HKSAR v. Ng Fan Ying

HCMA 571/2019

[2021] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 571 OF 2019

(ON APPEAL FROM STCC 3839 OF 2017)

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Before:  Hon D’Almada Remedios J in Court

Date of Hearing:  19 March 2021

Date of Judgment: 17 May 2021

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J U D G M E N T

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1.The appellant appeals against her conviction by a magistrate[1] of 2 counts of aiding, abetting, counselling or procuring the breach of condition of stay, contrary to section 89 of the Criminal Procedure Ordinance, Cap 221 and section 41 of the Immigration Ordinance, Cap 151. She was sentenced to 4 months’ imprisonment.

Background

2.The nub of the prosecution case was that PW1, who was employed as a foreign domestic helper by the appellant was told by the appellant to work at premises outside the contractual premises.  PW1 was therefore in breach of her condition of stay and the appellant aided, abetted, counselled and procured PW1’s breach of condition of stay.

3.The first employment contract of PW1 with the appellant was for 2 years commencing from November 2012 to November 2014 (“the 1^st Contract”).  PW1 renewed her employment for another 2 years with the appellant in November 2014 to November 2016 with a different contractual address (“the 2^nd Contract”).

4.Due to the limitation imposed by section 46(2) of the Immigration Ordinance, the prosecution adduced evidence through PW1 as to the events of only the last two months of the 1^st Contract, that is early October to November 2014 (count 1).  As PW1’s employment with the appellant ended prematurely, the second count covered the period of the 2^nd Contract between 9^th December 2014 and 8^th November 2015.

PROSECUTION CASE

Charge 1

5.The prosecution case was that PW1 was contracted to work in House 1 in her first contract with defendant.  PW1 lived in House 1 for 1 year 6 months in her first contract.  From May 2014 to August 2014, PW1 was taken to House no 11 (“House 2”) where she stayed for 3 to 4 months. The house had been closed for many years and was getting ready for renovation. Inside the house were the usual household items.  The kitchen was full of cooking utensils.  PW1 was told to clean House 2 and work together with the renovation workers to get the house cleared for renovation.  PW1 cleared the household items by taking them from House 2 to the ferry pier, which was some 15 minutes away.

6.After staying at House 2 for 3 to 4 months, PW1 was moved to House no 13 (“House 3”).  During her stay at House 3, PW1 continued her work in House 2.  PW1 was also asked to clean House 3 for 1 to 2 hours.  PW1 also had to clean House no 10 (4^th House), where defendant was staying until the end of PW1’s first contract.  Defendant moved to House no 10 after PW1 left House 2.

Charge 2

7.Between the period 21 November 2014 to 8 November 2015, PW1 lived at the contractual address not with the appellant but with the appellant’s brother and sister-in-law lived in House 10.  PW1 worked for the appellant’s brother’s family.  At this time the appellant lived in House no 11 (“House 2”). PW1 went to do the laundry and washing up for the appellant at House 11 once or twice per week.  The appellant told PW1 to dust and clean a friend’s House no 15 (“House 15”) which was vacant but had the usual household items inside of it.

Defence Case

8.The appellant’s case was that PW1 suffered from mental illness with schizophrenia symptoms prior to giving evidence.  Therefore, her evidence was not reliable.  The defence attacked PW1’s credibility and reliability.

9.The defence sought to discredit PW1 by showing that she had a motive to lie as PW1 had instituted a claim in the High Court for $1.5million damages.  It was PW1’s version in the pleadings that she was forced to work outside her employment contracts, for 17 hours every day during the 1^st contract and for 18 hours during the 2^nd contract.  It was PW1’s claim that apart from working at other houses in Sea Ranch she worked at a restaurant/guesthouse and an office during the 1^st contract.  Given her claim of working these long hours her credibility and reliability in working at all these premises was in doubt.

10.The defence sought to discredit PW1 by questioning her on the discrepancies in her evidence and her statements she had previously made to the Labour Tribunal and Immigration Department.

Issue at trial

11.The primary issue at trial was PW1’s credibility and reliability.

The magistrate’s findings

12.The magistrate dedicated 17 paragraphs in his Statement of Findings[2] in relation to PW1’s credibility.  They are as follows:

“Credibility

43. Regarding PW1’s general credibility, I have the following considerations:

i) Defence in their closing submission stated that PW1 was motivated by her civil claim, therefore, making all the false allegations against defendant. First, I noted that defence in closing submitted various inconsistencies between her evidence in court and her civil claim pleadings and witness statement. However, defence did not adduce those pleadings and witness statements in this trial and did not cross-examine PW1 on them. I have no evidential basis to assess such closing argument.

ii) I have carefully listened to PW1’s evidence. She did not voluntarily bring up her allegations in the civil claim. She did not mention other defendants’ infringements until being brought up in cross-examination by defence. I do not see PW1 was motivated by her civil claim and actively trying to paint a bad picture of defendant in this trial.

iii) Defence complained PW1 did not mention Priyanka in her witness statements to Immigration Department. In PW1’s evidence in court, she said Priyanka came to Hong Kong with PW1 and was working in the same area for defendant’s brother during first contract. However, PW1 did not mention her name to Immigration Department. Defence suggested that PW1 was dishonest in this regard and wanted to paint a picture that she was helpless when, in fact, she was not.

iv) However, in court, PW1 voluntarily told the court about Priyanka. Further, even though PW1 did not mention Priyanka’s name to Immigration Department, she mentioned there was another domestic helper. She did not try to hide the fact there was someone else there. Lastly, PW1 said she thought Priyanka is gone, do not want to drag her in. Therefore, she did not tell Immigration Department her name. I accept her explanation in this regard.

v) Defence said PW1 would have talked to Priyanka about her problem with salary, work, holidays, etc. However, PW1 said defendant told her not to communicate with Priyanka on these issues or in general not to communicate with Priyanka. Her evidence in this regard is believable. As such, I find nothing wrong with PW1’s evidence regarding her interaction with Priyanka.

vi) PW1 said while she was staying in House 1 she was not allowed to stay inside the house, she was given a small space outside the house and a small plank of wood as bed. Defence suggested it was new fabrication; it was not mentioned in her statement to Labour Department. I noted PW1 only told this fact when being asked about accommodation. She did not bring it up suddenly in order to paint a bad picture of defendant. PW1 also said she told her lawyer about it.

vii) Defence said it was also not in the pleadings and the witness statement in the civil trial. Again, they are not part of the evidence before me.

viii) Defence suggested that PW1 knew how to go to Macau and returned for visa extension; she must have knowledge of the rules for domestic helper. It is not that difficult to find out she can go to Macau to extend the visa.

ix) Regarding PW1’s salary, PW1 said she was paid $2,500 in the first three months. On day 1 of the trial, PW1 said she talked to defendant after receiving $2,500 from defendant’s husband. According to her own witness statement to Immigration Department, PW1 said defendant told her about $2,500 when she first arrived. Looking at her evidence when she being cross-examined on the previous statement to Immigration, it is clear PW1 was not a particular bright person, with language difficulties. I accept she remembered wrongly when giving statement to Immigration Department. However, this does not affect her honesty.

x) Regarding PW1’s accommodation, in examination-in‑chief, PW1 said she stayed in contractual address for one year and a half, then moved to house 11 for three months, then house 13 for the last three months during the first contract. According to her statement to Human Trafficking Division, she moved to the renovated house in the 20th month of her contract, continuing for the next six months. When asked about discrepancy, PW1 said, when she was giving the statement, she was going through a lot. Defendant also confused names of defendant and her brother. I accept her explanations.

xi) Regarding House 15, PW1 said she only cleaned there twice in in-chief. In her statement to Human Trafficking Division, she had to clean house 15 for about 1.5 hours twice a week. PW1 in court explained that was defendant’s instruction, not what she actually did.

xii) Regarding working hours, defence tried to calculate how much work required. First, in renovation, debris would be collected every day. Defence questioned why it needs to be collected every day. However, it was ongoing renovation; they will continue to create debris. It is not surprised that PW1 needs to collected debris every day.

xiii) Also, on this note, it is also not surprised any employer will not ask contractor to collect debris, instead instructed the helper to do so. This arrangement can save cost. Renovation companies charged home owners for removing debris. I found there is nothing wrong in her evidence regarding her work and the working hours in the renovation house.

xiv) Defence, in closing submissions, further tried to calculate her working hours in comparison to the civil claim pleadings and witness statements. Again, those are not evidence before this court.

xv) I noted that PW1 is sole witness of this case. Defence suggested there was no land search regarding ownership. However, even if there is, it would not matter. PW1 only knew what defendant told her regarding the house ownership. PW1 might not know real owners of the various house.

xvi) I have also considered her mental illness, as discussed earlier, I accept the diagnosis of Dr Kwan and Dr Fan. Further, I accept Dr Fan that a patient would be able to differentiate true and falsified memories after discovery. While her symptoms had been about mind being affected by internet, there is no suggestion PW1 was working in different houses on her own without instruction from anyone during the charged period or any medical history that defendant’s complaint of thought insertion regarding her working history in the material location or any of her working history. I accept her memory was not affected by mental illness when giving evidence.

xvii)  As PW1 is the sole witness, I have carefully considered her evidence, including the considerations above.  Overall, PW1 impressed me as a simple-minded person with difficulties remembering details like names and numbers.  As such, it is not easy for her to give reliable evidence on details like exact conversations, house numbers, dates, etc.  That is also why there was some minor discrepancies as discussed.  However, I do find her overall as an honest witness.  Matters like daily routine or major events, for example, where she worked would be much easier for her to remember.  I do find her evidence on those matters reliable. I find PW1 as an honest and reliable witness in this regard.  Her memory was not affected by her mental illness.”

13.The magistrate went on to make the following factual findings at the conclusion of his Statement of Findings below :-

“Charge 1[3].

44. Therefore, I accept beyond reasonable doubt PW1’s evidence that, during the first contractual period, after early October to 21 November 2014, following defendant’s instructions, PW1 was living in house 13, away from the contractual address. PW1 was told to clean house 3 for one to two hours and PW1 also had to carry work in house 2 three to four months after August 2014 making it up to the end of first contact in November. PW1 would be working with renovation workers and get the house clean, including moving trees to ferry pier.

45. PW1’s condition of stay only permitted PW1 to work as a domestic helper at the contractual address. Defendant told PW1 to work outside the contractual address. I find beyond reasonable doubt PW1 was in breach of her condition of stay and defendant aided, abetted, counselled and procured PW1’s breach of condition. I find defendant guilty of Charge 1.

Charge 2

46. I accepted PW1’s evidence that, during the second contractual period between 9 December year 2014 to 8 November 2015, PW1 was contracted to work for defendant as domestic helper in Flat DG, Block 10, the Sea Ranch.  However, defendant was living in house 11, while defendant’s brother and sister-in-law were living in contractual address.  Defendant told PW1 to work in House 11 for herself, House 10 for defendant’s brother and his wife and defendant’s friends in House 15 to do cleaning job.  PW1 was performing outside the contractual address, house 11 and 15.”

Grounds of appeal

14.The Appellant relies on two grounds in this appeal:-

Ground 1

15.The learned magistrate erred in disallowing the defence to cross-examine PW1 on her previous statements made in relation to her civil claims and in relation to allegations that she was the subject of human trafficking by the appellant when such matters went directly to her credit and credibility and motive to lie.

16.Mr Robert Pang SC leading Mr Marco Tse for the appellant complains that the magistrate refused to allow questions on the civil claim filed by PW1 in the Court of First Instance (the High Court) because “he did not want this as a venue to obtain evidence for other proceedings[4],” because it might prejudice the other proceedings[5] and was not relevant to the charge[6].  Despite a further attempt to allow PW1 to be cross-examined in relation to the basis for her civil claim with a view to establish that PW1’s evidence was not credible.  The magistrate again refused[7].

17.The magistrate further refused to allow cross-examination on her previous statement to the Immigration department[8].

18.It was argued that the two defence counsels (Mr Hatton S F Kong and Mr Marco S P Tse) exploration of PW1’s credibility was a paramount and core issue at the trial.  Cross-examination on them was significant to establish that PW1’s evidence was not credible.

19.Mr Pang submitted that the magistrate’s refusal to allow cross-examination on matters not covered in the charges was wrong for the following reasons:-

(1)   The fact that the matters sought to be cross-examined upon are matters with which the appellant was not charged with is neither here nor there when the reason why the appellant was not charged was because they fell outside the limitation period;

(2)   The matters sought to be cross-examined upon were not merely relevant to PW1’s credibility but also relevant to a live issue of the trial.  In any event, an issue that has bearing on the credibility of PW1 would have bearing on the issue in dispute as well and is thus relevant;

(3)   The civil claim of PW1 was relevant to PW1’s motive to lie; and

(4)   The civil proceedings would not be affected by the cross‑examination.

20.At the trial defence counsel specifically sought to cross‑examine PW1 in relation to her alleged work at a hotel and work at an office in Fo Tan (which was outside the period of the first count) and the allegation that PW1 was working for 17/18 hours a day.  If these questions were allowed the magistrate could assess PW1’s credibility on her evidence on what different jobs she was doing if any, in light of there being only 24 hours in a day and more particularly if PW1 was doing these odd jobs at Sea Ranch.

21.Mr Pang argued that firstly, prosecuting counsel informed the magistrate that the matters in relation to the restaurant/hotel were not part of the charge simply because of the limitation period.  PW1’s version of events was presented to the investigating authorities as a whole from the beginning of her 1^st contract with the appellant and her credibility could and should have been assessed as a whole.  It was wholly artificial to break up PW1’s version into the parts that attracted a charge and parts that did not attract a charge.

22.Secondly, in the present case, the prosecution relied solely on the evidence of PW1 to prove the charges.  The most pertinent and crucial issue is whether PW1’s evidence is the truth or a fabrication, and whether her evidence can be relied on.  Applying the principles set out in HKSAR v Wong Sau Ming^[9] relevance is a matter of degree and the court should usually permit questions in cross-examination as to credit if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony.

23.Mr Pang acknowledged that whilst the magistrate is entitled to accept part of a witness’ evidence and reject another part, the magistrate cannot simply shut his eyes to matters which affect the witness’ general credibility. If it can be shown that a witness is willing to lie on one aspect of a story which is presented as a whole, that must necessarily affect the other parts of the witness’ story.

24.Had cross-examination of PW1 on her civil claim been permissible there was evidence to show that PW1 had a motive to lie.  The magistrate failed to consider sufficiently, if at all, whether the entirety of her story of human trafficking and being required to work at places other than the contractual address(es) was motivated by a civil claim of a very substantial amount.

25.The appellant claimed in light of the rulings that the matters not covered in the charges were irrelevant, the defence could not present evidence to impeach PW1’s credibility by casting doubt on PW1’s evidence in relation to her alleged work at the restaurant and the office to counter PW1’s version that she was forced to work outside her employment contracts for 17 hours every day during her 1^st contract and 18 hours a day during her 2^nd contract which formed the basis of her claim in the High Court for $1.5 million damages.

26.Finally, the appellant contended that the rulings of the magistrate deprived the appellant of a fair trial and rendered the convictions unsafe and unsatisfactory.

Respondents submissions

27.Mr David Chan, Senior Assistant DPP together with Ms Laura Liu PP for the respondent contended that the magistrate did not disallow the defence to cross-examine PW1 on her previous statements made in relation to PW1’s civil claims, statements to the Immigration Department and Labour Tribunal.

28.It was Mr Chan’s submissions that a careful reading of the transcripts of PW1’s evidence revealed that the magistrate allowed the defence to cross examine PW1 in relation to her allegations that she was working at a restaurant, including questions touching on the frequency and period[10]. The learned magistrate appreciated that by asking such questions would assist the Court in assessing PW1’s credibility[11]. He only stopped the defence when he considered it was inappropriate (a) to go into the merits of the civil claims[12], (b) to determine PW1’s credibility in her civil claims which was not his role as a criminal judge[13].

Discussion

29.I turn to ground 1.

30.There was no dispute between the parties about the relevant legal principles in relation to cross-examination of a witness as laid down in the Court of Final Appeal in HKSAR v Wong Sau Ming^[14].

Relevant legal principles

31.In Wong Sau Ming, in considering the principles in relation to cross-examination about previous discreditable acts of the witness, the Court of Final Appeal emphasized the importance of cross-examination and set out the relevant general principles^[15]:-

(1)   Firstly, where the veracity of the witness is challenged on cross-examination as to credit, subject to the judge’s discretion to disallow improper questions, cross-examination about discreditable acts is widely permitted.  Its purpose is of course to show that the witness ought not to be believed on oath;

(2)   Secondly, the cardinal test of relevance in the law of evidence applies to such cross-examination.  The subject matter of the cross-examination must be relevant to the witness’s veracity.  Relevant is a matter of degree;

(3)   Thirdly, in applying the test of relevance, the court should in its discretion usually permit questions in cross-examination as to credit if the truth of the imputation conveyed would materially affect the court’s opinion as to the witness’s veracity on the subject matter of his testimony.  Conversely, questions in cross-examination as conveyed would not have any material impact on such opinion.  The imputation may relate to matters which are so remote in time or are of such a kind that the truth of the imputation would not have any material impact on the court’s assessment of the witness’s veracity.  The matters about which the witness is questioned in cross-examination as to credit must relate to his likely standing after cross-examination with the tribunal in question;

(4)   Fourthly, as a general rule, answers to questions in cross‑examination as to credit on any ground including veracity are final and evidence is not admissible to contradict them.  This can conveniently be referred to as “the finality rule”.  The rule is conductive to a fair trial.  Its rationale is that, as a matter of commonsense, a criminal trial should be kept within proper limits.  The court should focus on the issues in the case.  Its attention should not be diverted to collateral issues such as credit, the exploration of which may unnecessarily blur of confuse the real issues in a cloud of detail.  Although the rule has sometimes been criticized, it is well-established and necessary.  However, the distinction between questions going to the issues in the case and those going to credit is sometimes difficult to draw and in some cases, can be a rather thin one. 

(5)   Finally, there are well established exceptions to the finality rule.  It is unnecessary to go into them for the purpose of this case.  They allow proof by independent evidence of matters which tend to affect the credibility of the witness.  As the common law develops in Hong Kong, there may be possible room for relaxation of the finality rule and the list of exceptions is not closed. 

Did the magistrate disallow cross-examination of PW1

32.The crux of the appellant’s complaint is that defence counsel were unable to cross-examine on matters outside the charge period and on matters which would have discredited PW1’s evidence.

33.There was no dispute between the appellant and respondent that PW1’s complaint was that she was requested to work at premises outside the contractual premises upon commencement of her 1^st contract.  This was a single complaint that continued until she left the appellant’s employment midway through the 2^nd contract in November 2016.  As a result of the limitation period the 1^st count only pertained to events for the last two months of the first contract. 

34.Although PW1’s work in a hotel/guesthouse/restaurant as they were otherwise referred to at trial in Cheung Chau or an office in Fo Tan was not part of the prosecution case there was agreement between the appellant and the respondent that cross-examination in relation to allegations in PW1’s civil claim and statements to the Immigration Department and Labour Tribunal were relevant and went directly to PW1’s credibility and motive to lie.

35.On the question of disallowing the defence to cross-examine, a thorough and close reading of the transcript of proceedings is required to examine the exchange between the magistrate and the defence counsel and the questions asked of PW1 in cross-examination.

36.Both Mr Pang and Mr Chan referred the court to multiple parts of the transcript in support of their case.

37.It is clear from the transcript that the defence questioned PW1 about her visits to the restaurant, eating and using the internet service thereat[16]. Questions about visa renewal[17], PW1’s allegations of the appellant running a “guesthouse”[18], and about the time when she started working in the restaurant[19]. In the course of asking questions on the form of claim of the Labour Tribunal, the actual documents were shown to PW1[20]. The magistrate invited the defence to ask direct questions, and refrained from asking questions as to how PW1 had prepared the form of claim to avoid unnecessarily going into the legal privilege[21]. The magistrate further allowed questions that related to whether PW1 had worked at the restaurant during the first one and a half years of the 1^st contract which was outside the charge period; he just did not need too much details on this matter[22].

38.During the cross-examination of PW1, the defence asked questions about her allegations of working at the restaurant before the charged period, leading to PW1 giving answers about what she did at the restaurant/guesthouse such as bringing clothes from the guesthouse back to Sea Ranch to wash and what happened there in general[23]. When questioned by the magistrate about the relevance of the line of questioning of the civil claims, the defence answered they were questions “on this defendant’s (should be PW1’s) memory”- Mr Kong counsel for the defendant referred to her implications that her memory were affected as there were expert reports[24].

39.Plainly, the defence was asking PW1 to give details as to what she said in the civil claims with the hope of finding some discrepancies between her testimony in the trial and her previous statements and civil claims. 

40.I accept Mr Chan’s submission on this exchange that what the defence was doing was testing PW1’s memory for matters that were not within the charge period and not relevant to the core issues.  The magistrate as he was entitled to do, was correct to disallow such line of questioning because (i) he did not want the criminal trial to be used as a venue to obtain evidence for the civil proceedings[25], (ii) the line of questioning was too far-fetched and not relevant to the core issue[26], (iii) memory wrong in outside places does not affect memory in the Sea Ranch[27], (iv) the criminal trial was not a ground for a rehearsal of the evidence of the civil claims[28], (v) the questioning on the witness statements of the civil claims might prejudice the other proceedings dealing with matters not relevant to the charges[29], and (vi) the present case was about the breach of condition of stay but not about the treatment by the appellant of PW1 during her employment[30].

41.Upon careful examination of the whole of the evidence and the exchange between counsel and the magistrate he did not allow the defence to test PW1’s memory of general matters relating to her civil claim by relying on every aspect of the Statement of Claim[31], yet questions relating to specific inconsistencies alleged by the defence were allowed.  For example, questions in relation to PW1’s version of doing extra work of odd jobs in the Sea Ranch, and her allegations of working 17 or 18 hours daily during the two contractual periods were allowed[32].

42.Significantly Mr Chan pointed out, that despite the magistrate allowing cross-examination of PW1’s allegation on working 17-18 hours a day during the two contractual periods, the defence did not cross-examine PW1 on her claim of working 17 or 18 hours daily that was alleged in the civil claims.

43.In relation to PW1’s statement to the Immigration Department, the defence asked questions about her working at the restaurant and renovation house[33]. The original statement was shown to PW1, and follow-up questions were asked[34]. The magistrate specifically allowed questions on the overlapping period of working at the restaurant and the renovation house[35]. This was in line with the magistrate’s previous ruling that questions in relation to frequency and period were allowed. After a careful reading of the exchange between Mr Kong and the magistrate, the magistrate was specifically alerted to the issue of PW1’s claim of working 17 hours.

44.Defence counsel Mr Tse crossed-examined PW1 on various topics including her form of claim at the Labour Tribunal[36], and her living conditions[37]. When Mr Tse tried to question PW1 about her work at the restaurant, the magistrate stopped him and reminded him of the discussion with Mr Kong early in that morning[38]. The magistrate said that there was no need to go into the details of PW1’s working in the restaurant and repeated his earlier ruling that the proposed line of questioning was irrelevant to the charges, outside the charged period, and would affect the other proceedings[39].

45.When Mr Tse resumed his cross-examination, PW1 was questioned about the overlapping period when she worked at the restaurant and the renovation house^[40].  PW1 was cross –examined as to the hours she worked.  PW1 said she had to work from 6 to 9 am in the morning at the renovated house then at 9 am take a ferry to go and work in the restaurant until 10 or 11 at night.  She continued working like this overlapping for the next six months.  She said that “some days I have to work whole day at the restaurant, sometime I will work half day in one place and someday, the the other place half day but then I said like this.[41]” At one stage, PW1 misunderstood the question and said she worked from 6am to 8:45pm every day, leading the magistrate to focus PW1’s attention on Mr Tse’s question^[42].  However, the transcripts show that from AB358 onwards, the defence did not ask any questions on PW1’s daily working hours despite the magistrate’s ruling in the morning to Mr Kong that those questions could be asked.

46.In sum, the magistrate at different stages of the cross‑examination allowed questions in relation to the frequency and period of PW1’s jobs outside the contractual address, regardless of whether they were allegations outside the charged period.  He however required the questions to be relevant to the core issues of the charges and credibility of PW1.

47.The magistrate only restricted cross-examination not to serve as a memory-testing exercise on matters irrelevant to the charges, but allowed questions that could possibly show inconsistencies.  For example questions on the frequency and period of PW1 doing “outside jobs”, and the number of working hours at the restaurant and the renovation house ^[43] were allowed.  The magistrate was correct to point out that he would not go into the merit of PW1’s civil claims.  The defence appeared to understand and agree to the magistrate’s ruling, and said, “I wish to proceed in that manner then” ^[44].

48.When matters turned to the civil claim it is clear that the magistrate allowed cross examination on the period outside the first count. As can be gleaned from the transcript the magistrate permitted cross‑examination as to the alleged inconsistencies between PW1’s testimony on the working hours and her statements and her pleadings in the civil claim.

49.I disagree with Mr Pang’s submissions that any attempt to adduce evidence on the civil claim would in light of the magistrate’s repeated rulings be destined to fail[45].  The defence counsels never attempted to produce the pleadings of civil claim into evidence, should defence counsel have sought to rely on it as they did in their closing submissions it was the responsibility of defence counsel to adduce the pleadings into evidence and for the magistrate to make a formal ruling for it to be excluded.

50.In paragraphs (42) to (47) of the defence Closing Submission, the defence tried to rely on the calculations of PW1’s working hours and the amount of her civil claims for both contractual periods, and asked the magistrate to make comparisons to the pleadings and witness statements.  The magistrate was correct to hold that there was no evidential basis to assess the closing argument[46], and that there was no evidence before him in this regard[47].

Conclusion

51.The magistrate was well aware that the purpose of cross‑examination of PW1 was that she ought not to be believed.  He had a discretion to disallow cross-examination on matters which he considered irrelevant and of which would not have any material impact on his assessment of PW1.  The magistrate allowed the defence to cross‑examine PW1 on her previous statements and matters that were relevant to the issues.  There was no unfairness to the appellant.  She was not deprived of a fair trial.  There is no merit in the criticism of the magistrate.  Ground 1 fails.

Ground 2

52.The learned magistrate erred in failing to properly assess the credibility of PW1 in that the learned magistrate failed to take into account PW1’s motive to lie and duly consider the discrepancies in her evidence.

53.It was submitted that the discrepancies were material and highly relevant to the veracity of PW1’s evidence on the subject matters.  However, the magistrate either failed to consider them at all or simply accepted PW1’s explanation without proper analysis.

54.The appellant submitted the magistrate’s overall assessment on PW1’s credibility was unsatisfactory.  Coupled with his failure to take into account the important factor of PW1’s motive to lie in his assessment, the magistrate erred in accepting the evidence of PW1.

Respondents submission

55.Mr Chan submitted that the magistrate took into account PW1’s motive to lie and the discrepancies in her evidence.  He made findings on the matters and concluded that these discrepancies did not affect her reliability or honesty.

PW1’s motive to lie

56.The appellant submitted that the allegation of PW1’s work outside the contractual address is the basis of PW1’s civil claim and therefore she had motive to lie, namely, to fabricate the allegations for her own interest.

57.Mr Pang submitted that the magistrate simply focused on whether PW1 tried to paint a bad picture of the appellant in the criminal trial[48], which is a relevant but different issue.

Discussion

58.The magistrate was mindful of PW1’s claim against the appellant as a motive to lie.  He carefully considered her evidence.  He found that PW1 had no such motive and was not actively trying to paint a bad picture of the defendant[49] and that she was a simple-minded person[50].  There is no basis to disturb his carefully considered conclusion and findings of fact that she was not motived to lie.

Discrepancies in PW1’s testimony

59.Mr Pang contended there were multiple discrepancies in PW1’s evidence which contrary to the magistrate’s findings were not minor and he failed to give due consideration to them.

Inconsistency in the testimony of PW1’s working hours and the pleadings

60.It was submitted by Mr Pang that had the magistrate allowed the defence to adduce evidence on PW1’s civil claim, it would be clearly shown that PW1’s case in her civil claim that she worked 17 hours every day during the 1^st Contract and 18 hours per day during the 2^nd Contract is drastically different from her evidence in court in respect of hours of working per day.  For the charge period in count 1 her evidence was that she had to clean various houses for about 4 hours a day therefore it was impossible for her to work 17 hours a day.  Similarly, for count 2 she only cleaned one house twice in total and did some simple tasks in another house once a day so that it is impossible for her to work 18 hours a day.

Discussion

61.As to the inconsistencies in PW1’s testimony on her working hours and her statements and pleadings, as is evident from the transcript as referred to above, despite the magistrate giving an opportunity for defence counsel to cross-examine PW1 she was not cross-examined on the 17 and 18 hours a day.  There was therefore no evidential basis to assess the inconsistency on her testimony and the pleadings. 

Discrepancies as to house numbers.

62.In PW1’s evidence-in-chief, PW1 said during the 1^st Contract, she lived in the 1^st contractual address for a year and a half, then she lived in House No 10 for 3 months and in the last 3 months she lived in House No 13.

63.However, in her statement to the Labour Department, PW1 said in the 19th month of the 1^st Contract, i.e. June 2014, PW1 moved to House 13 and lived there until the end of the 1^st Contract.  When she was confronted with this discrepancy, PW1 said she was “going through a lot” when she gave the statement^[51].

64.Mr Pang contended that there was no reason why PW1 would completely forget that she lived in House 10 for 3 months when she gave the statement.  This is obviously a major event that according to the magistrate, should be much easier for PW1 to remember.

Discussion

65.In relation to the PW1’s evidence and her statement to the Labour Department the magistrate was alive to the discrepancy and was entitled to find that PW1 was a simple minded person with difficulties remembering details like names and numbers.  He found that it was not easy for PW1 to give reliable evidence on details like exact conversations, house numbers, dates etc[52]. I find no merit in this criticism.

PW1’s inconsistent versions about her work at house 15 in her testimony and her statement to the Labour Department.

66.In PW1’s testimony in court she said the appellant asked her to go to House 15 “whenever I had free time and try to clean the house.”[53]. In her statement to the Labour Department, however, she said, “As ordered by my employer, I had to work in a house belong to a friend of my employer at Sea Ranch, House No 15 about one to one-and-a-half hour a day, twice a week, cleaning.”[54]. PW1 tried to explain it was only the instruction of the appellant but not what she did in fact.

67.The appellant complains that the magistrate simply accepted PW1’s excuse without any analysis^[55].

Discussion

68.The magistrate had observed and heard her giving evidence he was entitled to accept PW1’s explanation that the words “about one to one-and-a-half hour a day, twice a week, cleaning” were merely instructions given by the appellant but not her actual work.  PW1 explained that she did not go to House 15 so often even though the appellant told her to clean there twice a week.  She said she told the appellant that she would not comply with the instructions^[56]. I find no fault in the magistrate accepting PW1’s explanation.

Statement in Labour Tribunal that 1^st contract address was a commercial guesthouse inconsistent with testimony that premises where appellant would have parties with friends from time to time.

69.In regard to the above inconsistency Mr Pang said the magistrate did not consider this discrepancy at all in his analysis.

Discussion

70.A close scrutiny of the transcripts show that despite what was said in the Labour Tribunal claim, PW1 did not actually regard where she stayed to be a guesthouse[57]. When the defence further put to her that the appellant was not renting out for money the first contractual address, her answer was “I don’t know what the defendant was doing when people come and go and I wouldn’t know.  At that time I thought that the people who were coming to the hotel are coming to this place too…she said people came to stay at the premises which was not the residence of the appellant at the time”[58].

71.From PW1’s evidence in court, she did not know if the appellant was renting out the house, hence it apparent that in her evidence she was not maintaining that it was a guesthouse but that people came to stay.  She however denied that the appellant lived there[59].

72.No further exploration was made of PW1 as to why she said it was operated by the appellant as a commercial guesthouse in her claim with the Labour Tribunal.  In the circumstances there was no actual discrepancies in the evidence, and hence it was unnecessary for the magistrate to deal with the point.

PW1’s lie in her Labour Department Statement about Priyanka

73.It was contended by Mr Pang, that PW1 admitted she knowingly told a lie in her statement to the Immigration Department that she did not know the name, address and telephone number of Priyanka, who was a distant relative worked at the appellant’s brother’s house nearby.  PW1 said she told a lie because Priyanka was no longer in Hong Kong and she did not want to drag Priyanka in^[60]. Mr Pang submits this explanation is totally unconvincing as she could simply say Priyanka was no longer in Hong Kong.

Discussion

74.The magistrate was well aware about Priyanka and that PW1 did not mention her to the Immigration Department.  He dedicated 3 paragraphs to Priyanka in his findings[61]. He thoroughly considered PW1’s evidence as a whole in regard to Priyanka.  He was entitled to accept that PW1’s explanation for not mentioning Priyanka was because she thought as Priyanka had left Hong Kong she would not be able to find her details and she did not want to drag Priyanka in the matter[62].

Discrepancy in timing of PW1’s knowledge about her salary in her testimony and her witness statement

75.Mr Pang complains that PW1 gave three different versions and changed her evidence when she was confronted with a discrepancy. Even after she changed her evidence, PW1’s evidence on the 1^st day and the 2^nd day still cannot be reconciled.

Discussion

76.The magistrate was aware that there was a discrepancy in her evidence this was dealt with in paragraph 43 (ix).  He explained that from his observation PW1 giving evidence was that she was not a particularly bright person and was someone who had language difficulties.  He accepted PW1 remembered wrongly when giving her statement.  He concluded that this did not affect her honesty[63]. He was entitled to come to his finding and I find no reason to interfere with it.

Conclusion

77.PW1 gave evidence over a period of 4 days.  Cross‑examination of PW1 was a lengthy one.  The defence relied heavily on the inconsistencies in the statements to the Labour Tribunal, Immigration Department and the pleadings in the High Court to contradict her oral evidence.  The magistrate was aware that putting the inconsistencies before him was significant for him to consider and had a bearing on her credibility.  The magistrate duly considered the inconsistencies and dealt with them comprehensively in paragraph 43 of the Statement of Findings referred to above.  He made a careful assessment of PW1’s evidence.  He knew that the prosecution case rested entirely upon the credibility of PW1’s evidence.

78.The magistrate considered the evidence as a whole, he dealt with the inconsistencies and in the context of all the evidence he accepted they did not affect PW1’s credibility.

79.The magistrate was sure that the charges were proved.  I have thoroughly reviewed in detail the evidence in the transcript.  I see no justification in going behind the magistrate’s finding on PW1’s credibility.  I find no error in the magistrate’s approach.

80.I am satisfied that the convictions were properly reached on the evidence of PW1 and dismiss the appeal.

Application to adduce fresh evidence

81.The appellant applies by notice of motion filed on 12 March 2021 to receive into evidence in the appeal pursuant to Section 83V(1) of the Criminal Procedure Ordinance Cap. 221, the following:-

(i)  Re-Amended Statement of Claim in HCA 2956 of 2016 filed on 30 January 2018

(ii)  PW1’s statements to the Immigration Department dated 15, 25 and 26 February 2016 and

(iii)  Re-Re-Amended Form of Claim in LBTC 2452/2016 filed on 14 July 2017 Labour Tribunal ( (ii) and (iii) referred to as the the documents).

82.The grounds for the application are as follows: -

(i)  that the materials are highly relevant to the assessment of the credibility of PW1 and

(ii)  the materials not being adduced in the trial as the magistrate disallowed cross-examination on the relevant issues as irrelevant.

Discussion

83.As referred to above, it is evident from the transcript of the proceedings, that the statements and the pleadings were referred to at trial. 

84.PW1 was cross-examined on her statement to the Labour Tribunal and Immigration Department.  Upon defence counsel seeking to ask questions in her Labour Tribunal statement the magistrate directed the form be shown to PW1 to confirm with her that was her statement.  Defence counsel did not have a signed statement but PW1 confirmed it was her statement.  Counsel Mr Tse[64] expressly abandoned confirming the statement with her and decided not to put questions to her about the statements in it.[65]  This was a conscious decision not to produce the Labour statements it into evidence.

85.Regarding the Immigration Department statement this was shown to her and she confirmed the statement and signature was hers.  Part of the statement was in Singhalese, which PW1 read.  She was asked questions on the statements she made in it. [66] It was not produced.

86.The pleadings in the High Court action were as can be seen above referred to at trial by the defence, however they were not produced.

87.Section 83 V provides that:

“(1) For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice -

…

(2) without prejudice to subsection (1) where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its powers of receiving it if —

(a) it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b) if it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

88.The Court of Appeal in The Queen v Tam Chung Shing & Others [1989] HKLR 47 G-I Silke VP considered the relationship between the two subsections:

“Sub-section (2) imposes a duty upon the court to receive further evidence, if the conditions of the sub-section are met, but, of itself, does not restrict the discretionary power of the court under sub‑s (1) to receive further evidence if the interests of justice require. The conditions in subsection (2) are not imported into subsection (1) but a Court should, in the exercise of tis discretion, have regard to them without treating them as decisive in that exercise…”

89.At no stage during the trial did the defence make an application to produce the pleadings or documents into evidence.  The defence could have adduced such evidence at the trial but chose not to do so.  No explanation has been provided by the appellant as to why they were not produced, save for Mr Pang’s speculative and erroneous assumption in paragraph 29 of his submissions that any attempt to adduce the evidence on the civil claim in light of the magistrate’s repeated rulings would have been destined to fail.

90.I am not satisfied that admitting such evidence on appeal would be in the interests of justice.

91.The magistrate properly evaluated and gave a careful analysis of PW1’s evidence, even had those documents been adduced at trial, I am satisfied that it would not have rendered a different verdict and finding on PW1’s credibility.

92.The application to adduce fresh evidence is refused.

Mr David Chan, SADPP and Ms. Laura Liu, SPP (Ag.), for Director of Public Prosecutions

Mr Robert Pang S.C. and Mr Marco Tse, instructed by S. K. Wong & Co, for the Appellant