HKSAR v. Aquino Nora Lagazo

HCMA 169/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 169 OF 2016

(ON APPEAL FROM ESCC NO 3406 OF 2015)

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J U D G M E N T

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Background

1.The appellant, Aquino Nora Lagazo, was convicted after trial of theft of a HK$500 banknote.  The HK$500 banknote, the subject matter of the charge, was the property of Mr Chung (PW1), the employer of the appellant whom she had worked as a domestic helper for just one month.

2.The appellant appeals against her conviction.

Prosecution Case

3.The particulars of the charge pleaded that the theft took place on or about 14 October 2015 at the residence of PW1 where the appellant worked as a live-in domestic helper.

4.The appellant started to work for PW1’s family since 15 September 2015.  PW1 resided with his wife, Ms Huang (PW2) who was 8 months’ pregnant at the material time and their child who was then about 14 months’ old.

5.On 11 October 2015, PW1 withdrew HK$5000 cash (all in HK$500 banknotes) from the bank.  He intended to use the money to pay the salary of the appellant.  Before PW1 paid the salary, he wrote down all the serial numbers of the banknotes on a piece of paper (Exhibit P1).  PW1 made such record to avoid dispute and to protect the interest of the family because his sister-in-law once had a dispute with her domestic helper about whether she had paid the salary.

6.PW1 paid the appellant her salary on 14 October 2015.  As PW1 noticed that he still had some HK$1,000 banknotes in the safe that could be used to pay the appellant, he did not use the HK$500 banknotes to pay the appellant’s salary.  He took out four HK$1,000 banknotes from the safe, recorded their serial numbers on P1 and paid the appellant her salary of HK$4110 with four HK$1,000 banknotes from the safe, five HK$20 banknotes and one HK$10 banknote. PW1 put the unused HK$500 banknotes in an unlocked drawer of the desk in the study.

7.On the next day, i.e. 15 October 2015, the appellant went on holiday.  She returned home shortly after 9 pm.  Subsequent to the appellant’s return, PW1 wanted to put the HK$500 banknotes in the safe, he found one HK$500 banknote missing.  He searched around the premises with nil result.  PW2, the wife, said she did not take the money.  PW1 eventually asked the appellant if she had taken the money.  The appellant said she did not and she showed PW1 her wallet.  PW1 looked through the wallet but could not find the missing banknote.

8.PW1 then questioned the appellant where the money was and why she left home earlier than usual that morning without showing him her bag.  The appellant simply said she had not taken the money.  When the appellant was asked whether it would be in one of the drawers, she said no and threw her belonging from her room to the corridor.

9.PW1 made a report to the police and two officers (including PW3) came.  PW3 saw that there were miscellaneous items scattered on the corridor.  PW3 asked the appellant if the items belonged to her and she confirmed.  PW3conducted a search in the appellant’s room and found a handbag on the appellant’s bed.  A wallet was found in the handbag and in the inner pocket of the wallet PW3 found a folded $500 banknote.  PW3 showed the banknote to PWl who confirmed that it was the missing banknote. The appellant was arrested for theft.

Defence’s Case

10.The appellant elected to testify but called no witness.

11.The appellant is 44 years old and has three daughters.  She came from the Philippines and worked as a domestic helper in Hong Kong for two employers from 2000 to 2004 and from 2011 to 2015.  In between she worked in Taiwan for two years and in the United Arab States for two years.  The appellant had a hitherto clear record.

12.The appellant testified that PW1 and PW2 treated her well at the beginning.  Their attitudes changed after she made some mistakes.  PW1 was not happy about how the appellant cleaned premises.  He frequently scolded the appellant and threatened to make the appellant drink dirty water.  PW1 also installed CCTV cameras in the premises to monitor the appellant.

13.In early December 2015, the appellant took some steps to borrow from a bank and was found out by PW1.  PW1 was angry as he thought the appellant might cause trouble to his family.  PW1 told the appellant he intended to terminate her employment.  The appellant agreed on conditions that that the couple would pay her one month salary and air ticket to the Philippines.  Initially the couple agreed to the conditions but they changed their mind and the appellant continued to work for them until the day of her arrest.

14.On 14 October 2015, the appellant received her monthly salary of HK$4110.  The following day, i.e. 15 October 2015 was a rest day, the appellant left the premises at 8:50 am (ten minutes earlier than usual), she met her friends and remitted some money to the Philippines.

15.The appellant returned home five minutes late in the evening and she was scolded by PW1.  PW1 asked the appellant to take a shower.  When she came out, PW1 and PW2 asked her to go to the living room for a talk.  PW1 and PW2 said they did not want her in the premises anymore.  The appellant said she wanted to stay.  Suddenly, PW1 took out the belongings of the appellant from her room and scattered them on the corridor.  PW1 then kicked them into the living room.  Whilst her belongings were being kicked, the appellant saw her wallet (Exhibit P4) (which she used to keep in a drawer of her room) next to her bag (Exhibit P5).  PW1 demanded the appellant to pick up her own belongings and leave.  PW1 then went into the bathroom, he came out with a mop and used it to mop on the appellant’s face.  PW1 then took water from the dehumidifier and poured it onto the appellant’s face, making her wet.

16.After a while, PW1 called the police.  Some police officers arrived at the premises thereafter.  The officers searched the appellant and her belongings but nothing could be found.  At this juncture, PW2 took out P4 from P5 which was in the living room.  PW2 opened the wallet and took out a folded HK$500 banknote.  PW2 gave the banknote to one of the officers.  The officer asked the appellant if the banknote belonged to her and she replied no.  The appellant had no idea why there was a banknote in P4, P4 was broken she was not using it.  She had a big wallet which she used daily.  It was only when the Police came that the appellant was first accused of stealing HK$500.  Neither PW1 nor PW2 said anything about missing money before the Police arrived.  The appellant said she had never taken any banknote from the drawer in the study.

17.The appellant said when she took a shower after she returned home on 15 October 2015, the door of her room and the drawers where she originally kept P4 were not locked. 

The Magistrate’s Reasons

18.The Magistrate found the evidence of PW1 and PW2 both credible and reliable.  The Magistrate found that PW1 and PW2 gave their evidence in a clear and straightforward manner, they were sincere when giving evidence and they remained unshaken under very thorough cross-examination.  The Magistrate also found their evidence consistent with each other even on some minute details.

19.The Magistrate considered the possibility of PW1 and PW2 colluding with each other to frame up the appellant.  In the end, he felt sure that the couple did not frame up the appellant.  The couple employed the appellant mainly for the purpose of helping the couple to take care of their one-year-old child. The case took place at a time when the couple needed the assistance of the appellant desperately; PW2 was heavily pregnant and was about to deliver their second child.  The Magistrate asked rhetorically:

“why would they take the trouble to frame up the defendant and terminate her contract when they had no idea if the new helper would be any good” (Para 13 of the Statement of Findings).

20.The Magistrate felt sure that both PW1 and PW2 had told the truth.  He found them to be honest and reliable witnesses and he accepted their evidence.

21.As for PW3, the Magistrate found that he has no reason to fabricate any evidence against the appellant.  The Magistrate found the evidence of the officer clear and simple and was unshaken under cross‑examination.  The Magistrate was sure he told the truth.  He found the officer an honest and reliable witness and he accepted his evidence.

22.The Magistrate considered the evidence of the appellant and gave himself a full Berrada direction on good character.  The Magistrate said at paras 16 and 17 of the Statement of Findings that:

“16. The defendant elected to give evidence. After careful consideration, I am of the view that she was not telling the truth. The defendant said it was PW2 who took out the missing banknote from the defendant’s old wallet and handed it to PW3. Her version on this important issue is directly contradictory with PW3’s version. PW3 said clearly that it was him who recovered the missing bank note from the defendant’s old wallet. PW3 is an independent witness, in the sense that there is absolutely no reason he would take the side of PW1 and PW2. Further, as he gave evidence before the defendant, he did not know what the defendant’s version would be. It is an important piece of fact of the case and I am sure PW3 would not make mistake. Therefore the only logical conclusion is that the defendant was not telling the truth. She lied to support her allegation that PW2 was framing her up. Further, I also find if PW1 really used a mop to mop the face of the defendant, it would be wholly unreasonable for her not to tell the officers.

17. After consideration, I believe the defendant did not tell the truth and I reject her evidence.”

23.The Magistrate found that the only and irresistible inference to be drawn from the evidence he accepted was that the appellant stole the HK$500 banknote from PW1 and she intended to permanently deprive PW1 of the money,  he found all the elements of the charge proved beyond reasonable doubt and he convicted the appellant accordingly.

Grounds of Appeal

24.Mr Ross, for the appellant, puts forward two grounds of appeal.

25.Under Ground 1, the appellant complains that the Magistrate failed to consider evidence that was capable of raising a reasonable doubt as to the appellant’s guilt, and failed to consider evidence and matters tending to show that appellant was framed up:

(i) The appellant’s bag, but not her wallet, was searched ordinarily when she took her day off.

(ii) PW1 left the HK$500 note unsecured in a desk drawer in the study room on 14 October 2015.

(iii) The appellant would have access to the HK$500 before her day off on 15 October 2015 and would not have had time to take the HK$500 after she returned home on 15 October 2015.

(iv) The appellant did not, if she had taken the HK$500 note on 15 October 2015, take the opportunity to dispose of the HK$500 note when she made a remittance to the Philippines on 15 October 2015 during her day off time.

(v) PW1 took a record of the serial numbers of the bank notes to be used for the appellant’s salary, HK$4110, and yet took the serial numbers of HK$20 notes when they could not be used to make up the appellant’s salary.

(vi) PW1 failed to obtain a receipt when he paid the appellant her salary on 14 October 2015 though he was concerned that she may deny receiving her salary from him.

(vii) Recording the serial numbers of the bank notes could not prove the appellant had been paid her salary if the appellant had denied payment and disposed of her salary.

(viii) The learned Magistrate made a finding that PW1 and PW2 did not frame up the appellant because they did not have a reason to terminate her because the appellant was needed to look after a one‑year‑old child, and PW2 was currently pregnant and about to give birth, when, on the other hand, PW1 and PW2 were dissatisfied with the appellant’s service, because she could not clean, she disclosed the family’s home telephone number to a financial institution, she allowed a stranger, a repairman, into the apartment without permission and she wasted food.

(ix) The HK$500 note was found in a wallet containing only the note and no other belongings of the appellant.  The note was folded into a small square, so giving the impression that it was being hidden.  The bank note could, to the appellant’s knowledge, be disposed of safely, by placing it in her other wallet unfolded and leaving the apartment with it on her day off on 15October 2015.

(x) The appellant’s account that PW1 used a mop to mop the appellant’s face was rejected by the learned Magistrate because the appellant had not told the matter to the police, nor reported the matter, when the appellant gave evidence that she had told the police at the Aberdeen Police Station about the matter.

(xi) The Magistrate rejected the appellant’s evidence that PW2 took the HK$500 note from the appellant’s wallet when police officer PW3 gave evidence that it was he who took out the note.  However PW3 said, contrary to PW2’s evidence that PW2 had asked the appellant where her wallet was.

(xii) PW1 said that three surveillance cameras were not working and two others were out of order, however PW1 also said he could view what the camera was showing through his and PW2’s smart phones.

26.Ground 2 argues that by reason of the matters raised in Ground 1, there is a lurking doubt as to whether the appellant’s conviction is safe.

The Respondent’s Submissions

27.Miss Ho, for the respondent, argues that the matters set out under Ground 1 had been placed before the Magistrate and must have been sufficiently assessed and considered by him.

On Principles Governing Magistracy Appeals

28.On the principles governing magistracy appeals, I would adopt the judgment of Zervos J in HKSAR v Fok James Alistair HCMA 82/2015, Zervos J said in paras 4 to 6 of the judgment:

“4. The principles relating to a magistracy are well settled. As noted by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383, a magistracy appeal is a rehearing on the papers. He explained at paras 59 and 60 that the duty of the appellate court was not to determine whether error had been made, and if so what the consequence of such an error would be as if conducting an appeal in the strict sense, but rather whether any error that had been identified prevented the appellate court from performing its statutory duty of conducting a rehearing. He noted that if the appellate court could conduct the rehearing that it should do so and if it could not then it should allow the appeal, making such order or orders as seen to it, in the circumstances, to be just. He further noted that even if no error had been identified and no ground of appeal made out then that was not the end of the matter as the duty on the appellate court was to conduct a rehearing and it would do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilty of the appellant.

5. McWalters J summarized the relevant legal principles at para 66 by providing eight statements of principles of which the last four are of particular relevance to the conduct of a magistracy appeal and to the discussion in this judgment. They state that:

‘(5) The appellant court will only depart from a magistrate’s finding of fact or determination of a witness’ credibility if satisfied that it is plainly wrong.

(6) Error by the magistrate, especially one constituting a material irregularity, may lead to the appellate court allowing the appeal and quashing the conviction.

(7) The test in determining whether an error by a magistrate should lead to the appeal being allowed and the conviction quashed is whether it is just for such an order to be made.

(8) Absent the appellate court identifying any error by the magistrate and absent any of the grounds of appeal succeeding, the appellate court must still perform its statutory duty of conducting a rehearing. This requires the appellate court to be satisfied that on the evidence adduced by the prosecution. The guilt of the appellant has been proven beyond reasonable doubt, failing which the appeal must be allowed.’

6. The particular difficulty for an appellate court in the conduct of a magistracy appeal is when it is invited to interfere with the magistrate’s assessment of the credibility of a witness.  The magistrate has had the advantage of seeing and hearing the witness and is in a better position to assess his credibility. It is for that reason that an appellate court will only depart from a magistrate’s determination of a witness’s credibility if it is plainly wrong. McWalters J at paras 32 and 33 provides a useful discussion on the limitation on an appellate court of no having seen and heard the witnesses. This issue leads to the next question as to how an appellate court determines whether a magistrate was ‘plainly wrong’ in his assessment of the credibility of witness.”

29.What Barnes J said in para 47 of her judgment in HKSAR v Chan Wai-yip Albert [2016] 2 HKLRD 734 (the first authority relied upon by the Respondent) is also useful:

“A magistracy appeal is carried out by way of a ‘rehearing’ on the testimony and evidence before the magistrate (supplemented by any fresh evidence which the appellate court may admit) ; see the case CHOU Shih-bin v HKSAR. In my view, in respect of the facts of a case, the appellate tribunal has to recognize that a trial magistrate does enjoy the advantage of observing and hearing the witness giving evidence, and the appellate court cannot rely on the written transcripts on paper to determine if a witness is trustworthy and reliable: see the case Raymond CHEN v HKSAR. The credulity and reliability of any particular witness is solely within the assessment of the magistrate. However, when the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or the magistrate has misquoted, or omitted or failed to consider any significant aspect of the evidence, the conviction would then be rendered unsafe and unsatisfactory.”

On Adequacy of Reasons

30.One of the complaints made by Mr Ross is that the reasons given by the Magistrate were too brief and he failed to analyse the evidence pertaining to some important issues.

31.On the question of adequacy of reasons given by a District Judge, Blair-Kerr J said at page 82 in Low v R [1961] HKLR 13:

“But it must be remembered that the District Judge is himself the jury. He has heard the whole of the evidence and he is not bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.”

32.In my judgment, the above principle stated by Blair-Kerr J is equally applicable to statements of findings by magistrates.

On Discrepancies of Evidence

33.Complaints were made of the discrepancies within the evidence of PW1 and that between PW1 and PW3.  I shall look into the evidence in some depth in the latter part of this judgment.  For the approach that an appellate court should adopt in dealing with complaint about discrepancies in witnesses’ evidence, I shall adopt what Stock J (as he then was) said at para 14 of the judgment in The Queen v Kwing Wing On & Another HCMA 574/1996:

“12. Pausing at this juncture. I would like say this: that microscopic dissection of a transcript will always discover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even the with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

Discussion

34.I am grateful to Mr Ross and Miss Ho for their detailed submissions and assistance.  I have the benefit of having read the full transcripts of PW1 to PW3 and that of the appellant placed before me.

On Ground 1

35.Mr Ross complains that the oral reasons given by the Magistrate at the time he convicted the appellant extended less than two pages of transcript.  In my judgment, the evidence adduced and the issues before the Magistrate were not complicated and a realistic approach should be taken. Applying the principle as Blair-Kerr J stated in Low v R, the Magistrate is:

“not bound to set down precisely what he accepts, what he rejects and what weight he attaches to every piece of evidence, or the arguments of counsel on the evidence, or the whole of the workings of his mind in arriving at his conclusion.”

36.Furthermore, the Magistrate made it very clear that the oral reasons he gave at the time he convicted the appellant were “brief reasons” (AB 29Q).

37.Mr Ross complains in para 24 of the Appellant’s Submissions that:

“PW1 and PW2 were described as ‘sophisticated’ ‘honest and reliable witnesses’ (30E). The transcript, in error, refers to them as being ‘unsophisticated.’

The passage at Letter E at page 30 of the Appeal Bundle actually reads:

“I have carefully considered the evidence of PW1 and PW2. I am given the strong impression that they both are unsophisticated, honest and reliable witnesses.”

38.It is clear from the transcript of the oral reasons that the Magistrate did not describe PW1 and PW2 as “sophisticated” at the passage referred to by Mr Ross.  The oral reasons given by the Magistrate are all contained in pages 20 to 31 of the Appeal Bundle, nowhere in the oral reasons did Magistrate describe PW1 and PW2 as “sophisticated”. 

39.Paragraph 13 of the Statement of Findings corresponds what the Magistrate said about PW1 and PW2 in his oral reasons, the Magistrate said:

“13. I have carefully considered the evidence of PW1 and PW2. I was given the strong impression that they both are honest and reliable witnesses.”

40.The Magistrate did not use the word “unsophisticated” in para 13 but there is nothing inconsistent between the oral reasons and the Statement of Findings by reason that the word “unsophisticated” is absent in the Statement of Findings.

41.Mr Ross complains that there was a discrepancy between the evidence of PW1 and that of PW3, in that PW1 said that in the sitting room his wife, PW2, took the small wallet (P4), containing the HK$500 from the large bag (P5) whereas PW3 said he took the wallet from the bag when he was in the appellant’s room.  PW3 agreed that in the sitting room PW2 had asked the appellant where the wallet was in the presence of PW3.

42.In my judgment, there was nothing wrong for PW2 to ask the appellant where her wallet was in the present of PW3, who was there to investigate a case of alleged theft reported by the couple.  The Magistrate had the opportunity of hearing and seeing the evidence of the appellant, the Magistrate was in a better position than the appellate court to assess the credibility of the appellant and determine whether the appellant was only mistaken as to which room she was in when the HK$500 banknote was found or she actually lied about the matter.

43.Mr Ross submits at para 26 of his submissions that “PW1 said that in the sitting room his wife, PW2, took the small wallet, P4, containing the $500 from her large bag, P5 (138Q, 152J).”

44.The evidence relied upon by Mr Ross, i.e. 138Q and 152J was not the evidence of PW1, but that of the appellant.  At 138Q, it was the appellant who gave the answer “[t]hen my female boss took wallet, photo 8, inside my bag, photo 7.”  At 152J, again it was the appellant who said “That’s not true; only when they ask and my female employer took this in the bag in the sitting room.”  Mr Ross was the trial counsel in the court below, quite how he could confuse the evidence of the appellant with that of PW1 I do not know.  It is immediately clear from the reading of the passages cited that they came from the evidence of the appellant, hence the references to “my female boss”and“my female employer”.

45.As for what happened after the arrival of the police, PW1 said at 90A-B:

“… they started to classify them, as I said. After the classification, they started searching and, during the search, they found the bag ..I mean they found the bank note.”

However, PW1 did not say he witnessed the finding of the banknote, for he had already said in the earlier part of his evidence that he did not see where the police found the HK$500 banknote (40L and 72C-D)

46.As for the evidence of PW3 that in the sitting room PW2 had asked the appellant where the wallet was in the presence of PW3.There is nothing inconsistent between the evidence of PW1 and PW3 in that PW1 said he was not present when PW2 asked the appellant where the wallet was in the presence of PW3.

47.There is no substance in the complaint that there was discrepancy between the evidence between PW1 and PW3 as to where the HK$500 was found.

48.It is true that the evidence of the appellant was that PW2 took the appellant’s wallet from inside the appellant’s bag and gave it to PW3 while they were in the sitting room (139R-U), not as the Magistrate said at para 16 of the Statement of Findings (the oral reasons at 30R-S) that:

“The defendant said it was PW2 who took out the missing banknote from the defendant’s old wallet and handed it to PW3.”

In my judgment, despite the error made by the Magistrate, the appellant’s evidence is still in stark contrast with PW3’s evidence on the issue, that he saw a bag in the appellant’s room.  He asked the appellant whether that bag was hers and the appellant said yes.  PW3 searched the bag in the appellant’s presence and found the wallet.  PW3 found the HK$500 banknote inside the inner pocket of the wallet.  The evidence of PW3 on the issue, which the Magistrate accepted as true and reliable, cannot be reasonably reconciled with the evidence of the appellant.  The Magistrate was right to reject the evidence of the appellant despite the error. In my judgment, the error made by the Magistrate does not have the effect of preventing the appellate court from performing its statutory duty of conducting a rehearing. In my judgment, I can conduct a rehearing despite the error.  PW3 was the officer who found the HK$500 banknote and I am sure he would not make mistake on this important issue.  PW3 had no reason to be biased against the appellant. I find that the evidence of PW3 as to where and how the HK$500 was found credible and reliable.  The evidence of PW3 on this very important issue contradicted the evidence of the appellant.  It follows from the court’s findings that it was PW3 who found the wallet and the banknote in the room of the appellant that the appellant’s evidence must be rejected.  In my judgment, the appellant was not mistaken but that she lied to support her case that PW2 was framing her up.

49.It was the appellant’s case that the wallet (P4) in which the HK$500 banknote was found was always kept in a drawer in her bedroom and PW1 and PW2 would not know where P4 was (146L-N, 149M-N).  Given the officer’s evidence that he found the wallet (P4) inside the bag (P5) on the bed inside the appellant’s room (158C-E), it is difficult to see how the couple could find the wallet and frame up a case of theft against the appellant.

50.The appellant said PW1 used a mop to mop her face and poured water over her body, she got wet and she went to the toilet to dry herself.  PW1 then said he would call the police. (136F-Q) The Magistrate said at para 16 of the Statement of Findings that:

“Further, I also find that if PW1 really used a mop to mop the face of the defendant, it would be wholly unreasonable for her not to tell the police.”

Mr Ross complains that the appellant, in her evidence, did testify that she told the police about the mopping incident and of having poured water over her head at the Aberdeen Police Station, hence the Magistrate was wrong in his analysis.

51.In my judgment, the appellant, according to her evidence, only told the police about the mopping incident when she was arrested at the Aberdeen Police Station; the appellant did not complain to PW3 and the officers who attended the premises that she had been assaulted by PW1 and PW2, i.e. the couple who made the report and accused her of stealing.  The Magistrate was entitled to make the observation under complaint in para 16.  Furthermore, the evidence of the appellant on this topic was quite inconsistent, she initially agreed that before the trial, she told nobody about the assault by PW1, i.e. the mopping of her face and pouring of water over her head.  She also agreed she did not tell the police about the incident.  The appellant then changed her evidence and said she did tell the police about the incident when she was arrested at the Aberdeen Police Station but the police just took no action of the complaint she made.  In my judgment, the Magistrate, who had the opportunity of seeing and hearing the appellant’s evidence on this issue, is quite entitled to disbelieve the appellant’s evidence.

52.In my judgment, it did not make sense at all that, if it was PW1’s plan to frame up against the appellant, he would mop the appellant’s face with a mop and poured water on her body.  Had PW1 assaulted the appellant in the way she described, there was every chance that she would complain to the police officers who attended the premises.  Had PW1 poured water on the appellant’s body and got her wet, there was every chance that the appellant would show the wet clothes to the police as proof. 

53.Mr Ross complains that PW1 and PW2 had a motive to get rid of the appellant, there was evidence from the couple that the appellant could not clean properly, she disclosed the family home telephone number to a loan company, she allowed a stranger into the flat and she wasted food.  Mr Ross submits the Magistrate was wrong to find that PW1 and PW2 had no motivation to frame up a case of theft against the appellant as PW2 was heavily pregnant at the time and it would be inconvenient to replace the appellant.

54.In my judgment, the various shortcomings identified by Mr Ross, objectively looked at, do not provide the couple a motive to frame up a case of theft against the appellant.  The Magistrate was right to find that PW1 and PW2 did not frame up the appellant.

55.Mr Ross submits that the appellant had insufficient time to take the HK$500 banknote in the 30 minutes after she returned home on October 15, as she was washing her clothes and showering.  Had she taken the HK$500, this would have happened on October 14 or October 15, before she left home on her day off.  Mr Ross goes on to argue at para 35 of the Appellant’s Submission that the prosecution case is that it was the appellant who stole the HK$500 on October 14 or October 15 before she left home on her day off is inconsistent with the fact that the HK$500 banknote was found in the wallet (P4), i.e. it was not spent by the appellant, and the fact that the appellant made a remittance of more than HK$500 worth of pesos to the Philippines on the appellant’s day off , she should have remitted the banknote if she had stolen it.  The analysis was not done by the Magistrate, Mr Ross argues.

56.The evidence of PW1 was he had jotted down the serial numbers of the HK$500 banknotes on a piece of paper.  From the evidence adduced, the jotting down of the serial numbers of the banknotes by PW1 was not something known to the appellant. The HK$500 banknote that went missing and subsequently found in the wallet (P4) was just an ordinary HK$500 banknote as far as the appellant was concerned.  If she was the one who had taken the money, she had no urgent reason to spend it or use it in the remittance she made on October 15.  There was a need to get rid of the banknote only if the appellant knew that the serial number of the HK$500 banknote was recorded by her employer.

57.Mr Ross argues the recording of the serial numbers only provide independent proof against the appellant only if the appellant was in possession of the note, if the note had been disposed of, the marking of the note only shows a note to be missing, not necessarily stolen.

58.It was never PW1’s intention to record the serial numbers of the banknotes as proof against theft.  He recorded the serial numbers as proof to avoid any dispute about payment of salary.  I agree a receipt signed and acknowledged by the appellant would provide a better proof but there was nothing sinister about the means taken by PW1, i.e. the keeping of a record of the serial numbers of the banknotes that were used to pay the appellant’s salary, and the bona fides of his act.  The jotting down of the serial numbers was the measure he could think of and the Magistrate was quite entitled to accept PW1’s evidence on the issue. 

59.Mr Ross complains that as PW1 said he intended to use a HK$100 banknote to make up the salary of HK$4110, it was superfluous to mark the HK$20 notes.  I can do no more than to pray in aid the passage I cited of Stock J’s judgment (as Stock NPJ then was) in Kwong Wing On.  I would describe the point about the superfluity of the recording of the HK$20 banknotes as a “comforting crumb” that the Magistrate would not be expected to deal expressly with.

60.I do not see the fact that the appellant did not take the HK$500 banknote out of the home give rise to a doubt, let alone a reasonable one.  The appellant did not know PW1 had kept a record of the serial numbers of the banknotes, the fact that the HK$500 banknote was folded into a small square and put inside the inner pocket of the empty wallet (P4) does not invite suspicion.  It was safe for the HK$500 banknote be kept in the wallet (P4) as, according to the appellant, PW1 and PW2 did not know where the wallet (P4) was kept (146L-N).

61.PW1 said in his evidence that of the five surveillance cameras in the home, three were not working and two were out of order.  PW1’s evidence on this issue is not inconsistent with his answer to the summons to produce the recordings that the cameras had no recording function and his evidence that he could view what a camera was showing through his and his wife’s smartphones.  I do not think PW1’s evidence on this issue was inconsistent, what PW1 said was when the cameras were working/not out of order, he could view what a camera was showing through his and his wife’s smartphones, in any event, the cameras had no recording function.  As for the appellant’s evidence that PW1 had shown the appellant his smartphone that the appellant had not used soap to wash her hands, the Magistrate disbelieved the appellant’s evidence and I see no good reason to disturb the Magistrate’s assessment of the appellant’s credibility.  There is no substance in the complaint over the issues of the surveillance cameras.

62.Ground 1 fails.

On Ground 2

63.I agree with Miss Ho that the findings of the Magistrate were not unreasonable, illogical or inherently improbable.  Apart from the error about the evidence of the appellant as to whether it was the HK$500 banknote or the wallet (P4) that PW2 handed to PW3 , the Magistrate had not misquoted, omitted or failed to consider any significant aspect of the evidence.  I do not agree with Mr Ross’s submission at para 41 of the Appellant’s Submission that the reaction produced by the general feel of the case, having regard to the evidence, gives rise to a lurking doubt about the safety of the conviction.

64.Ground 2 fails.

Re-hearing

65.I conduct a re-hearing on the evidence before me.  I am satisfied that on the evidence adduced by the prosecution, the guilt of the appellant has been proven beyond reasonable doubt.

66.The appeal against conviction is dismissed.

Ms Ho May-yu Lily, Senior Public Prosecutor of the Department of Justice, for the respondent

Mr Philip Geoffrey Ross, instructed by the Director of Legal Aid,for the appellant