HKSAR v. PAINI

HCMA 72/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 72 OF 2012

(ON APPEAL FROM KTCC 3662 OF 2011)

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BETWEEN

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J U D G M E N T

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1.  This Appellant, a woman of previous good character in her late 20s, appeals against her conviction in the Magistrates’ Court on a charge of theft. The particulars of the charge read:

“PAINI, you are charged that between 29^th day of August, 2010 and 17^th day of July, 2011, inside Room 2709, Fung Chuen Court, 80 Po Kong Village Road, Kowloon, in Hong Kong, you did steal one facial powder, two lipsticks and two rings, the property of CHAU Lai-shan and one male wrist watch, the property of MOK Pak-shun (GTV/$1,1700 HKD).”

2.  The admitted facts should be set out in full, and they read:

“A. Defendant’s identity

The identity of the Defendant is not in dispute.

Between 24^th August 2010 and 17^th July 2011, Defendant was employed as a domestic helper and from 29^th August 2010 to 17^th July 2011 was living with her employer ie Madam Chau Lai Shan and her family at Room 2709, Fung Chuen Court, 80 Po Kong Village Road, Kowloon (‘the Premises’).

B. Arrest and Caution

At 2240 hours of 17^th July 2011, Defendant was arrested by SPC21481 at the Premises. Under caution, Defendant said, in Punti dialect, that she picked up the stolen items from the rubbish bin, she could not recall the exact date.

C. Possession

At the time of the arrest mentioned in B, the stolen items were found in the Defendant’s possession:-

1. One male wrist watch of the brand ‘Bvlgari’; (P1)

2. One ring, silver in colour; (P2)

3. One ring, silver in colour; (P3)

4. One pack of facial powder of brand ‘Laneige’; (P4);

5. One lipstick of the brand ‘Estee Lauder’; (P5) and

6. One lipstick of the brand ‘Bouge a Levres’. (P6)

The 6 items above are now adduced as exhibits P1-P6 respectively.

D. Record

         Defendant has a clear record.”

3.  In the witness-box, the Appellant said that the ring P3 had been given to her by Madam Chau’s sister-in-law while the other items ie P1, P2, P4, P5 and P6 had been picked up by her from the rubbish bin.

4.  The Magistrate, having seen and heard all the witnesses and received all the submissions, felt sure that there was no truth in the Appellant’s evidence and that she had stolen all the items.

5.  I have considered all the points urged on the Appellant’s behalf.  I do not find in them any basis on which it would be proper to disturb this conviction which the Magistrate arrived at after seeing and hearing all the witnesses and receiving all the submissions.  It was an issue of fact, and there was evidence on which to convict.

6.  There is, however, one error which the Magistrate did make.  She said in paragraph 74 of her Statement of Findings:

“The Appellant admitted that she did not check with PW1 whether P2, P4-P6 were supposed to be thrown away. However, the Appellant admitted that an honest person would have asked his or her employer if he or she picked up items like P1, which was working and of a famous brand.”

7.  In truth, the following appears in the cross-examination of the Appellant.  First, this appears at page 158S-U:

“Q. So I simply suggest to you that an honest person would have asked when he or she picked up a watch of a famous brand, Bvlgari from a rubbish bin would have asked the employer whether it is really been abandoned, do you agree?

A. I disagree, because I did not know about this brand Bvlgari was.”

8.  Then this appears at page 159P-U:

“Q. Yes, that is my position only. Okay, but in case you actually had picked these items up, P1 to P6, from the rubbish bin, I suggest to you that at the moment when you picked these items up, you were dishonest in not asking your employer whether they are actually abandoned and without asking you kept it dishonestly.

A. I disagree.

Q. And you actually did not genuinely have the belief that these goods were abandoned?

A. In my mind, I believed these things were thrown.

Q. So you disagree with my saying that your belief was not genuine, right?

A. Yes.”

9.  I have given these answers anxious consideration.  Ultimately, I do not think that they render the conviction unsafe or unsatisfactory.  The point involved is one of common sense.  It does not depend on the Appellant’s acceptance of it.  And of course the case has to be looked at as a whole.  Nothing should be taken in isolation or out of context.

10.  In all the circumstances, I am satisfied that the proper course is to dismiss this appeal, and it is dismissed.