HKSAR v. PALAGHICON, CATHERINE MARY D

HCMA330/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 330 OF 2009

(ON APPEAL FROM ESCC 6300/2008 )

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J U D G M E N T

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1.  This is an appeal against a conviction for attempted theft.  The Appellant was a domestic helper who worked for PW1 and PW2, a married couple.  PW2 is the husband.  Just after 8 in the morning, on 18 December of last year, PW2 had gone to the lavatory, leaving his wife asleep in bed.

2.  She, PW1, heard a sound and opened her eyes, and saw the Appellant holding her husband’s wallet in her hand and picking out money from it.  It had been demonstrated in the court below how her fingers were engaging the notes in the wallet.  It led the magistrate to describe her  as being caught red-handed.  PW1 shouted at the appellant: “What are you doing?  How dare you.  You dare steal money in front of me.”  The Appellant said that she was just taking a look.  PW1 accused her of stealing or attempting to steal, and at this moment the husband returned and the Appellant said words that they but heard: “Just greedy.” 

3.  The Appellant gave evidence.  She said she had been called into the bedroom; she went in and said, “What is it?”  PW1 did not answer; and that as she left she knocked the husband’s wallet - on off the bedside table; she bent down to pick it up off the floor; and as she picked it up some money was protruding from the wallet and she was pushing it back in; and that in response to the question, “What are you doing?” the Appellant said the word, “Nothing.”  She denied that it was she who used the word greedy, saying it was them.  She said that she must have knocked the wallet off the bedside table and that she was so near to the bed in which PW1 lay was because PW1 had some hearing defect and that was why she went so close.   

4.  The magistrate believed the evidence of PW1 and PW2.  He judged that they showed no animosity or bias towards her, in fact quite the reverse. 

5.  It strikes me that there are two matters which are of significance here.  The first is why was the Appellant right by the bedside?  On her story, she said she was called into the room.  If that had happened it could not have been the subject of mistake.  It must be that when it was denied by the employers they were deliberately not telling the truth.  The second matter is what was said afterwards.  When something like this happens between people who know each other, how they react between each other speaks volumes.  Given the significance of what was occurring between these people who knew each other, who used the word “greedy” was not going to be the subject of mistake; someone was not telling the truth about who used it.  

6.  The magistrate had the considerable advantage over me of seeing and hearing all the witnesses give evidence.  I have to judge the matter on the papers.  But looking at the papers here nothing makes me doubt the finding of the magistrate, nothing makes me suspicious of PW1 and PW2.  Their credibility does not appear to be damaged in any way.  There was no issue taken at the trial that for any reason they held any hostile attitude towards their employee.  Whilst people might make up allegations to convict others of crimes of which they are innocent, in this case one can see absolutely no motive for doing so.  And it would have involved a deliberate denial of the truth by PW1+PW2 concerning the innocent reason why the Appellant was in the room. 

7.  Accordingly, on the material before me, I am sure that the magistrate was right in his assessment, and I am bound, therefore, to dismiss this appeal against conviction.