HKSAR v. JAGODILLA JEAN SENCIDA

HCMA 458/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 458 OF 2010

(ON APPEAL FROM ESCC 678/2010)

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J U D G M E N T

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1.  On 29 April 2010, the appellant was convicted by Deputy Magistrate, Miss Kennis Tai, sitting in the Eastern Magistrates’ Court on a charge of theft for which the appellant was sentenced to 3 months’ imprisonment. She now appeals against her conviction.

2.  Originally, the appellant faced two charges of theft but the learned Magistrate was not satisfied that the 1^st charge, relating to seven different kinds of foreign currency, had been proved.  The charge on which the appellant was convicted related to a diamond ring, valued at $15,539, belonging to Shah Parul Desai whose family had employed her as a domestic helper at their flat in Macdonnell Road for a number of years.

3.  On 14 February 2010, the appellant told Mr Shah that she wanted to leave her employment as she was pregnant.  This coincided with Mr Shah’s unhappiness about the appellant’s recent performance as a helper and the fact that she had borrowed $15,000 from her employers.

4.  The appellant for her part said that she would be happy to leave if she was given $15,000.

5.  An arrangement was eventually reached whereby the appellant agreed to pack her things in the morning and leave.

6.  The appellant then left the apartment wearing a red jacket (Exhibit P1) but she called about half an hour later to say that she wanted to pack up and leave immediately.  Mr Shah did not agree with this but it caused him to become suspicious of the appellant’s motive in wanting to leave so suddenly.  He then went into the appellant’s room where he found a partially hidden roll of banknotes in mixed currencies.  I do not need to dwell on this aspect as these were the subject of the 1^st charge.

7.  The appellant was not the only helper to use the room in which the banknotes were found and a doubt plainly existed about who may have hidden the banknotes in the room as she did not have the exclusive use of the room.  However, this discovery led to the police being called the following morning when the appellant came to collect her remaining belongings from Mr Shah’s flat and to the further discovery of Mrs Shah’s valuable ring in the back of the red jacket (Exhibit P1) which the appellant was wearing when she returned to the flat on 15 February.

8.  To digress for a moment, it appears that Mrs Shah for her part had not, according to her, told the appellant about the loss of the ring which she had first noticed on 7 February.  She kept this to herself and, in due course, on 10 February, she left Hong Kong with her children and a second helper, also employed by the Shahs, to go to Singapore.

9.  I should add in the context of the evidence given by Mrs Shah that she had hitherto been perfectly happy with the appellant’s work until the last few months and she had given the appellant several advances of money.

10.  The second helper who I have mentioned, known as Rose, also got along well with the appellant.  She was apparently aware that the appellant had become pregnant.

11.  This sets the scene for what happened on 15 February 2010.

12.  The appellant returned to Macdonnell Road to pack up and collect her belongings.  It was then that the police were called.  The appellant was arrested for the theft of the banknotes found in the room used by her.  She was then taken to the Central Police Station where she was searched and her red jacket was thoroughly examined.

13.  In the lining at the back of the jacket, Mrs Shah’s ring was duly found between the inner and outer layers of the fabric.  It was not particularly easy to remove but eventually a very small hole in a pocket on the left side pocket of the jacket was found.  It must have been through this hole that the ring, together with three Australian banknotes which were also found inside the lining, had been inserted.

14.  The appellant for her part, when these things were found, denied that they belonged to her.  More importantly, in her testimony in the court below, the appellant, who not only had a clear record but also a wholly creditable work record for the Shahs, said that on 10 February 2010, before Mrs Shah went to Singapore, Mrs Shah had asked her to find her missing diamond ring.  The appellant said that she found the ring on 12 February when it fell out of Mrs Shah’s bag.  She then returned it, or so she said, to Mrs Shah’s jewellery box in the bedroom.  She said she had also sent a text to the other helper, Rose, who was then with Mrs Shah in Singapore, to inform her that the ring had been found so that she, in turn, could tell Mrs Shah.

15.  Rose, who was the 3^rd prosecution witness called in the court below, when she was questioned about this, had been unable to recall such an SMS and Mrs Shah, for her part, said that the appellant had made no mention either to her or through Rose of finding the ring.  In fact, as I said earlier, she had, according to her, not even mentioned to anyone the fact that she had apparently lost her ring.  Mrs Shah and Rose duly came back from Singapore on 14 February.

16.  The Magistrate in the court below had a careful look at the jacket and I have been able to do exactly the same.  The stitching inside the left pocket seems somehow to be broken and it is through a very small hole that it is clear the ring must have been inserted to find its way to the back of the jacket.

17.  In summary, it is plain, from the finding of the ring in the appellant’s jacket, that the appellant had, as she herself admitted, found Mrs Shah’s ring.  However, her silence about having done so to the three other members of the household that she might have told, speaks for itself and the story about putting the ring back into the jewellery box appears to have been simply untrue unless she did, and then changed her mind and took it out again.  One way or the other, the ring got into her coat.

18.  I am satisfied this was a clear case of theft.  There is no possibility that someone else in the household was attempting to make trouble for the appellant by framing her for something she had not done.  I mention this only because, although a frame-up was not specifically suggested at the trial, there were hints of this from some of the questions asked by defence counsel in cross-examination.  However, it is apparent that Mrs Shah and Rose had no grudges against the appellant whatsoever and, although it may be that Mr Shah had become less than satisfied with the appellant’s work, the appellant was not making it difficult for Mr Shah to get rid of her from employment at the flat because she wanted to leave anyway on account of her pregnancy.

19.  The appellant repeated in this court what she told the Magistrate, namely that the reason she had used this red jacket was because she was already becoming quite large and her normal jacket would no longer fit her.  It is apparent that the jacket in which the ring was found belonged to the appellant and, as she also admitted, she had not lent it to other people to use.

20.  The Magistrate was fully entitled to have convicted on the evidence and, having reviewed the evidence with care, I am satisfied and sure that the case was properly established against the appellant.

21.  Accordingly, the appeal is dismissed.

(M Stuart-Moore) Deputy High Court Judge