HKSAR v. Tsui Lok Yin

DCCC 68/2019

[2020] HKDC 1230

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 68 OF 2019

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REASONS FOR VERDICT

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1.The defendant faces a charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210. She pleaded not guilty.

Admitted facts

2.Parties admitted the following facts pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221:-

(1) the defendant has a clear record.

(2) the defendant worked for King Chi Trading Company (“King Chi”) as a money changer from April 2017. On the date of the offence she was the sole money changer at King Chi at Ground Floor, 55 Austin Road, Jordan (“the Shop”).

(3) the three discs, namely two discs, ie Exhibits P1 and P2, contain CCTV images between 1830 hours to 1900 hours on 28 December 2017 downloaded from three cameras and between 0840 and 0905 hours on 29 December 2017 of the Shop; Exhibit P9 containing CCTV images recorded between 1830 hours and 1905 hours on 28 December 2017 of the pavement of Austin Road showing the exterior of the Shop.

(4) the times shown on the CCTV images are substantially the same as ‘Hong Kong time’.

3.Identity of the defendant is not in issue.

4.It is the case of the prosecution that at the close of business on the offence date, shortly before the shop closed at 7 pm, the defendant stole cash of HK$290,000, a note of 100 euro and a note of US$100 from King Chi.  She dishonestly took the same away from the shop with the intent to permanently deprive King Chi of this monies and only returning the same the next morning on the 29th when she was on leave due to a change of mind before the start of business of the shop in the morning.

5.Prosecution rely on the CCTV images from the three discs (Exhibits P1, P2 and P9) evidence from the prosecution witnesses, in particular that of PW4 regarding the oral admission by the defendant upon arrest and her post-record in the record of interview on 30 December 2017 taken by PW4 and the record of interview of the defendant on 15 April 2018 taken by PW5.

6.Defence on the other hand said that the defendant noticed there was a shortfall of $4,000-odd in the company monies at the close of business on 28 December 2017.  She therefore took the subject monies and put them at the back of the photocopier in the shop rear because she intended to recount them the next day to see if there was the missing shortfall monies amount.  She took some $290,000 and one euro $100 banknote and one US$100 banknote and put them at the back of the shop.  The rest of the money she put in the safe.  It was the defence case that the defendant did not know the exact amount of the shortfall in the night of 28 December 2017.  She said she did not take the money away from the shop that evening but just kept them at the back of the photocopier.

7.She said that the next day, when she was on leave, she returned to the shop and took the money from the back of the photocopier.  She then put the money back to the company drawer where money was kept.  She also took from her shorts, in total, $4,190 cash to make up the shortfall from the trading the day before.

8.Defence objected to the admissibility of the two records of interview and the oral confession by the defendant to PW4, if made, at the Cheung Sha Wan office of King Chi. 

9.It is the defence case that the defendant did not make the oral confession.

10.Parties agreed that alternative procedure be adopted for the special issue.

Prosecution Witnesses

PW1 - Yeung Ming Yu

11.PW1 is the money changer working for King Chi Trading Company.  Up till the date of offence, he has worked there for about six years.  He confirms that photo album, Exhibit P11, shows the exterior and interior layout of the shop.

12.He says that on 29 December 2017, he was instructed to work at the shop as the defendant, the money changer working at the shop at the time, was on leave for the day.

13.He said he arrived the shop at around 8.40 am to 8.45 am and found the metal shutter of the shop half open.  He then noticed the defendant, who was supposed to be on leave, inside the shop.

14.Later, he checked the money in the shop and the money amount in the company money drawer in the shop matched with that of the company record (Exhibit P3).

15.He asked the defendant what she was doing and the defendant replied that she had to put back some money because there was a shortfall in the company monies the night before.

16.As PW1 felt suspicious, after the defendant left, he then reported the matter to the company.

17.He confirms that the CCTV footage from Exhibit P2 show he himself entering the shop at 8:52:20 hours on 29 December 2017 and that the defendant leaving the shop at 8:53:19 hours.

18.PW1 says photo 1 of the photo album (Exhibit P11) shows the rear of the shop which is really not used for the exchange business.

19.At the shop rear, there is a black colour photocopier, a monitor and a keyboard on top of the counter which was used to change the price for the exchange of different currency on the screen outside the shop (photo 6).  PW1 says that there is no safe place for properly storing cash in the shop rear.

20.Photo 2 of the Exhibit P12 shows the shop front where there was the computer, the keyboard and mouse as well as the money counting machine and a white colour calculator with a paper roll.

21.PW1 says the company practice is that after the business of the day, the staff will lock all the company monies into the safe and place the key to the safe in the drawer so that anyone coming on duty the next day can get the key of the safe from the drawer, get the cash from the safe, then check the company amount with the record on the computer before the start of the business, and that if there is a shortfall, then one has to report to the company.

22.Again, at the close of business, PW1 says that one has to key in the computer the amount of money the shop has at the time.

23.PW1 says one should key in all the transactions with client and the computer will then update the total amount of different currencies the shop has after the transactions.  At the close of business, one would check if there is in the company drawers the correct amount of cash for each currency as shown on the screen.  Then one would record the same in the bundle by a slip and then keep all monies in the safe and would take a screenshot of the screen and send the screenshot to the WhatsApp group of the company for their information.  This, he says, is the standard procedure.

24.PW1 says the boss, his wife and three managers of the company as well as the defendant are all members of this group.  He says if there is a shortfall, one has to report to the company, Wong Ip Keung, by telephone.  He says if there is a shortfall, the staff will have to bear the loss and compensate to the company.  He says for himself, realistically, if the shortfall is small, he will bear the loss, but if the shortfall is big, then he would have to report.  He admitted that if there is a shortfall and the case is reported, it will reflect poorly on one’s performance.

25.PW1 said at first he did not know the money was in the company drawer when he returned to the shop, so he opened the safe in order to get the money.  Then he later checked the company drawer and realised the money was in the drawers.

26.He agreed in cross-examination that the defendant appeared normal when he spoke to her.  He said when he arrived the shop on 29 December 2017, there were two paper slips on the countertop which referred to the amount of Hong Kong dollars and Renminbi in the shop.  He also says the company practice is to put 100 banknotes in a single bundle.

PW2 - Chan Kam Shing, Eddie

27.PW2 is the operation manager of King Chi.  He has worked there since 2004.  He confirmed what the staff of the shop should do at the end of each day as related to by PW1.

28.He also says that CCTV cameras are installed both within and outside each shop and therefore the management can view these CCTV images both inside the individual shop and also from the office.

29.PW2 says under company regulation, money need to be kept in the safe and staff is not allowed to keep company money anywhere else.  Referring to the CCTV footage at 18:46:53 hours on 28 December 2017, ie near the close of business, when the defendant was seen placing two foreign currency notes and stacks of money on the very right side of the countertop, PW2 says that was not the place where staff was allowed to keep the cash.  He says those actions were not reasonable and he says that there were bundles of $1,000, three bundles of $500, and a bundle on top of about $40,000.  He says in court that the total should be $290,000.

30.PW2 says from the CCTV footage, one could see the defendant taking currency, those Hong Kong dollars with some foreign currency notes to the shop rear.

31.PW2 says he could not tell from the footage the exact amount of foreign currency notes.  Then the defendant, he said, was seen putting the two trays of money from the left company drawer and one tray of money from the right company drawer into the safe under the table top.  He says that from all the CCTV footage in the shop, later that evening the defendant was not seen handling the $290,000 and the foreign currency money again.

32.CCTV footage on 29 December 2017 was shown to PW2 and he said the defendant took money from the shop rear and put them back into the company money drawers, then she took some money from her trouser pocket and some money from the company drawer and put them in the money counting machine, and then she put some money into the company drawer and the rest of the money she put back into her own trouser pocket.

33.PW2 said from what he saw from the CCTV footage, he concluded that the defendant took about HK$300,000 equivalent from the shop night before.  The sum included some US dollars and Euro dollars.

34.He said on 30 December 2017, he met the defendant again with two other managers of King Chi at their Cheung Sha Wan office.  He asked the defendant why she took away the company money and the defendant admitted taking $300,000 from the shop.  She explained that she help her friend.  PW2 said that he told the defendant that was a serious matter, to which the defendant replied that she knew.  PW2 then told her that they could report the case to the police and the defendant asked if there can be any other way to deal with the matter, PW2 told her that they could not decide as he already reported the case to the wife of the boss, Madam Fong.

35.PW2 said that he suggested to the defendant that as the company did not suffer any loss and the defendant was young, that if the defendant would write a letter in mitigation informing the company what happened and what help she need from the company and that she was remorseful, they would persuade the boss not to report the case to the police.

36.He said later the defendant did write that letter of remorse.  He admitted that he also suggested to the defendant that she should resign as there was no longer any trust between them and she could not stay in the job.

37.He says he discussed the case with the boss, who decided, despite his persuasion, to report the case to the police.

38.When police arrived, PW2 told the police officers what happened.  He said he was about 5 metres from the defendant in the same room in the Cheung Sha Wan office then.  The defendant then was accompanied by a police officer.

39.He said all company staff or even candidates interviewing for a job at the company were told, they all well understood, that at the close of business, they should put all monies in the safe of the shop.

40.He agreed that there is no company regulations which prohibit putting the money elsewhere but he says it would be unreasonable to do so.

41.He says the safe is fitted with an alarm connected to a security company and so the safe is the safest place to put the money.  He also said that the alarm is set by the staff of the shop when they left the shop and it is not set by reference to time.

42.PW2 also said that they had previously sent warning letters to the defendant before the offence date as the defendant was occasionally late for work and she was told if she did not mend her ways, she would lose the job.

43.He also said that if there was a shortfall in the money of the shop at the close of business, all staff of the company were told that they should report the matter to the company, and if not, when discovered, the company would issue them a warning letter.

44.He agreed that realistically the staff would try to remedy the mistake without telling the company.  PW2 said, however, from viewing the tape it does not seem that there was a shortfall in the evening of the 28th.

45.PW2 later agreed with the defence in cross-examination that the foreign currency involved were one piece of $100 Euro dollars and one piece of US$100 banknote.  He agrees also that the defendant did not seem to hide her actions by taking the money to the rear of the shop and that if the defendant had not returned the money by the morning of the next day, the matter would be exposed.

46.PW2 denied the defendant had ever told himself or the other prosecution witness that she did not steal the money but there was a shortfall at the close of business and she really come back to make up the shortfall on the 29th.  He said if that was so, he had no reason to insist on the defendant having stolen the company money.

47.In cross-examination, he also agreed that in his statement to the police, he has said that the defendant took $300,000 from the company comprising of a stack of $1,000 and three stacks of $500 and another stack of money from the money counting machine in the sum of $50,000, and that actually the stack of money from the money counting machine was only $40,000.

48.PW2 said on 30 December 2017, at the Cheung Sha Wan office, he asked the defendant if she has taken about $300,000 and the defendant admitted, and that’s why he considered the sum to be $300,000.

49.He said from the stance of the company, since there was no loss, it matters not if the sum was $300,000 or $290,000.  What the company was concerned with was the defendant’s action, not the exact amount.  He was not too clear about the denomination of the banknotes in detail when the statement was taken.

50.He denied ever promising the defendant that once she wrote the letter of remorse, the case would not be reported to police.  He said had the defendant not admitted stealing the $300,000, they would not have asked her to make the letter of remorse and seek her permission for the letter of remorse to be circulated to other staff for training purpose.  He admitted that he did tell the defendant that the matter was a theft matter and is a serious matter.  He said in fact the three managers of the company wanted to help the defendant as she was young and the company has suffered no loss.

51.He further said in cross-examination that in fact the defendant did see what he did to help her but the boss insisted making the report.

52.He agreed also that they could have reported the case to the police without inviting the defendant to the office to explain.

53.He also agrees that 7 days’ pay was deducted from the salary of the defendant in the beginning and later the company repaid the sum when queried by the Labour Department.  He said this was reasonable because, after the case was reported to the police, the defendant was not considered to be resigning of her own free choice.

54.PW2 admitted that prior to and during the office interview, the defendant was probably not told that she could elect not to take part in the interview or that she could choose not to reply to questions asked.  PW2 said the defendant is expected to attend the interview and answer questions asked of her.

55.PW2 said after the defendant wrote the letter of remorse, the four of them signed the letter, the account people went to get the salary slip and PW2 said that he remember saying to the defendant not to do such thing again in future as not everyone would treat her the same way.

56.In cross-examination, PW2 said he could not remember if the three managers left the room where the defendant was when they told the police what happened.

57.In re-examination, he said that had the defendant told him that there was a shortfall the night before and she was back there merely to make up the shortfall on the 29th, he would have asked her what was the amount of the shortfall and why she had failed to inform Mr Wong Ip Keung. He also said if there is a shortfall and the staff informed the management and make good the shortfall, the company would not sack the staff unless the shortfall is very big.

58.He said after viewing the CCTV footages on the 28th and 29th, he would not accept such an explanation from the defendant as he found what she did was unreasonable, ie not putting a substantial amount of money in the safe but took it elsewhere and replacing money the next morning when she was supposed to be off duty.  PW2 said the staff of the shop can also freely view the CCTV images taken of the shop.

PW3 - Wong Ip Keung

59.PW3 used to be a sergeant in the police force before year 1989.  He resigned of his own accord to help his wife running a business and therefore had early retirement.

60.He said on 30 December 2017, he waited together with a substitute worker for the defendant to go to work outside the shop.  When he saw the defendant, he told the defendant because of what she did the day which caused suspicion on the part of the company, that was why he would take her to the office to see the boss for the boss to decide what is to be done.  He told her that she was seen on 28 December 2017 taking some money from the shop and left.  PW3 said the defendant did not respond.

61.PW3 said before they went to the Cheung Sha Wan office, the substitute worker checked the balances of money in the shop first. They left the shop at shortly after 10 am and they walked to the MTR station taking the MTR to the Cheung Sha Wan office.  PW3 said he did ask why the defendant would do that but the defendant did not answer.  They arrived the office at around 11 am.  The three managers then discussed amongst themselves while the defendant was at the same room, some 7 to 8 feet away.  After discussion, they said to the defendant that if they made a report to the police she would be relatively in bigger trouble and they told the defendant to tell them the truth and for her to know her mistake and for her to write the letter of remorse so that they would talk to the boss and mitigate for her.

62.Later, boss returned and despite their words for the defendant, boss decided to make the report to police.  He said when police arrived, he was not in the same room as the defendant.

63.He said none of them did threaten the defendant and that the defendant had worked for around a year by the time of the offence in King Chi and that her performance was average.

64.PW3 said it was not normal for defendant not to put the money in the safe as all the staff know that that was the guideline and the defendant had worked in King Chi for so long and had been doing the same thing every night.

65.PW3 admitted that the guideline was not in writing but was orally conveyed and he said all staff, even before they started working for the company knew that they should count carefully money in the drawer and match it with the amount in the computer at the end of the close of business of a day, one have to check the money in the company is the same as the amount in the computer and then lock the money in the safe, close all the doors and switch on the alarm before they left the shop.

66.He said the defendant was seen taking money from her person and putting it in the company money drawer on the 29th morning when she was supposed to be on leave and therefore, although they did not see her taking the money which she did not put in the safe away from the shop the night before, they felt suspicious.

67.PW3 agreed that the defendant took four pieces of 1,000 and two pieces of $100 banknotes from her person and put into the company money but she took another $10 from the company money, ie putting $4,190 into the company money from her person.

68.PW3 agreed that the defendant had finished putting the money into the company drawers 8½ minutes before the start of business of the shop at 9 am and the defendant left the shop at 8:53:19 am.

69.PW3 denied that he only asked the defendant why she stole the money on the MTR and not before.  He also denied the defendant did tell him that there was a shortfall in the company money the night before and that she returned to make good the shortfall.

70.PW3 said in fact the defendant did not reply him when he asked her the question in the shop and they did not have any conversation on the MTR journey.

71.He said back in the office, he did ask the defendant to tell the truth and told the defendant the matter was serious and that if a report was made to the police, then there is a chance that she goes to jail.  PW3 denied that he told the defendant that she would go to jail for 10 years.  He said he himself did not know of the length of jail sentence.  He also denied telling the defendant he was an ex-police officer during the MTR journey.  The reason he said was that everyone in the shop already knew that, it is not a secret.

72.PW3 also said that he did not see the defendant writing the letter of remorse.  According to his knowledge, it took her about half an hour to write the same.  He admitted that the defendant at first asked how and what to write, he then tell her that she should tell the boss who she was and why she did that.  He denied giving the defendant a sample to copy and he also said that he knew the defendant later did, through the Labour Department, claim from the company the seven days’ pay and also the money representing her holiday entitlement.  He said the defendant never explained why she did not put all the money in the safe, nor did she say why she did it.

73.PW3 says according to the company policy, if there is extra money or a shortfall exceeding $30, then the office need to be informed and it is not unusual for there to be discrepancy because the company records carries two digits after the decimal point but the shop would only give money to the customer up to only one digit after the decimal point.  He says even if there was excess, no employee would be allowed to take that money.  He says all staff knows that they could not take any company money and that this was made known to them even at job interview.

PW4 - PC22871

74.PW4 joined the police force in May 2016.  He was attached to Uniform Branch, First Squad of the Cheung Sha Wan Police Station.

75.On 30 December 2017, he said after he arrived the Cheung Sha Wan office of King Chi, he made enquiries from PW2.  Later, he arrested the defendant for theft and cautioned her.  He said the defendant said to him under caution that, “Ah Sir, I only stole out of momentary greed. Afterwards, I have given it clear thought and it is wrong to steal, that is why put the money in the company.  Give me a chance.”  He said he also make a record of the incident in his notebook shortly afterwards when his memory was still fresh.

76.He said back at the police station, later he put down what happened also in Pol 857 at around 1 pm.  He also made a report to the duty officer and after the defendant was body searched, he issued her the Pol 153 at 1300 hours explaining to her rights, going through items in the Pol 153 generally leaving the items under each heading for her to read herself, telling her in general the rights and the defendant also read the same and indicated she was clear and understood the contents of Pol 153.  Then they both signed on the Pol 153.  He also gave the defendant a copy of the statement at 1402 hours (Exhibit P8).

77.Then PW4 start writing the record of interview (Pol 857).  He said he wrote down what had happened earlier, he show it to the defendant, read over the same to her, defendant agreed with the contents and he handed to the defendant a declaration saying that was a voluntary statement and another declaration saying contents of the same was true and correct (Exhibit PP5, translation PP5A).

78.After that, PW4 said he made copy of the Pol 153 and the Pol 857 and at 1402 hours he gave the defendant copy of these documents.  PW4 said at no stage did he or anyone in his presence threaten or induce the defendant to attend the interview and give any answer.

79.He said he remember meeting Mr Chan at King Chi who told him what happened that the defendant stole $300,000 from the shop.  He was also shown the CCTV footage.  He said regarding the time of entry in the police notebook (MFI-1), he was taught in police training school that they should be made as soon as possible.  He could not remember exactly when these entries were made to his notebook.  He said for the entry at 1415 hours and 1550 hours on page 93 and page 98 of his notebook, that should be the exact time of entry in his notebook because they refer to the time that he made the post-record of event happenings and he will always record the same real time. He said he started writing his own witness statement (MFI-2) at 1555 hours and finished writing at 1700 hours on 30 December 2017.  He said now he did not understand why he had written this “1700 hours” on Pol 153 because that should actually be the time he finished writing the statement.

80.PW4 disagreed that the police notebook entry was made only in the police station.  He said that he made those entries as soon as possible after the happenings but he was unable to remember the exact location where each of these entries were made.  He said before they went to see the duty officer, these entries needed to be made and later he agreed in cross-examination that there was actually no relationship between seeing the duty officer and the notebook entry.  He said he did not ask the defendant to sign in his notebook beside her admission under caution at 1215 hours was because back at the police station that would be recorded in the form of Pol 857 which would be shown to the defendant for her to formally sign.

81.PW4 admitted that if he had asked the defendant to sign in his notebook against the entry regarding her oral admission there and then, that would be a better practice.  He said he did not know why he had failed to do so then.  He denied the defendant had not made such an admission at the Cheung Sha Wan office.

82.PW4 was asked if he had explained the contents of Pol 153 to the defendant and if so, why he had failed to mention this in his police notebook and why he also deleted the reference to “someone having explained it to the defendant” in the Pol 153.  He said he had not written it down did not mean he did not explain.  He denied not having explained the Pol 153 to the defendant.

83.When cross-examined, PW4 said since the defendant was aware of her rights, if she had any requests she would have voiced it out.  He said according to his memory the defendant was not handcuffed upon arrest and he denied not having told the defendant the reason for her arrest or not cautioned her, or that the defendant had made no admission to him.

84.PW4 also denied Pol 153 was only shown to the defendant after he finished writing the record of interview (Exhibit PP5) or the defendant was not allowed to read PP5 before she signed.  He reiterated in re‑examination that Exhibit PP5 was the post-record and the defendant clearly understood the reasons for her arrest and he recorded what she said under caution.  He said he read over the same to her.  The defendant herself also read it and if there was any problem or if she needed any amendments to the same, she would have raised it with him and that would be recorded as well.

PW5 - PC 10525

85.He joined the police force since May 2009.

86.On the date of offence, he was in Yau Tsim District, Investigation Team 7. 

87.He said the defendant was released on bail on 30 December 2017.  He had taken statement from PW2, visited the site and received the CCTV footages of the incident.

88.On 15 April 2018, he told the defendant that he needed to have an interview with her to clarify certain things. 

89.Before the record of interview with the defendant on 15 April 2018, he gave the defendant Pol 153 to remind her of her rights.  PW5 said that the defendant did read it and she did not ask to exercise any right.  She signed on this Pol 153 (Exhibit PP13 and English translation PP13A) indicating that she had read and understood the form and her rights.

90.The record of interview took 1 hour and 20 minutes starting from 1351 hours to 1510 hours (Exhibit PP6, English translation PP6A). 

91.He cautioned the defendant and asked if the defendant would like to write herself or would like him to write for her.  As the defendant chose that he wrote for her, he asked her to copy the declaration.  The defendant also signed.  He then proceeded to ask the defendant questions and recorded all questions and answer from the defendant. He said the defendant signed against each answer when made and after her answer to question 10, PW5 then read over the entire statement to her and advised her of her rights to make amendments and additions.

92.He allowed the defendant to hold it and read it, he gave her two declarations for her to copy and sign as the defendant had indicated no problem after reading the statement.

93.PW5 said that at no time did he induce, threaten or pressurise the defendant to take part in the record of interview (Exhibit PP6, English translation PP6A) and that the same is an accurate record of questions and answers given by the defendant.

94.PW5 said after the record of interview, bail of the defendant was again extended.  He denied the defendant not understanding the caution in the record of interview as she failed to directly say she understood.  PW5 said, as the defendant asked that PW5 write the statement for her, he was of the view that she fully understood the caution, otherwise she would raise it with him.

95.When cross-examined, PW5 said that the amount of 300,000 in the record of interview was provided by the defendant in her answer to questions in the record of interview.  He denied the same being provided by him and that he copied it from the written statement of PW2.

96.PW5 said when he had the record of interview with the defendant, the whole case file was not with him.  He had the witness statement of the arresting officer (PW4), the sheets for the records of interview and some declarations.

97.PW5 denied the defendant had told him that she did not take the money but there was a shortfall and was there to refill the shortfall.

98.He also denied that he chatted with the defendant when he was writing during the record of interview.  PW5 denied not formally cautioning the defendant before the record of interview.  He also denied not allowing the defendant to read the record of interview, nor asking the defendant to write declarations without explanation.

99.He also denied suggesting to the defendant to say that she committed the offence because of financial difficulty or that the rucksack she used to carry the money was thrown away as it was too old.

100.Defence counsel says they have no halfway submission on the special issue and the court ruled there is a case to answer on the special issue.  Defence counsel informed the court that the defendant has been explained of her rights and she elected to give evidence in the special issue.

Defendant (special issue)

101.The defendant says she is aged 28 and she lives with her parents and younger brother.  Her father runs a grocery store and the mother is a housewife.  She is single and received education up to Form 5.

102.She has a clear record.

103.The defendant says since she left school, she has been working with various foreign exchange shops until she worked in King Chi in April 2017.

104.She says at the close of business on 28 December 2017, she noticed there was a discrepancy, slightly over $4,000, in the monies in the shop compared with that in the computer record.  She therefore took the HK$290,000 cash, one US dollar banknote and one euro $100 banknote to the shop rear.  She said she did not take them away from the shop that evening and the next morning she returned to the shop and put the same monies previously placed at the back of the photocopier to the front, put them back into the drawers and did the calculation again to find out the shortfall amount was, which was later found to be $4,190.

105.She said on 30 December 2017, around 10 minutes to 15 minutes after 9 am, when she was in the shop, Wong Ip Keung came with a female colleague and asked that she would not touch the company money. The female colleague then counted the company money.  Wong said he would take defendant back to Cheung Sha Wan office.  Wong did ask the defendant why she did that and the defendant said she did not answer.

106.The defendant said when they were on board of the train at Jordan to Cheung Sha Wan Station, Wong did again ask her why she stole the money from the shop and said that was theft and the defendant would go to jail for 10 years maximum because that involves a breach of trust. 

107.The defendant said that she then told Wong that she did not steal the money but there was a shortfall the night before and she was there to refill the shortfall.  The defendant said Wong did not appear to believe her.

108.Later, the defendant said they arrived at the Cheung Sha Wan office and met the two other managers inside the room of the boss.  The defendant said it seemed Chan (PW2), went over to her and said he had watched the CCTV footage that the defendant had taken the company money. The defendant said Wong Kwong Sang was sitting with her on the sofa and Chan was sitting opposite her.  She did not notice where Wong Ip Keung was.

109.The defendant said she told Chan that she did not steal the money because there was a shortfall in the evening of the 28^th and then she returned to the shop on the 29^th to make good the shortfall.  The defendant said she felt the three managers looked serious.  She herself felt hazy and the defendant said Chan said to her that he had consulted lady boss that since the company suffered no loss, all that is required of her is to write the letter of remorse, let go all company benefits and she would be able to leave.  The defendant said since they did not trust her, there was no point staying in the company.  She said that later Wong Ip Keung gave her a sample to copy and she did copy, then all three managers and she signed.

110.The defendant said on 28 and 29 December 2017, she did not know which part of the shop was not covered by the CCTV camera installed.

111.The defendant said when she wrote the letter of remorse, she knew the sum of $300,000 was mentioned.  She put the sum there because the three managers categorically said that $300,000 was involved.  She said in fact at the time she knew that the figure should be 290,000 plus the two foreign currency notes.

112.She said although she wrote the letter, she never agreed to resign and to abandon all benefits.  She was also not remorseful or felt shameful to remain staying in King Chi, nor was she willing to pay the seven days’ pay in lieu of notice.

113.The defendant says all contents of the letter of remorse was copied from the sample given to her.

114.As for the part regarding circulating letter to other colleagues for training purpose, she said she could not remember whose idea it was.  However, she says also the said paragraph was already present in the sample.

115.She said she expected that the company would not report to the police if she wrote the letter.  Later, the company still made a report to the police and the defendant said she then felt afraid and was thinking why would they ask her to write the letter of remorse.

116.She said later the uniformed police arrived when she was still in the boss’s room, one police officer stood beside her and PW4 talked to Chan outside the room.  Later, PW4 returned and got her identity card and PW4 also asked the police officer beside the defendant if the defendant did say anything.  The defendant said PW4 had also said to her, “Whatever it is, say something that would help you in mitigation in future.”  Then the defendant said she told PW4 she was just there to make up the shortfall and that she did not steal.  Then PW4 arrested her for theft and put handcuffs on her. Defendant said PW4 did not caution her and later she was brought back to the Cheung Sha Wan Police Station.

117.The defendant said back at police station, after she was searched, she was taken to a room waiting for PW4.

118.Later, PW4 arrived and he start writing his statement (Exhibit PP5).  The defendant said after PW4 finished writing, he then asked the defendant to copy from a sample the last two paragraphs in the document and he indicated positions where she was to sign all in one go.  She said she first saw Pol 153 (PP8) before taking of the statement, but she said that PW4 handed it to her and asked her to sign, and after she signed, he just took it back.  She said that she was only able to see the contents of Pol 153 after the statement taking and when both the statement and Pol 153 was copied.  PW4 then gave her copies of the same.  The defendant said she did not pay attention to anything written on Pol 153 when she signed on it.  Later she said that, on her recollection, the time and the other deletions in the form was not there when she signed.  She said she was only told by PW4 that PP5 was a post-record of the course of arrest in the Cheung Sha Wan office.  She said she does not know the contents of the PP5 until two/three days after.  And as for PP8, she said she only know the contents of PP8 after she finally engaged a lawyer at the end of year 2018.

119.She denied having made the oral admission in Cheung Sha Wan office to PW4 as recorded in PP5.  She said no one had explained PP5 or PP8 to her.  She said she wrote the ending declaration even though she was not aware of the contents of the statement and she did not agree to the voluntariness of PP5.

120.She said she was very afraid as she has never been arrested before.  She admitted that she did not think if the letter of remorse would have any bearing on the police investigation of the case.

121.As for the record of interview dated 15 April 2018, the defendant said that PW5 rang her to fix an appointment before that date to go to the Tsim Sha Tsui Police Station.  She said that she met PW5 and was taken to a room on 15 April 2018.  PW5 asked her to turn over her phone and roughly searched her rucksack before he took out some blank papers and write.  The defendant said she had a glance of the documents with PW5 at the time which included the letter of remorse.  Then PW5 asked if she should write or he should write on her behalf, then she told PW5, “Ah Sir, you write for me.”  Then the defendant said PW5 asked questions about the defendant’s family.  He also asked if the defendant had difficulty in finance, when the defendant said “No”, PW5 did not write it down and he said that it would be better if the defendant said she had financial difficulty, then the defendant said, “Yes”.

122.The defendant said when she was arrested on the 30th, she had nearly $25,000 on her.

123.The defendant said the first time she was aware of the contents of the record of interview (PP6) was after she engaged her lawyer.

124.She also said that PW5 had not asked her any of the questions in PP6 except question 5 and none of the answers were provided to her except answer 5, which was suggested to her by PW5.

125.She also said Pol 153 was only shown to her after PP6 was finished.  She was just asked to sign and at the time of signing, the handwriting in the left section and right section of the form was already completed in this Pol 153.

126.The defendant said although Pol 153 listed out the time of issue which indicated that she was issued the form before this interview, the time was not right.

127.She said up till 15 April 2018, she had not told her parents about her arrest, nor did she seek legal advice, nor seek advice from anyone.

128.She explained when she was in Yau Ma Tei Police Station, there was a uniformed police officer who told her not to worry too much about the case as she would not necessarily be prosecuted as there was no loss to the company.  She believed him that there was certain degree of chance that she would not be prosecuted.

129.She also did not tell the case to anyone else because she thought the letter of remorse was disadvantageous to her as she admitted stealing money.

130.The defendant said contents of the letter of remorse, record of interview on 30 December 2017 and 15 April 2018 and the last record of interview in July 2018 were all incorrect though she had signed all of them.  She said her legal representative had not made any complaint regarding the incorrectness of the contents or voluntariness of these interviews.

131.The defendant said she lied when she wrote the letter of remorse, ie that she admitted taking the $300,000 from the company or that she was remorseful.

132.In cross-examination, the defendant said she wrote the letter of remorse because the company people refused to let her leave after questioning her for two hours and still refused to let her go.

133.At first the defendant said her first court appearance in connection with this case was in Sha Tin Magistracy.  Later, when she was corrected by prosecuting counsel, she agreed in fact that she appeared in Kowloon City Magistracy. 

134.She denied she know her rights before PP5 or PP6 commenced.  When the defendant was asked that in fact she knew what she was writing in PP5, the defendant replied, “At that time I copied what he asked me to copy.”  When the question was put to her again, she agreed that she knew the meaning of what she was writing.  The defendant said she did what she was told during the interview because she was afraid.  Nevertheless, she agreed that PW4 never threatened or induced her.

135.The defendant agreed that after she was released on bail on 30 December 2017, she was given copy of PP8 and PP5.  She had the chance to read these documents and learn her rights.  She also agreed between the date PW5 made an appointment to meet her on 15 April 2018 and 15 April 2018, there was sometimes in between when she could seek legal advice or advice from friends and that she knew PW5 asked her to go to the police station in connection with the theft of $300,000 case but the defendant says that she thought possibly the police would tell her that she would not be prosecuted.

136.When the defendant was further cross-examined that by the time she was ordered to sit in a room in the police station on 15 April 2018, she should know she will be asked questions.  The defendant replied that the police did not tell her yet but just asked her to sit there.  When she was asked she knew at that time she could have a lawyer present, the defendant said no.  She said on the one hand she had read the Pol 153 (PP8) given to her on 30 December 2017, she said still she was not aware of her rights.  When the defendant was cross-examined as to why she would be willing to sign PP6 when she was not aware of its contents as in the case of PP5 with all the inaccurate contents, she replied that she thought PW5 was helping her at that time.

137.In the re-examination on the special issue, when the defendant was asked why she did not correct the figure of $300,000, the defendant said she had told PW5 that she did not steal and further that the sum was not $300,000 but they did not pay heed to her.  They said it was almost that figure, so just put down $300,000.

138.This is the case for the defence on the special issue.

139.The court later ruled that the oral confession made by the defendant, if any, as well as the record of interview (PP5 and PP6) were all proved by the prosecution beyond reasonable doubt and being made voluntarily by the defendant. there are no good reasons to justify the court to exercise discretion to exclude them.  Accordingly, they have been since admitted as P5, P6 and the two Pol 153 as P8 and P13 as well as the English translation as P5A, P6A, P8A and P13A respectively.

140.This is the case for the prosecution.

141.There was no halfway submission and this court ruled that there was a case to answer by the defendant on the charge faced.

142.Defence counsel submitted the defendant was explained of her rights and she elected to give evidence on the general issue.

Defendant (general issue)

143.The defendant adopted her evidence on the special issue as evidence on the general issue.

144.The defendant said as there was a shortfall in the company before the close of business on 28 December 2017, and she did not want her colleague to know there was a shortfall, so she set aside the $290,000 and the two foreign currency notes.  She was thinking of going back the next day, her leave day and do the calculation again. 

145.She admitted the shortfall was only slightly over $4,000.

146.When she was asked what time she intended to come back to make good the sum, the defendant replied, “the normal working time”.

147.The defendant said she put the said sum behind the black photocopier in the shop rear, between the photocopier and the wall. She said she did not take the money outside the shop.

148.She said in the morning of the 29th, after she took out the money from the safe at the shop rear and put them back in the company drawer, she again did the calculation in order that money in the company tally with that shown in the computer.

149.She later took $4,190 from her own money to make up the shortfall.

150.The defendant said on the arrival of PW1, she told him that she was back to make up the shortfall the night before.  The defendant explained as she did not have any sufficient money on her the night before, she did not make good the shortfall in the evening of the 28th.

151.She said after she left the employment of King Chi, she claimed the company for the return of seven days’ leave in lieu of notice and the pay for the annual leave.  The seven days’ pay in lieu of notice amounted to $3,353 and King Chi repaid her because she did not resign voluntarily.

152.When the defendant was asked why she did not work out the exact shortfall in the evening of the 28^th, she said that she was supposed to work between 9 am and 7 pm, therefore she left at 7 pm.

153.She explained the reason she put that sum behind the photocopier, separate from the dollars in the safe, was that she thought there was a chance that she could find the missing $4,000-odd there.  She agreed that she did not do the counting of these monies she put at the back of the photocopier the next morning because PW1 already arrived the shop and so she had to hand the shop over to him.  She said further, PW1 would tell her if there was a surplus in the company money.

154.When the defendant was asked why she put the $290,000 out of sight of the CCTV camera, the defendant replied she did not know then that place would be out of sight of the CCTV camera in the shop.  When the defendant was asked why she did not also put the $290,000 and the foreign currency in the safe of the shop, the defendant said she was worried that Yeung would arrive the shop earlier than her.  She also said that she could not put the money in her rucksack because there was not enough space.

155.When the defendant was asked why she put the two foreign currency notes to the shop rear, she said those were from the last transaction before the close of business and she did not want to put these two notes in the safe to confuse herself.  She therefore put them together with HK$290,000.

156.The defendant said she put the two foreign currency notes back to the company money the next day.  She agreed that certain action could not be seen on the CCTV footage.  She said she did put them back because at the end the company did not suffer any loss.  The company money matches with that on the company record.

157.Later, she says that she was not sure because it happened some time ago and shortly later she said she was sure to have returned the two foreign currency notes that they are actually sandwiched between the other bundles of Hong Kong dollar notes.

158.When the defendant was cross-examined as to how she could get to the shop rear when her legs were caught in the CCTV footage just in the doorway, the defendant said she could.  She also denied it was unfortunate that before she finished what she intended to do, PW1 returned to the shop.

159.This is the case for the defendant.

Discussion

160.The defendant is a person of clear record and due consideration regarding her propensity to commit crime and credibility has been given.

161.This court has previously ruled on the special issue.

162.The defence has lodged their written grounds of objection dated 22 October 2019 and further revised on 5 June 2020 and 8 June 2020.

163.As for the alleged oral admission to PW4, the defence case is that she never made the admission and that the defendant was not properly arrested or properly cautioned at the Cheung Sha Wan office which constituted a breach of the rules and further that the mind of the defendant was still under the effect of the admission in the letter of remorse both at the time she was with PW4 in the Cheung Sha Wan office and at the time of the record of interview (Exhibit P5).

164.When the defendant was asked why she wrote the letter of remorse, she explained that she was not allowed to leave the office even after two hours’ questioning and the company promised not to report the case to the police, she thought therefore writing the letter of remorse, even though the contents was not true, ie she stole the money or she was deeply remorseful or that she was willing to pay the seven days’ leave in lieu of notice or forego the company benefits, and she could resign.

165.According to the undisputed evidence, however, the defendant and PW2 only arrived at the Cheung Sha Wan office at nearly 11 am and PW4 and the other police officers arrived at 11:41 am.  The alleged two hours’ questioning did not exist.  These two hours’ questioning and not allowed to leave scenario was never put to any of the prosecution witnesses.

166.In fact, according to PW3, the defendant took about 30 minutes to write the letter of remorse and that after the letter of remorse was written, she had read it over to the boss and there is subsequent discussion between the boss and the managers before the case was reported to the police.  It would mean therefore that the defendant had started writing the letter of remorse shortly after she arrived the Cheung Sha Wan office.  This piece of her evidence is simply untrue.

167.Further, the alleged promise of the company was contrary to the contents of the handwritten letter of remorse.  The defendant said all along she told PW2, PW3 and PW4 that she was there to make up the shortfall on the 29^th, she never admitted stealing company money, but they did not believe her, nor did they put such an explanation on record. This was denied by a lot of them.  In fact, according to PW2 and PW3, all along they tried to help the defendant and persuaded the boss not to report the case to the police after the defendant has written the letter of remorse.

168.In cross-examination, PW2 did say to defence counsel that he could ask the defendant to verify this.  PW2 says that they never promised the defendant that the case would not be reported to the police once she wrote the letter of remorse, they just say that they would persuade the boss and the final decision lies with the boss.

169.Evidence of PW2 and PW3 was totally unshaken under the thorough cross-examination by defence counsel.  The court finds them truthful and reliable witnesses and give full weight to their evidence. Although PW2 was criticised for complaining that the defendant stole $300,000 from the company and that in court he says only about only about $300,000, this is supported by the witness statement of PW4; the amount was described there as the complainant having told PW4 the money involved was about $300,000.

170.Further, if one watch the CCTV footage and coupled with the company policy of putting 100 banknotes in one single bundle, it is not unreasonable that a stack of money from the counting machine was taken to be $50,000 and not $40,000.  Defence has agreed the other monies taken by the defendant was $250,000.  The one who was best to know the total amount of money not put in the safe would be the defendant herself.  Others could only rely on the CCTV footage.  Again, it was only after viewing the CCTV footage for a number of times that one would be able to make out more accurately the approximate amount of money taken or not put in the safe.

171.Like the bundle of money from the counting machine taken by the defendant, it would be difficult for anyone to ascertain from the CCTV footage whether there are in fact 80 pieces of $500 or just a hundred pieces of $500 banknotes in that stack.

172.Further, according to PW2, their concern was the acts of the defendant and as the company suffered no loss, whether the amount was $300,000 or $290,000 plus does not really matter to the company.

173.On viewing the CCTV footages for a number of times, one would be able to see there is piece or pieces of US banknotes or piece or pieces of euro banknotes also being taken by the defendant.

174.When the defendant was asked what her mental state was in the Cheung Sha Wan office, she just said she felt hazy and she became afraid when they decided to report to the police.

175.She admitted that the only threat from the company was that the case would be reported to the police, but if she was there only to refill the shortfall and if she really think at the time that her putting of the money to the back of the photocopier was caught by the CCTV footage or the CCTV cameras in the shop, why would she be afraid that the case be reported to police?

176.When PW4 and the other police officers arrived at the office, he said after enquiries, he arrested the defendant for theft, cautioned her and she made the oral confession.

177.This court noted that the defence counsel rightly criticised PW4 for not following the good practices taught at training school, ie the witness statement of PW3 stated that the time of writing the statement is 1700 hours but in fact that was the finishing time for writing the statement, and that he should ask the defendant to sign against the entry he made in his notebook regarding her alleged oral confession which he did not do.  PW4 of course explained that there was a subsequent Pol 857 shortly afterwards and later he also admitted that that would be a better practice.

178.PW4 was also asked the time of entry to his police notebook to which he replied he could not really remember the time and place that he made those entries but that he said that would be shortly afterwards when his memory was still fresh.  He said that for the post-record items, the entries were made in real time.  This, in my view, is a reasonable explanation.

179.This court of course also noted that on a number of occasions where PW4 was being asked to refresh his memory by reading a statement, he refused and said there was no need.  When he was asked why he had not recorded certain things, he retorted and said the fact that he failed to record does not mean that he did not do it.  This attitude is not commendable.

180.That being said, had PW4 been practising as the defendant said, ie asking her to sign at a few places in the Pol 153 and the record of interview, ie Exhibit P8 and P6, without explanation and without input from her apart from just asking her to copy the declarations, PW4 could easily also ask the defendant to sign in the police notebook against the admission entry.  He did not do so.  This to a certain extent shows that PW4 is not being dishonest although he has not been adopting the best practices.

181.There is also no allegation of inducement, threat or violence exerted on the defendant at the Cheung Sha Wan office by PW4.

182.The defence is saying that the defendant was still under the influence of the admission in the letter of remorse at the time when PW4 arrived.  However, when being questioned, she admitted that she did not think that there was effect of the letter of remorse in the way that the police investigated the matter.  The defendant said she was misled to write the letter of remorse and she was promised that the case would not be reported.  So obviously when the police arrived, she knew that she has been misled and that the company should not be trusted.  There was therefore no longer any other reason for her to stick to a story which is untrue or to admit to something which she did not do.

183.In fact, she should know that it is precisely an opportunity for her to clear the matter.  The defendant said in fact she told PW4 that she did not steal this was not agreed to by PW4.  The defence did say that the defendant was still under the influence of the letter of remorse when PW4 arrived.  This could not be true.

184.In fact, when the defendant was giving evidence, she denied that on her mind, the letter of remorse had an effect on the police investigation.

185.It was said that PW4 was unable to tell what happened when he arrived King Chi on 30 December 2017.  That was not a fair comment.  Although PW4 was unable to tell the details of where in the office was the defendant at the time, he was able in gist to tell what he did in the office.  It is true that he was unsure if he did make enquiries with the defendant, but he did declare arrest on the defendant and cautioned her as well.  As remembering what the defendant said under caution, these are all recorded in his notebook and the witness statement and Exhibit P5 on the same day.

186.In fact this court notes that his notebook did not record him making enquiries with the defendant.  It was also the defendant’s evidence that he did not make enquiries with her apart from making one utterance.

187.PW4 was asked what exactly did he say to the defendant when he arrested the defendant and he said in general terms the year, month and date and the offence that the defendant was arrested.  This court finds that this suffices.  So long as the proper arrest of the defendant was being made followed by caution, one must not forget that the incident happening about two and a half years ago and it would be difficult for one to expect a witness to tell in verbatim what exactly did he say to the other person.

188.PW4 was also frank in admitting what he could not remember.  He was not a particularly smart person when he refused to refresh his memory even when given a choice.

189.Defence counsel also criticised PW4 for the time discrepancy in his notebook of going off duty at 1700 hours when he was still handing over exhibits at 1706 hours.

190.In relation to the Exhibit P5, PW4 was criticised for saying that on the one hand he explained to the defendant briefly each item under each heading in Pol 153 and yet he has admitted crossing out the “explained to by others” about the signature margin, throwing doubt therefore on whether or not he did explain the Pol 153 to the defendant or it was just that the defendant has read it herself.

191.Whilst his evidence and what appear in the Pol 153 (Exhibit P8) does not seem to accord well, but there is a lapse of 11 minutes between the time of issue and the time of the copy was being received by the defendant.

192.The defendant’s evidence also did not support that she was affected by her admission in the letter of remorse in the interview.  This court finds that Pol 153 was issued to the defendant and PW4 had briefly explained the same to the defendant and the defendant had read the same and understood the contents.  The time and signatures on the Pol 153 correctly reflect the time of issuance and copy given to the defendant and circumstances of issue.

193.This court finds that the defendant was fully aware of her rights when the record of interview commenced and that the record of interview truly and accurately reflect the happenings at the Cheung Sha Wan office and during the interview, and the defendant took part in the interview voluntarily.

194.The fact that the PW4 did not ask the defendant if she wish to exercise any right was not the best practice, but it did not affect the voluntariness of the statement.  This court therefore accepted his evidence that if the defendant did make the oral admission under caution after PW4 arrested her for theft and cautioned her that the same was made by the defendant voluntarily out of her own free will.

195.This court also does not find the defendant a truthful witness and reject her evidence regarding what she said to this PW2, PW3, PW4 about the shortfall and how Pol 153 (Exhibit P8) was issued to her and how the record of interview (Exhibit P5) was conducted.  This court also finds that PW4 never said to the defendant in the Cheung Sha Wan office, “Say something that will help you will in mitigation in future”.  In fact, this was never put to PW4 in cross-examination.

196.Coming to Exhibits P6 and P13.  PW5 was cross-examined in length by defence counsel as to whether he had the case file with him when he conducted the record of interview (Exhibit P6) with the defendant. 

197.Defence was trying to say that it was PW5 who supplied the answer to question 8, ie how the $300,000 was made up of by copying it from the witness statement of PW2, and that the answer was not actually provided by the defendant.

198.As said earlier, from the CCTV footage, one could not see the number of banknotes in the stack of money that the defendant took from the money counting machine, whether in fact it was $50,000 or $40,000. It is not disputed the company practice was to put a hundred banknotes in a bundle and so if the stack consists of the right number, that would be $50,000, otherwise that can be $40,000.

199.It was during trial that the defendant says that the sum should be $40,000, ie the money from the money counting machine, which would therefore make up the money not being put in the safe as totalling $290,000 plus two foreign currency notes.  The prosecution could not be in a position to dispute this evidence because the defendant is the only one who know best.

200.As said earlier, one is unable to tell the number of banknotes in the money from the money counting machine from the CCTV footage.  The prosecution has therefore accordingly amended the charge to $290,000 plus the two foreign currency notes instead of the $300,000.  But what was the real amount that the defendant actually failed to put in the safe and took in the evening of the 28^th?  Only the defendant knew the truth.  Was she telling the truth now, ie $290,000 plus the two foreign currency notes, or was the real amount $300,000 and two foreign currency notes as she acknowledged throughout the period of investigation.

201.It is only prudent, on the evidence before this court, to conclude that the money not being put in the safe was no less than $290,000 plus the two foreign currency notes.  It is a fact that the defendant never on record made any attempt to correct the sum of $300,000 to $290,000 since the allegation against her on the 30 December 2017 when she has ample opportunity to do so.  The court therefore does not find this submission useful.

202.At all times prior to the record of interview (Exhibit P6) the defendant adopted or acknowledged the figure of $300,000.  For example, in the letter of remorse, record of interview (Exhibit P5).  It was not therefore surprising that she gave this answer herself to question 8.

203.In fact the sum of $300,000 appeared in questions 3 and 4 in the same record of interview and the earlier document. This argument does not support PW5 copying the answer to question 8 from PW2’s witness statement.

204.Defence counsel submitted that on the day of arrest, defendant had nearly $25,000 on her and therefore it was a lie on the part of the PW5 to say that she has financial difficulty.  For obvious reasons, this submission lacks logic.  In fact, it was defence evidence that though the shortfall was only slightly $4,000, she did not have the money on her in the evening of the 28^th.

205.As for the defendant saying that PW5 insisted that she said she had financial difficulty, there is no purpose served for PW5 to do so.  The defendant already in the first record of interview (Exhibit P5) said she stole the money out of momentary greed.  This should be within the knowledge of PW5 at the time of the record of interview.  Why would PW5 insist that the defendant give a different version or different reason for the commission of the offence?

206.This court finds both PW4 and PW5 truthful witnesses and accepts that the two record of interviews as well as the issue of the Pol 153 before the two records of interview took place in the manner they told the court.

207.Further, the defendant says that when she signed on the Pol 153 (Exhibit P13) the handwritings were already there, then therefore she could see the time of issue of the form to her as being 1340 hours and the time of a copy of the same being given to her at 1315 hours, why would she sign on this document at 1510 hours when the record of interview was completed?  There is no inducement, no threat, no pressure from PW5 for her to do so.

208.Further, her evidence that before the record of interview (Exhibit P6) she had already read the Pol 153 (Exhibit P8) so she must know her rights but she still maintained in her evidence that she does not know her rights before the record of interview on 15 April 2018.  This saying is preposterous and must not be accepted.  Of course she is aware of her rights by the time of 15 April 2018.

209.Further, the appointment on 15 April 2018 was fixed some time before 15 April and she had every opportunity to instruct a lawyer or seek legal advice in respect of the matter.  And, according to her evidence, she had no financial difficulty, but instead she did not seek any legal advice or help from a friend.  If she was really afraid as to what would happen or, as she alleged, as a result of her writing an incriminating letter of remorse or signing Exhibit P5, the contents of which were both incorrect and incriminating against her, why would she take no action in the meantime?  The defendant explained her inaction was that there might be the chance of her not being prosecuted as stated by one of these police officers in the police station because the company suffered no loss. 

210.Still, if the defendant was really afraid as she said she was and concerned about the case, why would she take the chance and not take legal advice or make attempt to correct the incorrectness in Exhibit P5 before the record of interview on 15 April 2018 or during the record of interview on 15 April 2018 (Exhibit P6). 

211.This court noticed that the defendant had even mixed up the magistracy she attended for this case with another magistracy.

212.The defendant’s evidence is full of inconsistency, devoid of logic and not believable.  This court does not find her evidence reliable.

213.On the other hand, the evidence of PW5 is reliable and this court accepts his evidence.

214.In fact, despite the defendant said she was afraid on 30 December 2017, she admitted she only read the record of interview (Exhibit P5) two or three days afterwards.  Her conduct did not support her alleged anxiety or fear as she alleged.  At one time, she even said that she only read this Exhibit P8 at the end of 2018 when she instructed a lawyer. Later, of course she changed the evidence and said that before 15 April 2018, she already read Exhibit P8.  It is also the evidence of the defendant that the first time she was aware of the contents of Exhibit P6 was after she has instructed a lawyer which is in late 2018, some seven/eight months after the record of interview.

215.It is also said that even though the record of interview might have been conducted voluntarily, the fact that a sum of $300,000 was stated to be the stolen amount when the same was actually $290,000 and $100 euro and US$100 make the evidence from the record of interview unreliable.

216.This court does not agree with this submission. Firstly, there was nothing ambiguous about the oral admission of the stealing out of momentary greed and a change of mind leading to the return of the monies.  Secondly, as said earlier, this court does not find PWs untruthful when they mentioned a sum of $300,000 in view of the fact that they only had the CCTV footage to rely on as to whether the money from the counting machine was $50,000 or $40,000.  The defendant herself admitted she did not correct the sum of $300,000 on numerous occasions when she had the opportunity to do so and it is only during trial that she alleges that it should be $290,000 as opposed to $300,000.  The subject matter of the charge has been revised to $290,000 and one US$100 and one Euro $100 banknote, and it is the evidence from the defendant that the sum was $290,000 and two foreign currency notes at the trial.

217.The defendant says answers to questions in Exhibit P6 was made without her input save for question 5 where the defendant said PW5 did ask but when she said she still had the rucksack, he said that that would mean that they need to go for a house search to seize the same and persuaded the defendant to say that she has thrown away the rucksack.  Defence counsel says in fact the defendant still has the rucksack and therefore it shows PW5 suggested the answer to question 5 for the defendant.

218.This court thinks that there is of course also the possibility that the defendant had lied when she gave the answer herself. The defendant said that PW5 had not been asking her questions and had just been writing all the questions and answers on his own.  If that was the case, why would he ask this question and insist on this answer?  Why would he not just write the answer and the question himself?  Again, this court does not find that submission useful.

219.The defendant said also that PW5 did sort of threaten her when he said after the writing of the answer to question 5 that if the defendant should state otherwise than the answer to question 5, then it would be up to the judge to decide which version to believe.  She considered this a threat because the question asked of her was whether there was a threat from PW5 during the record of interview.  But if that was true, why would the defendant still say she thought PW5 was helping her in this record of interview when she tried to explain that she did what PW5 told her to do without asking, ie signing Exhibits P6 and P13 without knowing its contents, and when he knew that the contents of the declaration in Exhibit P6 was incorrect?  Because she does not know and had not read the contents of the record of interview.  One must not forget that according to the defendant, which this court does not accept, she had been tricked by PW4 already when Exhibit P5 was made.  She signed documents consisting of incorrect contents including an admission she did not make.  Her evidence and explanation does not accord with common sense and this is not accepted by the court.

220.Defence also mentioned why the defendant would use the word “staff” to describe a colleague, suggesting the answer was provided by PW5.  If one read the answer to question 1, one would see that the word “colleague” was being used and, for the answer to question 9, the word “staff” was used, when both answers, according to the defendant, were being written by PW5 himself, so again there is no basis for this comment.  It is the case for the defence that PW5 disallowed her from reading the record of interview (Exhibit P6) and he made the threat after the answer 5, in that case, again, why would the defendant still think that PW5 was being helpful?

221.Whilst this court does not accept the evidence from the defendant, the court reminds itself the defendant does not need to prove anything.  The burden of proof still rests with the prosecution and that the prosecution has to prove beyond reasonable doubt that the record of interviews have been made voluntarily.

222.Considering what is before this court on the special issue and accepting the evidence of the prosecution witnesses, the court has no hesitation to conclude that the prosecution has discharged the burden of proof to exclude and there is no good reason to justify the exercise of discretion to exclude their admissions and that therefore previous ruled the exhibits in question admissible.

223.We now go to the general issues.

224.Firstly, the court accepts the evidence of PW4 that the defendant did make the oral confession under caution voluntarily at the Cheung Sha Wan office to PW4.

225.This court also finds as a fact that at no time did the defendant tell any of the PWs other than PW1 that she returned to the shop the next day in order to make up the shortfall.

226.At the close of business on 28 December 2017, the defendant was seen on the CCTV footage taking the money from the company drawer and putting some of them in the safe and also taking some other money, now said by the defendant as HK$290,000 plus one US$100 note and one Euro $100 banknote, to the shop rear.

227.Her explanation was that she found a shortfall of slightly over $4,000 that evening in the company money as opposed to what the company should have and she did not know the exact shortfall.  She said she thought that money had somehow got mixed up and placed amongst this $290,000. She therefore placed this $290,000 separate from the rest of the money in the safe and put them at the back of the photocopier in the shop rear.  She also said she intended to count that $290,000 again the next morning before the other staff comes back.  She would also make up the shortfall the next morning as she did not have enough money that evening.

228.Firstly, she did not explain why of all monies in the company drawer she would choose these particular stacks of money comprising of $290,000 as being possibly got the $4,000 odd shortfall mixed amongst them. 

229.Secondly, the $4,000 odd shortfall must be a serious matter to her because her monthly salary is only about $14,849 (calculation based on seven days’ pay being $3,353), why would she not recalculate to see what the exact figure for the shortfall was and also to recount the $290,000 placed at the back of the photocopier she said before she left the shop?  It only take few minutes or few seconds for the money counting machine to clarify the matter if there was some mix up or shortfall amongst this $290,000.  Her explanation is absurd.

230.Defendant said as her duty hours is only up to 7 pm, that is why she had to leave by 7 pm.  

231.According to PW2, the alarm of the shop would be activated only by the staff when she left the shop, so there is no reason that the defendant could not leave later than 7 pm to clarify the matter.  Further, if the defendant was so strict in complying to working hours, why would she return the next morning when she was on leave?

232.The defendant’s evidence is self-contradictory. On the one hand, she said that she did not want her colleague to know that there was a shortfall.  On the other hand, she said she would return to the shop during normal working hours, which means of course that she would be noticed by her colleague. 

233.Later, she also said that she did not count the $290,000 next morning because PW1 had already returned to the shop. 

234.This court also noticed that though the defendant said there was a shortfall, defendant did not spend much effort in searching for the missing money in the shop.  She was not seen spending time searching the table top, underneath the counter or the drawers and the other places in the shop. 

235.One further noted from the CCTV footage in the morning of the 29^th that the defendant did not actually recount the money she took, she just put them back to the drawer.  Although she explained that the reason was that PW1 had already returned and she has no time to recount in his presence, she also explained that if indeed the shortfall was amongst those money and the company has more money than it should have, then the PW1 would tell her.  But $4,190 is a lot of money to a person earning less than $15,000 a month.  This explanation is not believable.

236.The defendant herself told PW1 that the reason for her to come back on the 29th is to make good the shortfall.  So PW1 is already aware that there is a shortfall.  So what actually is the reason for her not recounting the money in front of PW1?  Of course it is her duty and PW1 of course would prefer her handing over the shop to him with the correct balance.

237.Further, from the CCTV footage, one could see that the defendant put the money back to the company drawer long before PW1 came back without counting them.  It was only some time later that PW1 returned.  This confirms that the defendant never had the intention to recount those monies that she did not place in the safe and that she took the money for a different purpose.  When asked if it was unfortunate that PW1 came back and met her, the defendant denied.  Again, this must be a lie.  Had PW1 returned only after the defendant left, then the return of the defendant would not be noticed or brought to the attention of the company and the case would not be reported.

238.As for why the defendant took the two foreign currency banknotes, the defendant’s explanation was even more unbelievable. She said she did not want to put these two foreign currency banknotes into the safe to confuse herself.  This court does not know what she was actually saying.  The defendant said she had returned the two foreign currency banknotes to the company drawers.  As that was not caught by the CCTV footage, the defendant said that they were placed between the stack of Hong Kong dollars that she returned to the company money drawer.  She did not explain why she placed these foreign currency notes amongst the Hong Kong dollars in this manner. 

239.According to PW1, he found the money in the shop in the morning of the 29th match exactly with that shown in the computer record (Exhibit P3).  Exhibit P3 shows that at the close of business on 28 December 2017, there was only US$9.23 and Euro$9.1 in the shop.  This meant therefore that:-

(a) the defendant never returned the US$100 banknote or the Euro$100 banknote to the shop, and

(b)the defendant did not key in the last transaction involving these two banknotes in the company record.

240.It is clear that the defendant had taken these two banknotes and not returned them.  This of course explains at least one of the reason, if not the only reason, that she had to recalculate to see what the shortfall was and how much she has to pay back the company.  There is also no evidence that she has not tampered with the money that she had not put in the safe the night before.  Again, this is a lie.

241.The defendant said she did not take the money away from the shop.  Again, this is a lie.

242.As the CCTV footage on the 29th shows that both feet of the defendant were still in the doorway of the shop coupled with the photo 1 of photo album (Exhibit P11), one could safely conclude that the defendant could not possibly have been able to reach the back of the photocopier and got the money.  She must have taken the money from somewhere else.  In fact she told the court that her rucksack was hanging on the door. This court does not accept the defendant’s evidence that she had placed the money behind the photocopier or that she has put aside the money for recounting purpose the next day.

243.The defendant had all along been working as a money changer since she left school and for a long time.  It was too obvious to her that she knows the best and the safest place to put the money overnight was the safe, even if she was to recount the money the next day, which the court did not agree. 

244.Even if she was going to recount the money on the next day, that is not a good reason for not placing the money in the safe.

245.At one time the defendant also said that the reason why she did not put those $290,000 in the safe was because she was worried that the staff going on duty the next day would arrive the shop earlier than her.  This court was unable to see how that could be a reason for not putting the $290,000 in the safe. 

246.In fact, had there been a shortfall of $4,000 odd as the defendant said, which the court did not find or accept, the fact that she sent a WhatsApp to the company at close of business on the 28^th leading them to believe that there was the correct balance in the shop was again dishonest.

247.Having considered the figures of the US dollars and the Euro in the office both at the close of business on the 28^th evening and after return of PW1 on 29 December 2017, the amount of money in the company drawer matched that of Exhibit P3, this court concludes that the defendant had in fact returned the two foreign currency banknotes not put in the safe the night before in the company money drawer.

248.It is seen clearly on CCTV footage that in order that the company has the amount same as that of Exhibit P3, the defendant has to take out money both from her trouser pocket as well as money from outside the coverage of the CCTV camera in order to arrive at this figure.  She also had to make calculations before this figure of $4,190 was finally settled in the company drawers in order that the figure in the company money drawer and Exhibit P3 matched.

249.This no doubt shows that the defendant in fact has taken the money away from the shop the night before.  The same had since been placed at different places and that part of that money got mixed up with her own money, such as money in her trouser pocket, which therefore necessitate the calculation and that the defendant returned on 29 December 2017 to the shop.  She put back the money.  As there was no reason that an experienced money changer would put aside money in question aside from the safe on return of the defendant on 29 December to the shop, the money that she did not put in the safe the previous night had not been, as she said, all put in the shop rear, or in fact put in the shop rear to be exact.

250.While this court does not accept the evidence of the defendant, the court reminds itself that the defendant does not have to prove anything as that the burden still rests with the prosecution.

251.On what is before this court, the prosecution has proved the case beyond reasonable doubt because the only irresistible inference that one would draw from the evidence before the court was that the defendant had, on 28 December 2017, dishonestly taken no less than $290,000 and one US$100 banknote and one Euro $100 banknote from the shop with the intention to permanently deprive its employer, King Chi Trading Company and that subsequently there was a change of intention leading to the return of the monies to the shop the next morning.  This court therefore now convicts the defendant.