HKSAR v. BALUYUT VENUS BUGAYONG

HCMA 197/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 197 OF 2009

(ON APPEAL FROM KCCC 7344/2008)

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R E A S O N S   F O R   J U D G M E N T

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1.  On 13 February 2009, the Appellant appeared before a Magistrate sitting at Kowloon City Magistracy and was convicted after trial of an offence of theft contrary to Section 9 of the Theft Ordinance, Chapter 210, Laws of Hong Kong.  She was fined $2,000 or given 7 days’ imprisonment in default.

2.  The particulars of the offence were that on 23 December 2008, inside Watson’s situated at No. 65 Waterloo Road, Kowloon, Hong Kong, the Appellant stole one electric power blade valued at HK$99.9 and one electric toothbrush valued at HK$99.9, the property of Watson’s.

3.  On 17 February 2009, the Appellant filed a Notice of Appeal against conviction on the basis that her instructions were not fully presented to the court and that the conviction was against the weight of evidence.

4.  Perfected grounds of appeal were filed by the Appellant on 6 May 2009 which included the fact that the fine of $2,000 imposed by the Magistrate was excessively harsh due to the financial circumstances of the Appellant.

5.  On 8 July 2009, the Appellant appeared before me in person and after hearing oral instructions from her and from the Public Prosecutor on behalf of the Department of Justice, I dismissed the appeal against conviction, but substituted the fine of $2,000 for a fine of $500.  I indicated that I would hand down my reasons in due course.  I do so now.

6.  The prosecution case at trial was simple.  PW1, the manager of Watson’s, gave evidence to say that at about 10.35 a.m. on the day in question she was on duty standing next to the cashier counter when she heard the anti-theft alarm being activated.  At the same time, she saw the Appellant walk out of the entrance pulling her own handheld trolley.  She chased the Appellant and intercepted her about three shops away from Watson’s.  They went back to the shop and when they passed through the entrance, the alarm was activated again.  An inspection of the Appellant’s trolley revealed the two items being the subject matter of the charge hidden beneath some vegetables.  No payment had been made for the items.

7.  The Appellant, who is a Philippine National, elected to give evidence.  She said she had been to the vegetable market before going to Watson’s.  She decided to buy the two items, i.e. the electric power blade and electric toothbrush and held them in the hand while pulling her trolley with the other hand.  Her mobile rang, so she decided to answer it outside the shop.  When she was leaving the shop the alarm was activated and she still held the items in her hand.  She explained to the store manager that she intended to pay for the items.

8.  In her perfected grounds of appeal, the Appellant complains that defence counsel who appeared for her in the court below failed to put her complete defence to the store manager.  In particular:

1.1   The defence counsel did not challenge PW1 on precisely where she had apprehended the Appellant.  As a consequence, this was a material omission that went to the question of whether the Appellant had the intention to permanently deprive Watson’s of the goods.

A perusal of the transcript demonstrates that counsel did put to the witness the Appellant’s case of standing just outside Watson’s when she was apprehended, but the witness disagreed with this.  This ground is misconceived and fails.

9.  1.2 and 1.3.  The defence counsel misunderstood her defence by putting questions to PW1 concerning whether or not the Appellant told PW1 that she had forgotten to pay for the items.  The Appellant’s defence was not based upon whether she had forgotten to pay for the items, but rather that she was simply taking a call on her mobile at the time and had every intention of paying for the items.  There is simply no merit in this ground.  The issue in this case as the Magistrate identified was credibility.  She did not believe the Appellant’s testimony that she held the items in her hand and that she was intercepted outside the entrance of the store whilst she was taking a call.  The Magistrate had the benefit of seeing and hearing the witnesses give evidence and was perfectly entitled to reject the evidence of the Appellant.

10.  As for ground 2 that the decision was against the weight of evidence, I simply reject this out of hand.  On the evidence before the Magistrate, there was ample evidence for her to come to the conclusion that she did.

11.  For these reasons, I dismissed the appeal against conviction.

12.  Ground 3 of the perfected grounds of appeal avers that the fine of $2,000 imposed by the Magistrate was too severe.  Whilst it is right to say that originally no notice of appeal against sentence was filed by the Appellant, it occurred to me that this Appellant was acting in person.  It also occurred to me that the Appellant is a domestic helper who as a result of this incident lost her job.  A fine of $2,000 is, in my judgment, out of all proportion to this Appellant’s ability to pay.  I therefore granted leave to the Appellant to appeal against sentence and substituted a fine of $500 for the fine of $2,000 originally imposed by the Magistrate.