for a domestic employee who breached the trust of her employer by stealing her property is excessive.  The starting point was reduced by 1 month to 11 months in what was said to be recognition of the applicant's clear record.  The judge made similar deductions from the starting points which resulted in the sentences imposed on Charges 2 to 8.  Those were unnecessary deductions, a starting point presupposing the absence of previous criminal convictions.

33.  It seems that the item stolen was pawned for $2500 which, no doubt, would have been less than its real value.  Even so, given that the applicant had no previous criminal convictions at that time we view the starting point as manifestly excessive.  The appropriate starting point would have been one of 9 months imprisonment.

34.  The remaining charges were deserving of a more substantial sentence being a continued, systematic and cynical abuse of the employer's trust.

35.  In respect of Charge 2 the judge took an appropriate starting point of 18 months and then afforded the applicant a 1 month discount for her good character and a further 1 month for partial restitution.  He was correct in recognizing the restitution.  In respect of Charges 3 to 5 the starting point of 21 months was appropriate but the reduction of one month for the clear record was not: similarly in respect of Charges 6 to 8 where a starting point of 18 months was taken.  In respect of Charge 9 a 3 month starting point was correct as was the one third discount for the plea.

The result

36.  The application for leave to appeal against conviction is dismissed.  The application for leave to appeal against sentence is granted and treating the hearing as the appeal itself we set aside the sentences imposed and order made by the judge and substitute therefore the following: on Charge 1 imprisonment for 9 months; on Charge 2 imprisonment for 17 months; on Charges 3, 4 and 5 imprisonment for 21 months; on Charges 6, 7 and 8 imprisonment for 18 months; on Charge 9 imprisonment for 2 months. 

37.  The sentences on Charges 1, 2 and 9 are to be served consecutively to one another.  The sentences on Charges 3 to 8 inclusive are all to be served concurrently with one another: 4 months of those sentences are to be served consecutively to the sentences on Charges 1, 2 and 9.  The aggregate sentence thus remains 32 months imprisonment.