HKSAR v. Berbana Ana Liezel Alta

HCMA 233/2019

[2020] HKCFI 105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 233 OF 2019

(ON APPEAL FROM EASTERN MAGISTRACY

CASE NO ESCC 3123/2018)

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Before: Deputy High Court Judge Yiu in Court

Date of Hearing:  18 December 2019

Date of Judgment:  18 December 2019

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JUDGMENT

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1.The defendant was convicted after trial of a charge of theft, contrary to section 9 of the Theft Ordinance Cap 210. She was sentenced by the Magistrate to 6 week’s imprisonment but was later granted bail pending appeal. She now appeals against her conviction.

2.The case was straight forward where the prosecution alleged the Appellant stole RMB1,700 from her employer, while the Appellant denied and alleged that the employer fabricated the incident to get rid of her.

3.The facts were briefly summarised by the Magistrate, and I would simply adopt as follows,

4.The Appellant was a domestic helper under the employ of Madam Wong, PW1, since August 2015.  They, together with PW1’s husband, lived in the subject premises.  On 20 December 2018, PW1 received RMB4,000, consisted of 40 pieces of RMB, 100 banknotes from her son, together with 10 pages of photocopy of the banknotes, she kept them in her handbag.

5.On 21 December 2018, at around 1530 hours, PW1 returned home and checked the number of RMB banknotes correct.  She left the handbag in her bedroom.  At around 1830 hours, PW1 checked her handbag again and found RMB1,700 missing.  Between 1530 and 1830 hours, the handbag had all along been kept inside the bedroom and both PW1 and the Appellant had access to the room.  There was no one in the premises apart from them.

6.PW1 then made a report to the police, PC 25242 (PW2) and SPC 45893 (PW3) attended the premises.  Suspecting the Appellant had stolen the money, they searched the Appellant’s bedroom after seeking her consent.  PW2 took several jackets out from the Appellant’s room to the living room to facilitate the search.  A plastic bag was then found inside the pocket of a black jacket (P4), which belonged to the Appellant.  The missing money was found wrapped by tissue and sanitary napkin inside the plastic bag.  PW2 later arrested the Appellant.

Defence Case

7.The Appellant elected to testify.  She deny taking the money.  She said there was a level of mistrust being built up leading to the material day.  She was being accused of stealing clothes and money from the family before.  The matters were not pursued because of lack of evidence.

8.On the material day, she conducted cleaning duties in the bedroom as instructed by PW1.  She returned to her room to rest at around 2000 hours.  The police later knocked on her door and started to search without asking for consent.  She only signed for consent after she was arrested and brought back to the police station.

9.She witnessed at least two attempts by which P4 was search with no findings.  At one point, when she was packing things in the living room, she saw PW1 pointed to P4 and said something to the police officers in Punti.  PW3 then searched P4 again and found the plastic bag with the money inside.  Upon questioning by PW3, she denied any knowledge of the plastic bag. She also said PW1 was unattended for a period of time when she was packing things and before PW1 directed the police officers to restart the search.  She suggested that the money was planted by PW1.

Magistrate’s findings

10.There is no dispute that money was found from the pocket of P4.  The only issue is whether the Appellant stole it or was it being planted by PW1. 

11.The Magistrate found that PW1 had suspected that the Appellant stealing money from her husband before, yet that only resulted in her being more cautious with her property.  It was also the reason why she would keep photocopy of banknotes she received this time but it had not reached the stage where PW1 had to be get rid of her.

12.The Magistrate did not accept that it was a trap set up by PW1, nor was it unreasonable for PW1 to leave RMB4,000 unattended.  The Magistrate also considered the evidence of PW1, PW2 and PW3.  He found that their evidence were all straight forward and logical and there was no inherent improbability.  However the Appellant’s evidence was rejected by the Magistrate on the following reasons,

13.The Magistrate considered that for PW1 planting money in Appellant’s pocket, it would entail PW1 taking RMB1,700, wrapping them up, making a report to the police and did it when PW2 and PW3 were not paying attention.  The Magistrate found this suggestion impossible and too risky for PW1 even to attempt.

14.As to the Appellant’s claiming that no consent was obtained from her before the search, the Magistrate found that it is contradictory to the signature she made in the police notebook of PW2.

15.The Magistrate also found that upon discovering the missing of money, PW1 made a report to the police.  PW2 and PW3 attended the scene.  They conducted a search with the consent of both the Appellant and PW1.  Due to the lack of space in the Appellant’s bedroom, PW2 removed the jackets to the living room and found the plastic bag with money in his first thorough search.

16.The Magistrate also noted that the police officers might have patted the jacket when it was hanging on the robe or bed and found nothing but he accepted the explanation of the officers that the patting was brief and it was meant for preliminary search only.  The first thorough search with the jackets was conducted in the living room, whereby the plastic bag was found in PW2’s first attempt.

17.The Magistrate, was sure that PW1 did not plant the money and drew an irresistible inference that it was the Appellant who took the money, wrapped them inside the plastic bag and put it in her jacket.  And therefore, the Magistrate found that the Appellant had dishonestly intended to deprive PW1 of the money and the Appellant was guilty as charged.

Grounds for appeal

18.Mr Ross for the Appellant put forward two grounds of appeal.  Firstly the learned Magistrate erred in rejecting the defence of fabrication by failing to consider all opportunities PW1 had to plant the property alleged to be stolen in the Appellant’s jacket.

19.Second, the learned Magistrate erred in rejecting the Appellant’s account of why she signed the police notebook after a search of her room was done after, rather than signing before the search, as unreasonable and therefore not credible when the evidence in support of this account was not considered by the learned Magistrate.

20.On ground one, it is submitted that the Magistrate had only dealt with one occasion in the living room, when the police were searching the Appellant’s belongings.  But the transcript showed that there were at least three other occasions where PW1 could have done it.  First, when PW1 came home on 21 December 2018, no one else was present in her unit and the Appellant arrived 20 minutes later.  

21.Second, when the Appellant told PW1 that she was going to the rooftop to water plants and thirdly, after returning to the flat, the Appellant obtained permission to go out to have a meal at McDonald from around 4.30 to about 5.30 or 6 pm, which was the exact period of time where money might have been allegedly stolen.

22.However, the Magistrate had rejected that PW1 had planted the banknotes in the living room in the presence of the police officers, as being too risky to attempt.  But there was no findings at all about these three other occasions.

23.Mr Ross therefore submitted that the learned Magistrate had, in fact, given an incomplete verdict in the case by not referring to all possible times of fabrication. 

24.The second ground being that the Magistrate had additionally rejected that the Appellant did not sign anything before her room was searched.

25.Respondent also tended to agree that the Magistrate did not consider all the available evidence that PW1 had the opportunity to plant the money anytime from she received it on 20th, until police finding it on 21 December 2018. 

26.Respondent further pinpointed that there were two possibilities, either that the stolen money was not initially in the Appellant’s jacket, or it was just missed by the police officers.  But however, the Magistrate did not state it clearly whether once the police arrived and put the Appellant’s jacket in the living room, PW1 had no access to the Appellant’s jacket at all, particularly when there was evidence from the Appellant that there was a period of time that PW1 were not in the sights of the police officers when the Appellant was packing things.

27.Respondent also stated that there was no findings as to when was the last time Appellant wore that jacket, and it was also suggested that there was no reason given as to why not simply let the Appellant go earlier if there was no trust between them. 

28.But in any event, Respondent finally contended that the Appellate court will only depart from the Magistrate’s determination of witness credibility if it is plainly wrong.  See HKSAR v Fok James Alistair [2015] 4 HKC 247, and stated that the Magistrate had found all prosecution witnesses credible and did not accept the Appellant’s evidence.  The conviction was therefore safe and even if there was any way unsatisfactory, Respondent would ask for retrial on the basis of strength of the evidence and seriousness of the offence.

Consideration

29.The issue to be decided in this case was clearly whether the Appellant did it, or if there was any possibilities that it was being planted by PW1, or others.  The Magistrate, of course, enjoyed the benefit of seeing and hearing all parties giving evidence and the ambit of assessing their credibility, much better than the appellate court and the appellate court would disturb the findings only when it was plainly wrong.

30.However, as also quoted by the Respondent in the Court of Final Appeal case of HKSAR v Yim Kim Po [2014] 17 HKCFAR 202:

“... a learned judge has a duty to give reasons for his decision. However it is unnecessary to recite at length all the evidence. A summary of the salient points is sufficient. Reasons should be read on his assumption that, unless he has demonstrated contrary the judge knew how he should perform his functions and what matters to be taken into account.”

31.Nevertheless, Respondent also accepted that it would have been better had the Magistrate addressed more in his statement of findings.

32.After consideration, I also agree that as this was a one against one case, all the evidence has to be examined carefully to determine the credibility of both PW1 and the Appellant, bearing in mind that the Appellant also has no previous criminal conviction.

33.However, as set out above, both parties also now listed out some salient areas where the Magistrate did not state it clearly in his findings.  Though the Magistrate could, of course, determined their credibility by hearing the evidence, it would be all the better if reasons for rejecting could be more succinctly set out, particularly when the issue on planting was obvious and that there were altogether four possible times and opportunities to be explored, yet, only one was envisaged and rejected.

34.It was therefore unclear whether all other occasions had been duly considered, not to mention other areas as conceded by the Respondent, requesting for more explanation.

35.Thus, in all fairness, the present appeal should be allowed.  But on the strength of evidence, seriousness of the offence and in the interests of justice, a retrial should be ordered.  Despite I also take note from Mr Ross, saying that the amount of money was small and returned and it had already happened quite some time ago.  However, as said, given the seriousness of the offence and strength of evidence and also in public interest, a retrial should be ordered.

36.In my conclusion, appeal allowed and a retrial is ordered and to be tried by another Magistrate. The Appellant’s bail be extended on the same terms until the start of the new trial.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Bar Free Legal Service Scheme, for the Appellant