HKSAR v. MERKA, MARIA LIVIA RONCALES

HCMA347/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 347 OF 2006

(ON APPEAL FROM ESCC 4871 OF 2005)

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JUDGMENT

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1. This is an appeal against two convictions for handling stolen goods. 

2. The Appellant was a domestic helper working here in Hong Kong.  She had a friend, who had originally been the 1st defendant, who was also a domestic helper.

3. The employer of that friend was called to give evidence and she identified two expensive watches; one was a Rolex and one was a Cartier.  These watches had in fact been recovered from a pawnshop and whilst I do not have a transcript of the evidence of the employer, it is an overwhelming inference that what she said was that they had been taken without her consent.  She also, it is apparent, gave evidence that the cost of these two watches when they were  purchased some years before was in the region of $100,000 each.

4. The two watches had been pawned by this appellant.  On 20 February 2005 she pawned the Rolex for $3,000 and a month later she renewed the pawning and pawned it for $1,000 more.  The transaction was renewed again on 8 July 2005.  It was on 6 August of the same year that she pawned the Cartier watch for $3,500.  On 29 August she renewed the transaction and pawned it for $1,500 more.

5. There was evidence from the pawnbroker, who at first was saying that the pawn amounts represented something like the value of the watches, but in re-examination he said their second-hand sale value in Macau was in the region of $50,000 each. 

6. If the evidence had ended there I judge a conviction would have been inevitable because the bare facts would have shown that the true owner had them stolen from her; that the person with the opportunity so to steal would have included her domestic helper;  her domestic helper was a friend of this Appellant and this Appellant pawned them.  Without an explanation to explain that, guilt would have followed.  As I understand it, Mr Lau does not really quarrel with that. 

7. However, the evidence does not end there because this Appellant was arrested by the police and chose to answer some questions and what she chose to say was that she had known her friend, the other domestic helper, for two years; that the friend had given her the two watches in question to pawn; and that the friend had told her that the Rolex watch was a birthday present from the employer’s daughter.  It may be there is some ambiguity about it, but I will take it either way for the purposes of the appeal, that she said that when she was given the Rolex watch her friend said that she said she had to go somewhere and needed the money that afternoon.  She said that she renewed the pawn as asked and that she passed the receipt to her friend who said that she wanted to redeem the watch herself.

8. As to the Cartier watch, she told the police that the friend had given that to her to pawn saying that it was a gift from the employer’s son and to pawn it as she needed money to send to the Philippines.  She said that her friend did not go to the pawn shop with her and she did as she was asked because of their friendship and she was used to having favours asked of her.  She said she did not know why her friend asked her to pawn the items and she did not ask.

9. The question in the case thus arises whether that explanation, un-sworn and untested by cross-examination, is sufficient to stop the inference of guilt running.  It depends upon what weight the tribunal of fact is prepared to give to the assertions made therein.  Having looked at that account my judgment as the tribunal of fact is that I am not prepared to give it weight, weight in the sense that it provides an exculpation.  It is an incomplete account and is obviously no substitute for sworn evidence that is cross-examined to and it avoids what must have been the central matter of concern.  Of course, the central matter of concern is the value of the watches because it is obviously their high value and the idea of them being presents from the son and daughter of the family that is at the centre of the case.

10. No one who has lived in Hong Kong more than the shortest possible time can be unaware that Rolexes and Cartiers are expensive items.  They are the toys of the very rich, and if in fact it was the case that an amah did not know and appreciate that, then in effect in this trial she had to go into the witness-box and say so, and she did not.  Just imagine the conversation between amah No. 1 and amah No. 2 in the circumstances where one has been given an object like this, and this occurs on more than one occasion.  The value of these watches represents years of work to them and the idea that they were not immediately agog to know whether they were real or not just defies belief.  And that answer against that context of, “I never asked why she wanted me to pawn them”, I am afraid is one that I find to be completely unreliable and, as with the other self-serving answers in the interview, I am not prepared to give it weight.

11. It follows, therefore, that the only reasonable inference I judge that is available on the evidence here is that this Appellant knew or believed both watches to have been stolen.  I am quite aware that suspicion, even suspicion with turning a blind eye is not enough, and it is not the same thing as knowledge or belief.  There has never been any doubt about that in this case.  My judgment is the same judgment that the magistrate made.  If you stand back from the facts of this case and apply common sense I am afraid the inference of guilt is overwhelming.

12. Accordingly the appeal against conviction is dismissed.  There is no appeal against the sentence.