HKSAR v. QUIJANO ANGELINA FERNANDEZ

HCMA487/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.487 OF 2006

(ON APPEAL FROM TWCC 863 OF 2006)

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BETWEEN

  HKSAR Respondent
  and  
   QUIJANO ANGELINA FERNANDEZ Appellant

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Before : Deputy High Court Judge Longley in Court

Date of Hearing : 10 August 2006

Date of Judgment : 10 August 2006

Date of Reasons for Judgment : 16 August 2006

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REASONS FOR JUDGMENT

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1. On 10 August 2006, I allowed the appellant’s plea against conviction. I said I would deliver my reasons later.

2. The appellant is a Filipino domestic helper. She appealed against her conviction by Mr Don So at Tsuen Wan Magistrates’ Courton 28 April 2006 of the theft of a diamond tie clip belonging to her employer, Mr Ng Sheung Ching and the sentence of six months’imprisonment imposed by the magistrate.

3. On the afternoon of 21 February 2006, police were called to the premises where the appellant worked in connection with an allegationmade by her employer that she had stolen some money. No proceedings resulted from the allegation of the theft of money, but whileat the premises, the police found the tie clip belonging to Mr Ng in the main compartment of a bag, exhibit P3, belonging to theappellant.

4. The evidence of Madam Lee Kit Man, PW2, the wife of Mr Ng, was that she had bought the tie clip for her husband in about 1997 or1998 at a cost of about $3,500. She said that her husband had mentioned to her that he had lost the tie clip in about August orSeptember 2005 and that she had asked the appellant whether she had seen it. The appellant had replied in English that she had notseen it.

5. The appellant gave evidence. She denied stealing the clip. She said that about three weeks after she started to work for her employerin July 2005, during the course of a morning she was doing cleaning work in the room of their eldest five year-old daughter who wasplaying. The daughter had taken the clip out from her things and fixed it to the appellant’s hair, telling her “Tse Tse, it’sso beautiful” and said not to tell Momma.

6. The appellant said she had not taken a look at the clip when it was affixed to her hair. She had not noticed any stones on the clipbut it had appeared to her that it was obviously not a toy. She thought it was just a hair clip.

7. Much later, at nearly 1 a.m. the next day when she was about to have a shower before going to bed and was feeling tired, she removedthe clip from her hair in the bedroom which she shared with the other baby daughter of her employer. She said that she did not lookat the clip but immediately dropped into her bag which was placed on top of boxes in her room.

8. While she knew the clip did not belong to her, she did not realize it was an important item for her employer and she just forgotabout it after putting it in her bag. It remained there over the ensuing months until it was found by the police the following February. She denied that her employer had ever asked her about the missing clip.

9. In his Statement of Findings, the magistrate said that he did not find the appellant to be an honest witness. She was evasive, particularlywhen being questioned as to why she had put the clip into her bag and not anywhere else. He did not believe her evidence.

10. He did however accept her admission that the employer’s daughter had put the clip into her hair and that she had later taken theclip off and put it in her bag when she had a bath.

11. He found the clip would have appeared to be obviously an item of value to any ordinary reasonable adult.

12. Based inter alia on this finding, the magistrate found that the only irresistible inference to be drawn was that :

(a) When the appellant put the clip inside her bag, she knew it was something valuable.

(b) She knew that it should belong to the parents.

(c) She was determined to keep it for herself for good. She was determined to deprive the parents of it permanently.

13. He did not believe the appellant’s account that she had forgotten it was there.

14. The magistrate did not find that any dishonest appropriation of the clip had occurred prior to the appellant taking it out of herhair before taking a bath at around 1 a.m. the following day. He accepted the appellant’s evidence as to the circumstances inwhich the clip had earlier been attached to her hair by the employer’s daughter.

15. The magistrate drew the inference of theft from what had occurred when the appellant put the clip inside her bag before having ashower. Having drawn the inference that it would have been obvious to a reasonable adult that the clip was something valuable, hewent to draw the inference that when the appellant put it into her bag, she would have known it was something valuable belongingto her employer which she intended to keep permanently.

16. I have seen the clip, exhibit P2. I am not satisfied that it would necessarily have appeared to have been a valuable item on thebasis of a casual glance.

17. What the magistrate appears to have overlooked is the fact that at the time that he accepted the appellant took off the clip andput it in her bag she did so in the bedroom which she shared with the baby daughter of the family. There is no evidence that thelight was on in the bedroom at that time. Bearing in mind the fact that it was also the baby’s bedroom, there is a clear possibilitythat the light was not on so as to avoid disturbing the baby. In such circumstances, the appellant might well have assumed, particularlysince the five year-old daughter had been playing with it, that it was simply a hair clip of little value. The possibility thatit was dark also may explain why the appellant put the clip into her bag rather than anywhere else in the room. If she had not appreciatedthe clip was something of value, then it might have led to the appellant’s forgetting that it was in her bag over the followingmonths.

18. I do not find in the circumstances and on the evidence that the magistrate was justified in concluding that the only reasonable inferencewas that when the appellant put the clip in her bag she did so dishonestly, intending permanently to deprive her employer of it.

19. For this reason I allowed the appeal and quashed the conviction.

  (P.K.M. Longley)
Deputy High Court Judge

Mr Lee Ka Yun, Kelvin, GC of Department of Justice, for HKSAR

Mr Duncan Percy, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Appellant