HKSAR v. VALDORIA, EDELWISA O

HCMA523/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.523 OF 2008

(ON APPEAL FROM ESCC 1266 OF 2008)

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J U D G M E N T

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1. On 9 May 2008, the appellant was convicted after a trial before Mr Victor So, Deputy Magistrate of one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.  She was fined $2,000.  This is her appeal against her conviction.  She is today before me unrepresented.  In her trial, she was represented by Mr Nigel Bedford of Counsel who was instructed by the Duty Lawyer Service.

2. The appellant’s appeal was first listed before me on 27 August 2008.  On that date having read through the papers I considered that a full transcript of the evidence in the trial was necessary and I ordered its preparation, I adjourned the further hearing of the appeal until 24 September.   Unfortunately on that date the transcripts were not available and the further hearing was adjourned until today. 

3. The appellant was employed as a domestic helper by the first prosecution witness (“PW1”).  She had been so employed from December 2007 until 9 March 2008 which is the date of the alleged theft.  

4. The prosecution case, on the face of it, was quite straightforward.  PW1 gave evidence that her infant son suffered from a skin allergy which was treated with a prescribed eczema cream.  The eczema cream was usually kept in the living room of the premises where PW1 lived with her husband and their son and where the appellant lived and was employed.

5. On 9 March 2007, PW1 had cause to use the eczema cream but could not find it.  The appellant was not then present, as she had been sent to the market.  On the appellant’s return, PW1 instructed her to find the eczema cream but was told by the appellant that she did not know where it was.  For reasons which were not apparent from the Deputy Magistrate’s Reasons for Verdict, PW1 suspected that the appellant had taken the cream.  The police were called to the premises and the missing eczema cream was found in the appellant’s handbag.  The only witness other than PW1 in the prosecution case was the police officer who found the eczema cream in the appellant’s handbag and who then arrested her.  In response to being arrested and cautioned, the appellant said : “I didn’t know why the facial cream was in my handbag.” 

6. The appellant gave evidence, she denied taking the eczema cream.  She suggested that it must have been placed in her handbag by either PW1 or PW1’s husband.  The reason for them to do this was she said, that they were unhappy with her performance as a domestic helper.  By alleging that she had stolen from PW1 and her husband they could have terminated her employment without the need to pay her a further month’s salary.  The appellant when giving evidence told the Deputy Magistrate that whilst PW1 and her husband had never specifically stated that they were dissatisfied with her work nevertheless there were incidents, which she recounted to the Deputy Magistrate, which led her to that conclusion.  PW1 for her part rejected the assertion or suggestion that she was dissatisfied with the appellant’s performance. 

7. As the Deputy Magistrate observed in his Reasons for Verdict the main issue in the trial was whether or not the eczema cream was placed in the handbag by the appellant or had been or might have been placed there by PW1 or her husband.  PW1 for her part denied that she had placed the eczema cream in the appellant’s handbag.  PW1’s husband did not give evidence in the trial.

8. The Deputy Magistrate accepted the evidence of PW1 and rejected the evidence of the appellant.

9. The Deputy Magistrate was satisfied that the only reasonable inference to be drawn in the circumstances was an inference adverse to the appellant namely that she had taken the eczema cream (for reasons which were not apparent) and placed it in her handbag.  Likewise, he concluded that when she did this she did it intending to steal the eczema cream.

10. The direction commonly given in jury trials when a critical element of an offence is to be determined by an inference drawn from other proven facts is as follows :

“You are entitled to draw inferences — in other words if you find certain facts proved you are entitled to infer the existence of other facts.  But you may only do so if that inference is the only reasonable inference to draw from the proven facts.  So, if from a set of facts which you find proved there is a reasonable inference to draw against the defendant as well as one in his favour, you must not draw the adverse inference.”

11. In the present case, the Deputy Magistrate was satisfied that the only reasonable inference to be drawn was an inference adverse to the appellant, namely in all of the circumstances she had stolen the eczema cream.

12. The issue before me is to determine was whether he was correct in that conclusion.

13. In Chou Shih Bin v. HKSAR (2005) 8 HKCFAR 70, the Court of Final Appeal determined that an appeal from a decision of a magistrate was by way of a rehearing on the evidence before the trial court, and that whilst the appellate tribunal would recognize that it did not enjoy the advantage of having received the evidence at first hand even so it would not fail to quash a conviction that it considered unsafe.

14. That is what is required of me.  The Deputy Magistrate’s summary of the evidence and Reasons for Verdict are on the face of it unimpeachable.  However, there are to my mind matters which give rise for concern.  Not least of these is why would the appellant wish to steal a tube of eczema cream prescribed for her employer’s infant son when there was no suggestion that she herself suffered from any degree of infirmity which would require it to be used.  Likewise why was it that when the appellant returned from the market and was asked about the cream and could not locate it did PW1 or someone on her behalf call the police. 

15. Another matter of concern is this.  The appellant makes the point in her written submissions to me that after the police had been called to the apartment, she was asked to produce her handbag for inspection.  She went into the bedroom which she shared with the infant child of PW1 to bring it out to the police for that purpose.  She said that she could then have disposed of the tube of eczema cream as she saw fit prior to producing her handbag to the police for inspection.  Instead of doing this, she produced her handbag to the police for inspection.  Her point being that she had every opportunity to remove the cream from it assuming it was there. 

16. Returning to the specific concerns that I have.  The fact that PW1 assumed as soon as she could not locate the eczema cream that it had been stolen by the appellant is a matter of some concern.  This was a conclusion she reached notwithstanding that her husband had that morning departed for an overseas business trip and could in theory easily have misplaced the eczema cream.  There is no suggestion that she made any attempt whatsoever to contact him in this regard.  Instead she assumed without further investigation that the appellant had stolen the eczema cream. 

17. Of concern, as the appellant points out in her written submissions to me, is the fact that the premises were monitored by close circuit television (“CCTV”) and yet it is alleged that the appellant in full knowledge of this elected to steal from her employers.  In this regard it is important to note that the appellant was advised in writing when she commenced her employment that the premises were monitored by CCTV, and it is apparent from the instructions given to the appellant when she commenced her employment that PW1 was concerned about security.

18. It is to be noted in passing that there was no CCTV footage produced in the trial nor apparently was there any explanation offered for its absence.  This fact did not apparently concern the Deputy Magistrate because there is no reference to it in his Reasons for Verdict.

19. Of concern as I have earlier indicated is the fact that PW1 requested the police to search the appellant’s belongings when she could not find the eczema cream. 

20. In his Reasons for Verdict, the Deputy Magistrate when summarizing the evidence of the police officer who arrested the appellant said this :

“After making enquiry, PW1 requested the police officers to carry out a search of the appellant’s belongings.  After searching several drawers in the baby’s room, the appellant volunteered Exhibit P3 for inspection, when she took out all the things inside the bag Exhibit P2 was found.”

Exhibit P3 was the appellant’s handbag and Exhibit P2 was the tube of eczema cream.

21. This summary of the evidence provided by the Deputy Magistrate omits to refer to the fact that the appellant was asked to go into the bedroom to bring her handbag into the living room, which she did.  It omits to address the possibility that the appellant could easily in that time remove the tube of eczema cream from her handbag.  There was in the trial no challenge to the appellant’s evidence in this regard.  PW2, who was the police officer called to the scene, accepted in cross-examination that when the appellant was requested to do so she went into the bedroom where her handbag was kept.  She then brought the handbag into the living room where it was searched.  It is clear from this and as I have earlier indicated the unchallenged evidence of the appellant, that there was an opportunity for the appellant, had she known of the presence of the tube of eczema cream in her handbag, to either discard it or to feign its discovery in the bedroom.

22. This was critical evidence in the appellant’s case and yet nowhere has the Deputy Magistrate addressed it.  Similarly, nowhere in his Reasons for Verdict does the Deputy Magistrate address the fact that when PW1 could not find the tube of eczema cream, she immediately assumed that the eczema cream had been stolen by the defendant.  Similarly, the Deputy Magistrate appears not to have been troubled by the fact that there was apparently no motive for the appellant to steal an apparently valueless (to her) tube of eczema cream.

23. This is one of those cases where the whole of the circumstances engender a lurking doubt notwithstanding the conclusions of the Deputy Magistrate.  He found PW1 to be a witness of truth and yet I am left with reservations about that conclusion given the whole of the circumstances.  Likewise he rejected the appellant’s evidence and yet I am unable to say that he should have. 

24. There are to my mind a number of matters which I have identified above in the circumstances of this case when taken together cause me to have a lurking doubt about the integrity of this conviction.  In those circumstances, the appeal must be allowed and the conviction set aside.  The appellant was fined $2,000 and in the event that that sum has been paid, it should be repaid to her. 

25. The appellant has paid the sum of $400 as her contribution to the Duty Lawyer Scheme for her representative in the trial.  She is entitled to have that repaid and I order that the respondent pay the appellant’s costs which are agreed to be $400.