HKSAR v. GALZOTE ANITA RAMIL

HCMA492/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 492 OF 2007

(ON APPEAL FROM KTCC 992 OF 2007)

--------------------------

--------------------------

-------------------------------------------------------

REASONS  FOR  JUDGMENT

-------------------------------------------------------

1. The appellant is a 51-year-old Filipino domestic helper who has been employed in Hong Kong by the one Chinese family for 12 years. 

2. On 7 May 2007 after a trial before a Deputy Magistrate at Kwun Tong Magistrates’ Court she was convicted of one charge of theft contrary to section 9 of the Theft Ordinance, Cap. 210.  She was fined $300.  

3. On 11 September 2007 I allowed the appellant’s appeal against conviction.  I quashed the conviction and ordered that the fine paid be returned to the appellant.  I said I would hand my reasons down in due course.  These are my reasons.  

4. The matters in issue in the trial were straightforward. 

5. The prosecution case was that the appellant at the Yue Kee Supermarket in Wong Tai Sin (“the store”) stole two cans of coconut cream valued at $9.80.  The evidence was that the appellant was apprehended outside the store carrying a number of plastic bags in both hands.  Amongst these was one bag containing two pieces of bitter cabbage that had been paid for and one bag containing two cans of coconut cream that had not been paid for. 

6. When it was established that the appellant had not paid for the coconut cream the police were called.  The appellant was interviewed under caution and her explanation given in the course of that interview was that she had no intention to steal the two cans of coconut cream.  She said that she had the bitter cabbage in one bag — because it had to be weighed and priced by the cashier and the two cans of coconut cream in another bag (both bags were obtained from inside the store) and that she had placed both bags on the cashiers’ counter for processing.  She was not sure of the price of the bitter cabbage but thought when she was asked for $11.80 by the cashier that this was for both the bitter cabbage and the cans of coconut cream.  She explained that she did not examine the receipt given to her by the cashier before she left the store because she was in a hurry. 

7. It was the prosecution case that the appellant had deliberately not placed the cans of coconut cream on the cashiers’ counter for processing when she paid for the bitter cabbage. 

8. The cashier was the principal prosecution witness in the trial.  It was her evidence that the appellant when she arrived at the cashiers’ counter was carrying a number of plastic bags in one hand and the bitter cabbage in the other.  The cashier weighed and priced the bitter cabbage before placing it inside another plastic bag and then collected $11.80 from the appellant.  Shortly after this she said she was approached by another member of staff and asked whether the appellant had paid for two cans of coconut cream to which she replied no.  She said she only charged for the bitter cabbage because the appellant had not shown her the two cans of coconut cream.  In cross-examination she agreed that on that particular day she was the only cashier on duty and the store was moderately busy.  There were she said several customers lined up behind the appellant when she was processing the appellant’s purchases. 

9. It was suggested to the cashier that the appellant could have placed the bag with the tins of coconut cream on the cashiers’ counter but that she had overlooked it.  She disagreed.  It was suggested to her that she may have mistakenly assumed that the two cans of coconut milk were the purchases of the customers behind the appellant.  She was adamant that this was not the case albeit that she could not remember what purchases had been made by the customers immediately in front of and behind the appellant on that day and that there were no dividers used at the cashiers’ counter to separate the purchases of individual customers. 

10. The cashier confirmed that the price of traditional cabbage of the same quantity of bitter cabbage purchased by the appellant would be around $2.00 to $3.00.  This as will be seen is a matter of some moment. 

11. No witness in the prosecution case other than the cashier gave evidence of the movements of the appellant before she left the store. 

12. The defendant gave evidence and confirmed what she had previously told the police when interviewed, namely, that she thought the cashier had processed the cans of coconut cream.  She said that she thought that the price of the coconut cream was $4.90 per tin and that the bitter cabbage might be $1.50 to $2.00 — hence she was not surprised when the cashier asked her for $11.80.  She assumed that this figure included the bitter cabbage and the coconut cream. 

13. Given the above one is left with the situation where the cashier says that the appellant did not place the coconut cream on the counter.  The appellant said she did.  I cannot say in all of the circumstances that either version in this case is more or less improbable.  What might resolve that dilemma is, if it is apparent that one or the other, i.e. the cashier or the appellant is demonstrably untruthful.  The Deputy Magistrate determined that the appellant was untruthful.  It is the process by which he reached that conclusion that concerns me. 

14. The Deputy Magistrate rejected the evidence of the appellant and accepted the evidence of the cashier.  In so doing he said that the cashier was “certain about her evidence and unshaken in cross-examination”.  He said of her “there is no inherent improbability in her evidence”.  The same with respect may be said of the evidence of the appellant.  The appellant’s evidence that she knew the price of the coconut cream and assumed, (incorrectly as it transpired) that the bitter cabbage would be about the same price as ordinary cabbage has in it no inherent improbabilities.  It was to my mind not unreasonable to assume, as the appellant says she did, that the figure of $11.80 was for all of the purchases.  This is all the more so given the cashier’s evidence which is refereed to in paragraph 10 above as to the price of traditional cabbage.  

15. When concluding that the appellant was not a truthful witness the Deputy Magistrate gave as his reasons :  

“	15.	The Defendant elected to give evidence.  I have carefully considered her evidence but I am of the view that she has not told me the truth.  My reasons are these:
		(1)	The Defendant said that when she paid for the goods she did not know the price of the cabbage.  This is why she did not find it strange that the total price for the three items was only $11.80.  She said it was the first time she bought any cabbage and she had no idea what the usual price was.  I do not believe what the Defendant said.  The Defendant appears to be very particular about price of goods.  She did not buy the coconut cream in other supermarkets and she deliberately went to YK to buy it because the price in YK was cheaper.  If the Defendant is this kind of person, why did she not ask the staff about the price of the cabbage?  In particular she had no idea about its usual price, would it be more reasonable for her to ask about the price before she decided to buy it?  I do not believe the Defendant would be so unconcerned about the price of the goods she never bought before.
		(2)	The Defendant said she had put the coconut cream side by side with the cabbage on the cashier counter.  It that was the fact, there was simply no reason why PW3 would leave out the coconut cream.  There was no evidence that PW3’s view to the counter was in any way obstructed.  If she could see the cabbage, she must have been able to see the coconut cream if they were put closely together with the cabbage.  The fact was PW3 did not register the coconut cream.  The only logical explanation must be that the Defendant never put the coconut cream on the cashier counter.”

The Deputy Magistrate in the first reason appears to reject the appellant’s evidence that she assumed that the price charged was for the whole of her purchases because she had not asked the price of the bitter cabbage.  This ignores the appellant’s evidence that she thought that the price of the bitter cabbage would be about the same as for traditional cabbage.  Whilst it is correct to say that this was the first time she had purchased this particular type of cabbage she had nevertheless turned her mind to that very issue which she is criticized for.  There is nothing inherently improbable in her account.  In the circumstances the reasons given do not to my mind demonstrate that she was an untruthful witness. 

16. As to the second reason for disbelieving the appellant I am likewise concerned given that both scenarios were equally possible.  The Deputy Magistrate concluded that the appellant was not a witness of truth because he accepted that the cashier was.  However in this situation it was possible that the cashier herself could have been mistaken notwithstanding her denials.  This basis for concluding that the appellant was untruthful cannot be sustained.  Her being an untruthful witness was not the only reasonable inference to be drawn in the circumstances.  The cashier could have omitted to process the coconut cream but did not acknowledge her mistake when asked by the other staff member.  Equally the appellant could herself have been mistaken when she said that she had put the items together on the cashier’s counter.

17. The appellant’s employer of 12 years gave evidence in the trial of the fact that the appellant was in her dealings with her an honest and hardworking employee.  The Deputy Magistrate said of this evidence that he had given to himself a “good character” direction both as to credibility and propensity but that the employer’s evidence “was of no assistance as to whether the defendant committed the present offence” and he “attached no weight to her evidence”.  I have serious reservations as to whether or not the Deputy Magistrate gave sufficient weight to the positive good character of the appellant when assessing her credibility.  The directions the Deputy Magistrate gave to himself may be correct when it comes to propensity but he appears to have overlooked the very real relevance of positive good character when credibility was at the core of the issues to be decided. 

18. In consequence I was satisfied that the conviction was unsafe.  

19. Mr Ross on behalf of the appellant applies for her costs.  These are in two parts he submits :

(i)	The sum of $400 being her contribution to the Duty Lawyer Scheme.
(ii)	The sum of $15,470 being loss of income.

As to (ii) I am told that on 3 May 2007 the appellant was convicted.  On 4 May 2007 her then contract of employment expired.  She was to commence a new contract of employment on 5 May 2007 with the same employer.  By reason of the conviction she could not commence that contract of employment and has, pending this appeal, remained in Hong Kong with the permission of the Director of Immigration on a visitors’ visa.  Her employer I am told has generously permitted her to remain for this time at her home but she has been prohibited from being employed.  She claims by way of lost earning four months and one week, namely $3,480 x 4 + $870 = $14,790.  

20. A court has no inherent jurisdiction to award costs in criminal proceedings.  The power to award costs must be derived from legislation, see Secretary for Justice v. Tang Bun [1999] 3 HKC 647. 

21. I am referred to section 8 of the Costs in Criminal Cases Ordinance, Cap. 492 :

“	8.	Defence costs on appeal from magistrate
		Where a judge —
		(a)	allows an appeal to which section 105 or 113 of the Magistrates Ordinance (Cap. 227) applies, in the exercise of his powers under section 120 of that Ordinance; or
		(b)	in any appeal against sentence imposed by a magistrate, quashes the sentence and in place of it imposes a less severe punishment than that so imposed,
		the judge may order that costs be awarded to the defendant.”

Section 120(1)(a) of the Magistrates’ Ordinance, Cap. 227 reads :

“	(1)	On any appeal to which section 105 or 113 applies, the judge may make such orders as to costs, as he may think fit, and may —
		(a)	where he allows the appeal, direct that there shall be included in an costs to be paid by the respondent to the appellant the costs properly incurred by the appellant in the proceedings before the magistrate, or such fixed sum as the judge may consider reasonable in respect of the costs so incurred by him;
			…”

Section 120(1)(a), Cap. 227 refers specifically to “costs properly incurred”.  To my mind that expression refers to legal costs and not loss of income and is incapable of any interpretation which would permit the order sought by Mr Ross.  The claim for loss of income is not a claim for costs but for damages. 

22. I order that the sum of $400 be paid to the appellant by way of costs.