HKSAR v. PESTANO ALMA PASINAG

CACC 198/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 198 OF 2002

(ON APPEAL FROM DCCC 918 of 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 On 15 April 2002 this applicant was convicted in the District Court by Deputy Judge A Yuen of one charge of burglary, and sentenced to a term of two years and two months' imprisonment. She seeks leave to appeal against conviction and sentence. Her application before the single judge was refused on 5 September 2002, and on that date she was warned that this Court had power to order loss of time if we were to find the application without merit. Nonetheless, she has chosen to renew her application to this Court.

2 She was jointly charged with another female, who was D1 on the charge sheet. D1 was a domestic employee; her employer owned a shop in Sheung Shui. Her employer went to Mainland China and, while he was there, there was a burglary of his shop in the course of which two video recorders and two DVD players were stolen. The burglary took place on the night of 14 and 15 August 2001. In the morning of 21 August another domestic employee, who was PW5 at trial, found outside the shop two plastic bags with two video recorders and a DVD. The bags had been placed outside the shop, and D1 disclosed to PW5 that she had burgled the shop with a friend using duplicate keys. PW5 told her boss what had happened and D1 was arrested. The goods which had been returned had been returned at D1's request made to D2, this applicant, because D1 had become fearful once she discovered that the burglary had been reported. The police then visited this applicant's home, and there they discovered the fourth item which had been stolen, a Philips DVD player, which had not been returned, as well as a set of duplicate keys. Thus it came to be that D1 and D2 were charged with burglary, and D2 in the alternative with handling stolen property.

3 D1 pleaded guilty, and testified for the prosecution at D2's trial.

4 The applicant gave evidence at the trial. She said that she had merely been asked by D1 to look after some belongings for D1, but that she had not known what they were. On one version, she changed her mind and asked D1 to take them back. On another, D1 had asked her to send them back. The reason she kept one machine in her bedroom when the others were returned was, she said, because the original bag was torn so she had to rearrange the packing of the goods, and she did not return all the machines because the load was too heavy.

5 The judge analysed this evidence and disbelieved the applicant and he has provided a number of solid reasons for doing so, which it is not necessary to repeat. He believed the evidence of D1 which was that the burglary was this applicant's idea and that the two of them met outside the shop and went in together and stole the property.

6 The applicant's home-made grounds of appeal allege that the judge failed to resolve major doubts in the testimony of D1. It is true that the judge does not address the specific points made by defence counsel in his final submissions, but we have examined the submissions and none of the points made stands out as requiring specific analysis. The judge has given reasons for his verdict which, in our judgment, suffice.

7 There is no basis for upsetting those findings, and the application for leave to appeal against conviction is dismissed.

8 The judge approached sentence in this way. He adopted for D1 a starting point of two-and-a-half years' imprisonment. He said that there was an aggravating feature, which was the breach of trust by D1; but he offset that by the strong mitigating factor of her giving evidence for the prosecution. Then he deducted from two-and-a-half years one-third for her plea of guilty, and gave her a further reduction of four months to reflect that defendant's previous good character, arriving thereby at a term of sixteen months' imprisonment. As for this applicant, he took the same starting point, and then gave credit for the fact that she was also a person of previous good character; resulting in a sentence of two years and two months' imprisonment.

9 The applicant, in her written grounds, complains that she was not engaged in the breach of trust and that this fact distinguishes her case from that of D1, and was a fact that was not reflected in their sentences. The point carries no weight. In the first instance, this applicant knew full well that her friend, D1, was abusing her position as an employee, and the applicant deliberately used for her own benefit that same inside information and access which D1 had; and, more particularly, the judge did aggravate D1's sentence for breach of trust, but did not aggravate it in the case of D2 for that feature.

10 The applicant has today told us that she wishes to return home and to be with her family.

11 There is, in the event, no merit in the appeal against the sentence imposed and accordingly, the application for leave to appeal against sentence is dismissed.

12 This applicant has renewed these applications after the single judge had reminded her of the court's powers to order loss of time. That was a warning she has had in any event in the form which she signed when lodging the application. These applications are without any merit at all and, pursuant to section 83W of the Criminal Procedure Ordinance, Cap 221, we order that two months of the time served pending the appeal shall not count towards her sentence.