R. v. MONZON THELMA B.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 831 OF 1996

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J U D G M E N T

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1. This is an appeal against sentence by Thelma Monzon who agrees that she is also known as Theresa. The sentence against which she appeals is one of six months immediate imprisonment imposed by the learned Magistrate on 10th June of this year.

2. The offence of theft was committed some time in August of 1991. The Appellant was arrested very shortly afterwards and appeared before the learned Magistrate, Mr. Candy, initially on 12th September 1991. On that occasion she pleaded guilty. The prosecution outlined the facts. The Magistrate was told that she had a clear record and the Defendant herself said that she had nothing to say. The Magistrate adjourned the hearing until 26th September 1991. She failed to appear on that occasion, having absconded and the warrant was accordingly issued for her arrest. She was subsequently re-arrested this year as a consequence of an alleged offence of shoplifting on 7th June 1996 and it was as a result of the investigation into those proceedings and her background that it was realized she had failed to attend the Court in 1991 in respect of the offence of theft to which she had pleaded guilty. She then appeared before the same Magistrate, Mr. Candy, on 10th June of this year when she was asked why she had been absent in September 1991. She told him that she was scared, she apologized and a Probation Officer's report was put before the learned Magistrate. He then imposed the sentence of six months' imprisonment.

3. Put very shortly, the theft involved the taking of a valuable "EBEL" watch and items of clothing from a room in the apartment of a Mr. Robert Brewis. The Magistrate in sentencing her gave these reasons which were reduced into writing. They may be not all the reasons given at the time of sentence but they were reduced very properly into writing very shortly afterwards. He said the Defendant in 1991 admitted having stolen property from the home of her employer where she resided. (I need not deal with the chronology which he refers to.) He went on to say the offence involved a breach of trust. The only mitigating factors were the Defendant's plea of guilty and her clear record. He said:

"I took nine months as the starting point and giving credit for the plea and previous good character of the Defendant, I impose a sentence of six months' imprisonment."

In order to complete the chronology, within two days of that sentence of six months' imprisonment, she appeared before another learned Magistrate in respect of the offence of shoplifting from Watson's and she said she pleaded not guilty to the offence. The hearing was adjourned until 5th August of this year. On that date, she was represented by a solicitor from the same firm which instructs Ms. Cheng on this appeal today. On that occasion, she entered a plea of guilty, admitted the brief facts of that offence and made it clear that she both understood and spoke English.

4. In the course of the mitigation in respect of that shoplifting offence, there was inevitably reference to the original offence of 1991 and her failure to attend the Court in September of that year. She was of course serving the six months' imprisonment imposed by the learned Magistrate, Mr. Ian Candy, on 10th June 1996 and her solicitor informed the Magistrate, Mr. Tong, that she was appealing against that sentence. In the course of mitigation he referred to the Appellant working as a part-time domestic helper at that time, and to her employer as Robert, meaning Mr. Robert Brewis, and put forward some purported mitigation for her failure to attend the Court saying that the employer had told her that things would be "okay". Mr. Tong imposed a sentence of one month's imprisonment to run consecutively to the six-month term which she was already serving. He made it clear that he took into account the principle of totality of sentence and the guilty plea.

5. We now go back to the affidavit of the Appellant in support of her appeal against the sentence of six months imposed by Mr. Candy. The gist of that affidavit to which she was sworn, was that she was not employed by Mr. Robert Brewis but that a friend, who also was known as Theresa, was in fact the amah employed at that apartment by Mr. Brewis or by his flat-mate, and she put forward some explanation to the effect that she had been invited to that flat by Mr. Brewis with her friend, Theresa. She did not of course deny the offence of theft in itself. The thrust of that affidavit as a whole was to suggest that the learned Magistrate, Mr. Candy, was mistaken in treating her as an employee of Mr. Brewis or of his flat-mate and that he should not have treated the case as a breach of trust by an employee.

6. On the strength of that, the perfected grounds of appeal were settled although it may be that the affidavit was sworn itself two days or so after the perfected grounds of appeal. Those grounds of appeal set out in short that there was no evidence to support the Magistrate's finding that she was an employee and had stolen from the employer's home and that accordingly there was not a breach of trust. Furthermore, the Magistrate erred in taking nine months immediate custodial sentence as the starting point for the offence. That was the position when this appeal first came before me on 4th September this year.

7. I am bound to say that I find it to be surprising, and a matter of some concern that the solicitors acting for the Appellant could have allowed a Notice of Appeal to be settled and filed containing such grounds when a member of their firm had so recently addressed a court to the opposite effect.

8. It was clear that the issue or the main issue in the appeal was this question of employment and breach of trust. A perusal of the papers did not disclose any positive assertion by the Crown that the Appellant was the employee of Mr. Brewis nor did there appear to be in the papers any admission by the Appellant at any stage of the investigation that she was so employed. When the Appellant's solicitors wrote to the Legal Department inquiring as to the position, bearing in mind that the plea of guilty had been entered in 1991, the reply from the Legal Department said this amongst other things:

"Mr. Brewis did not state his relationship with the Defendant. I think the Defendant was his amah but you should confirm this with the Defendant."

That was not particularly helpful because the relationship between the Defendant (or Appellant) and Mr. Brewis must have been a matter within the prosecution's knowledge at some stage and something must have been said, either by the prosecution or on behalf of the Appellant to give the learned Magistrate the information on which he undoubtedly proceeded. I accordingly adjourned the appeal for that matter to be clarified.

9. By the time the appeal came back before me today, certain matters had been investigated, but Mr. Brewis, for some reasons I do not quite understand, was never asked the material matters which would have helped to shed light on this particular problem. I had to be satisfied that the learned Magistrate had been given either undisputed or unchallenged information that she was the employee or that there had been a positive admission in that regard. To some extent by chance, the file in the proceedings before the other learned Magistrate for the offence of shoplifting came into the Court's hands. It appears that the Appellant had filed a Notice of Appeal against that consecutive sentence of one month though today Ms. Cheng informs me that that appeal is abandoned. When one looks at the record in relation to those proceedings, and I have already referred to them, it is apparent that the mitigation put before the learned Magistrate included an admission that the Appellant was the employee either of Mr. Brewis or his flat-mate. And therefore clearly the offence committed in 1991 was an offence committed as an employee and was therefore an offence involving breach of trust.

10. Ms. Cheng had not had the opportunity, prior to today, to consider that record and that admission, but once she had had that opportunity, the Appellant very sensibly accepted the position that she had been the employee and that there had been a breach of trust. Suffice it to say that her affidavit was wholly misleading, if not dishonest, and the grounds of appeal of course could not now be supported as far as the first and second grounds are concerned. Ms. Cheng proceeded with the appeal on the basis of the third and fourth grounds of appeal. They were:

(3) that the learned Magistrate had failed to give any or sufficient weight to the following mitigating factors:

(i) that she was a first offender committing the offence of theft out of momentary greediness,

(ii) that the theft had resulted in no actual loss to the victim because all the stolen properties had been recovered.

(4) the general comprehensive ground that the sentence of six months' imprisonment was manifestly excessive.

I look at this appeal on the basis of those two grounds which are pursued. I ignore what I regard as the dishonesty or misleading statements made by the Appellant which had for a time confused the real issues in this particular appeal and led to a waste of time and money. I proceed to look at the appeal solely in the context which is now admitted, of a theft by a part-time employee from her employer's premises. It was a mean, miserable, wretched offence which always leaves in people's minds the fear as to whether they can trust people whom they employ and who are entrusted to look after their premises, whether they are present or not. One of the items stolen was undoubtedly a valuable watch. The learned Magistrate made it clear he took into account the plea of guilty and her previous good record. But such offences need to be marked by immediate prison sentences even though not of a very long duration.

11. The Magistrate was wholly right in principle in taking nine months as the starting point. He reduced that nine months to six months in order to reflect the matters to which I have referred and which he very properly set out. That was undoubtedly, in my view, the correct sentence. He made no mistake whatsoever and this appeal is dismissed.