HKSAR v. LILIK MUJIATI

HCMA474/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 474 OF 2009

(ON APPEAL FROM ESCC 1420 OF 2009)

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J U D G M E N T

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1.  The appellant was convicted of one charge of theft after trial and was sentenced to two months’ imprisonment.  She now appeals her conviction and sentence.  

2.  The appellant, employed by PW1 as a domestic helper, returned 3 days after termination of her contract to collect her personal belongings.  The appellant told PW1 that she would return some things to her and upon PW1’s request to inspect her luggage, the appellant produced a silver pendant from her luggage.  PW1 recognised this belonged to her and was originally placed in her drawer inside her premises.  A report was made to the police.  A further search upon police arrival revealed that the appellant had put a purple necklace with pendant, a yellow plastic watch and a blue travel bag which belonged to PW1 in her luggage.  

3.  The appellant disputed the voluntariness of her cautioned statement, which, after a hearing on that issue, was admitted into evidence by the learned magistrate. 

4.  The appellant gave evidence to the effect that the silver necklace was a gift given to her by PW1 which upon advised by others she wanted to return to PW1.  The purple necklace with pendant, she said, was a gift that PW1 gave to her children.  She borrowed PW1’s yellow plastic watch to get PW1’s children to/from school on time and intended to return it when she completed her contract.  But she said before she packed she had no idea that she had been dismissed.  The travel bag, according to her, was also a gift from PW1. 

Grounds of appeal

5.  The appellant reiterated that she felt she had not stolen those items, and she said the present case was a total frame up by her employer, as they had some dispute over labour issues and she had reported her employer to the Labour Department.  She complained the sentence was too severe and that she wanted to return to work, to take care of her child and parents. 

Respondent’s reply

6.  It was submitted by the respondent that the magistrate who had heard evidence from the prosecution and defence, was entitled to accept prosecution evidence and rejected that of the appellant, and find that the none of the items were gifts as alleged by the appellant and the appellant had the requisite dishonest intention to appropriate them as her own. 

7.  It is also submitted that whilst sentences for cases of this nature vary, this case involved breach of trust.  The imprisonment term as imposed was neither manifestly excessive nor wrong in principle. 

My judgment

8.  Magistracy appeals are rehearings in the sense that I have to decide this case on the evidence as the magistrate had seen and heard, with the assistance of the transcript and the Statement of Findings. 

9.  This case turns on the credibility of PW1 and the appellant.  In his Statement of Findings, the magistrate has laid out the details of his analysis of the evidence and there is nothing which causes me to think that the assessment by the magistrate was anything other than sound observation and reasoning.  The magistrate was entitled to form the view as he did in his Statement of Findings and rejected the appellant’s evidence. 

10.  There is ample evidence to support the conviction.  The appeal against conviction is dismissed. 

11.  This being a breach of trust case, although the value of the stolen property was relatively small, calls for an immediate custodial sentence.  Two months’ imprisonment imposed by the magistrate is entirely appropriate in the circumstances of the present case.  The appeal against sentence is also dismissed.