HKSAR v. Francisco Chevie Rebong and Another

DCCC 524 & 525/2020

(Consolidated)

[2021] HKDC 1412

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 524 & 525 OF 2020

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REASONS FOR VERDICT

1.D1 pleads not guilty to one charge of burglary of Alvy’s restaurant in Kennedy Town, contrary to section 11 of the Theft Ordinance[1] (charge 1) and one charge of doing a series of acts tending and intended to pervert the course of public justice, contrary to Common Law[2] (charge 2).

2.The particulars of charge 1 read:

“FRANCISCO Chevie Rebong and LIMBU Alex, on the 27th day of November, 2019, in Hong Kong, together with MARIANO Gerard B., having entered as trespassers part of a building known as “ALVY’S”, Ground Floor, Pearl Court, No. 8 Holland Street, Kennedy Town, stole therein 3 bags and cash of about $63,300 Hong Kong currency.”

3.LIMBU Alex, D2, pleaded guilty to the charge and admitted the summary of facts on 23 August 2021, the first day of trial.  MARIANO Gerard B failed to appear at Eastern Magistracy on 24 April 2020 and an arrest warrant was issued[3]. 

4.The particulars of charge 2 read as follows:

“FRANCISCO Chevie Rebong, on or about the 27th day of November 2019, in Hong Kong, with intent to pervert the course of public justice, did a series of acts which had a tendency to pervert the course of public justice, in that the said FRANCISCO Chevie Rebong, by offering to waive the debt owed by GERTOS Mary Grace Burlas to her and to pay the said GERTOS Mary Grace Burlas an extra sum of $1,000 Hong Kong currency, asked the said GERTOS Mary Grace Burlas not to tell anyone the truth, namely that the said FRANCISCO Chevie Rebong was a party to a case of “burglary” which occurred on the 27th day of November 2019 at “ALVY’S”, Ground Floor, Pearl Court, No. 8 Holland Street, Kennedy Town.”

Prosecution case

5.The prosecution case is that D1, D2 and Mariano Gerard B, D1’s boyfriend, were party to a joint enterprise to burgle Alvy’s restaurant, a restaurant where D1 had previously worked.  The burglary was carried out by D2 and Mariano Gerard B with D1 first going to Alvy’s to check where the money was kept and to obtain a key for D2 and Mariano Gerard Bto carry out the burglary.  

6.In summary just after midnight on 27 November 2019 when Alvy’s was closed for business D1 went to Alvy’s purporting to catch up with GERTOS Mary Grace Burlas (“Ms Gertos”).  D1 helped Ms Gertos to cash out, a procedure D1 had previously undertaken when working in Alvy’s. 

7.This included D1 picking up keys and using one of the keys to open the money locker where the money of the restaurant was kept; taking out from the money locker three bags for keeping the turnover, loose change and tips and giving the bags to Ms Gertos.  After Ms Gertos counted the money in the cash registers and put the money in the bags, D1 put the three bags back in the money locker and returned the keys to Ms Gertos. 

8.D1 and Ms Gertos left Alvy’s at around 1:30 a.m.  At around 2:51 a.m. D2 and Mariano Gerard B entered Alvy’s and forced open the money locker and stole the bags containing the money. 

9.Later the same day Ms Gertos received messages from D1 on Facebook in the course of which D1 told Ms Gertos about the burglary saying that her boyfriend planned to take the money and did take the money; she changed the key for the money locker; asked Ms Gertos not to tell the truth and not to tell anybody she had visited Alvy’s and that she would waive the debt of $1,500 Ms Gertos owed her and pay Ms Gertos an extra $1,000 if she did not say anything.   

Defence case

10.In summary the defence case is that D1 did not know about the burglary; did not go to Alvy’s to check where the money was kept; did not swap any key and did not send the messages.

Evidence

11.The prosecution called four witnesses on the schedule of prosecution witnesses attached to the prosecution opening: Mr Ambekar Saheb Kumar (PW1), the manager of Alvy’s; Ms Gertos (PW2), Ms Wong Rowena Canada (PW3), a waitress at Alvy’s who was present when D1 went to Alvy’s prior to the burglary and DPC 22336 (PW4)[4], who searched the premises of Mariano Gerard B and took photographs of the Facebook messages. One additional witness WSDPC 18981 (PW5), who conducted a forensic examination of the mobile phone of Ms Gertos, was called. 

12.Facts have been admitted pursuant to section 65C of the Criminal Procedure Ordinance, including that D2 and Mariano Gerard B burgled the restaurant[5]; the arrest of D1[6] and photographs[7].  The visit of D1 to Alvy’s and the burglary of Alvy’s was captured on CCTV.  The CCTV footage has also been admitted in evidence[8]. I will refer to the admitted evidence as I review the evidence. 

Material non-or late disclosure by the prosecution

13.Miss Zahir submits that the defence have been significantly handicapped and disadvantaged in the preparation of the case by reason of material non-or late disclosure by the prosecution as particularised in the closing submissions[9]. On each occasion when new evidence/material came to light during the trial an adjournment was granted for the defence to consider the new evidence/material.  The length of the adjournment varied from until the afternoon, the next day and three days. 

14.The first witness was called in the afternoon of day 2 after Miss Zahir informed the court the defence were ready to proceed.  Whenever the trial resumed after the granting of an adjournment, save where further time was applied for and which was granted, no further applications were made by the defence arising out of the late disclosure by the prosecution. 

15.At the end of closing submissions Miss Zahir made reference to the defence being ambushed throughout the trial and even in closing.  The court referring to the defence written closing asked whether the defence were asking for a new trial or had any application to make.  Miss Zahir replied that she was not making any application.

Defence evidence

16.D1 elected to give evidence.  No witnesses were called on her behalf.

17.Admitted in evidence is that D1 has a clear record[10]. I direct myself as to good character both as to credibility and propensity in accordance with the decision in HKSAR v Tang Siu Man[11].   

18.In reaching my verdict I remind myself of the burden and standard of proof and that the burden is on the prosecution throughout.  D1 has to prove nothing.  I direct myself that I must be sure of the guilt of D1 on each charge before I can convict, each charge to be considered separately.  On the other hand, if the court thinks that the defence evidence pointing to innocence is true or may be true, it would follow that the defence has raised sufficient doubt in the prosecution case and D1 entitled to be acquitted.  

19.I remind myself that when drawing inferences from the evidence a court may only draw an inference if that inference is the only reasonable inference to draw from the proved facts.  If from the facts proved there is a reasonable inference to draw against a defendant as well as one in his favour the adverse inference cannot be drawn.  

Prosecution evidence

Ms Gertos (PW2)

20.Ms Gertos gave evidence under immunity from prosecution[12]. 

Alvy’s restaurant

21.Admitted in evidence is that at all material times Alvy’s restaurant (“Alvy’s”) was open daily for business from 4 p.m. to 12 a.m.; Mr Ambekar (PW1) was the manager of Alvy’s and Ms Gertos (PW2) was the supervisor[13].

22.Ms Gertos testified that she started working in Alvy’s in June 2017.  Ms Wong (PW3) testified that she started working in Alvy’s in October 2019 when she was hired as a waitress. 

23.In cross-examination Mr Ambekar confirmed he was still working for Alvy’s.  In answer to the court Ms Gertos said she was no longer working for Alvy’s[14].  In cross-examination Ms Gertos said that she believed Ms Wong had been working in Alvy’s for three days when D1 resigned[15].

24.Mr Ambekar testified that there was only one door to the restaurant which is shown in photographs 1, 2 & 3, exhibit P4.  Ms Gertos also identified the door to the restaurant.

25.Mr Ambekar explained that at the end of every night the cash revenue would be collected and put inside a clear folder with a red zipper[16].  The folder would be placed in the middle locker on the top row of five rows of lockers as shown in photographs 5, 6 and 7, exhibit P4 and the layout of Alvy’s (exhibit D1). 

26.Later in evidence Mr Ambekar testified that besides the cash revenue which was put inside the bag with the red zipper there was a bag for tips and a bag for the backup float[17].

27.Mr Ambekar said that he and two other staff were responsible for collecting the cash revenue.  On 27 November 2019 Ms Gertos was responsible for collecting the money[18]. Ms Gertos testified that on the evening of 26 November 2019 her job responsibilities included closing the cash registers.

28.The locker has been referred to in evidence as the money locker[19].  The money locker was for the use of the restaurant only whereas the other lockers were for the personal use of the staff.

D1

29.Admitted in evidence is that D1 was a former staff of Alvy’s[20].  Mr Ambekar testified that D1 joined Alvy’s in 2018 as a bar tender.  In cross-examination, after being shown his witness statement, Mr Ambekar agreed that D1 started on 23 October 2017 and resigned on 17 October 2019.

30.Mr Ambekar testified that D1’s duties also included handling the cash at the end of the day and placing the cash in the folder with the red zipper and then in the money locker.  D1 was given a key to the door of the restaurant and to the money locker.    

31.In cross-examination when asked if D1 returned the keys on resigning Mr Ambekar replied that the keys were not returned to him personally and that to his knowledge D1 had returned all the keys.  In cross-examination Ms Gertos agreed that on the last day that D1 worked in Alvy’s D1 handed the keys to her including the keys for the main door, the money locker and her personal locker.   

32.Mr Ambekar said D1’s performance was good.   Asked why D1 left Mr Ambekar replied that he thinks one of the main reasons was because they had a disagreement over D1’s boyfriend who would come and sit in the restaurant. Mr Ambekar thought this was inappropriate. 

33.Mr Ambekar knew the boyfriend as G but could not remember if G was for Gerard and only that his surname was Mariano.

34.In cross-examination Mr Ambekar said that he had a good relationship with D1; they were close friends and that D1 would share her personal details with him including her problems with her boyfriend.  Mr Ambekar agreed that to some extent her boyfriend was a threatening person and described an occasion when the boyfriend threatened him after he told him that he was no longer welcome at Alvy’s after which the boyfriend sent him a message telling him to “watch his back”. 

35.Ms Gertos testified that she became friends with D1 in 2017 after D1 was hired to work as a bartender at Alvy’s.  Ms Gertos said that D1 stopped working in Alvy’s in October 2019 because her work was affected by her boyfriend who would always go to Alvy’s. 

36.In cross-examination Ms Gertos agreed that prior to working in Alvy’s she had worked with D1 at Bubba Gump restaurant; that there was no incident of money missing when D1 worked at either Bubba Gump or Alvy’s; D1 would share her personal problems with Ms Gertos including that D1 had an up and down relationship with her boyfriend[21] and that D1 was scared of her boyfriend, Ms Gertos on one occasion having to hide D1 from her boyfriend[22].

37.In answer to the court Ms Gertos said that she called the boyfriend Gee and only knew that his name was Gerard[23].

27 November 2019

38.Ms Gertos testified that at about 10 p.m. on 26 November 2019 D1 telephoned her saying she wanted to visit her at work because she missed her.   Ms Gertos had not seen D1 since D1 left Alvy’s.

39.Admitted in evidence is that shortly after 12:18 a.m. on 27 November 2019 Ms Gertos and Ms Wong were in the restaurant when D1 arrived and met them[24].  The restaurant had already closed for business.

40.The visit of D1 to Alvy’s was captured on CCTV.   The CCTV footage has been admitted in evidence (exhibit P1)[25]. The CCTV footage comprises of three cameras which show the sitting area of Alvy’s (Cam 01); the main entrance of Alvy’s (Cam 02) and the locker area (Cam 03). Admitted in evidence is that the CCTV footage is 4 hours and 30 minutes slower than the real time[26]. Three screen captures from the CCTV footage showing the visit of D1 to Alvy’s have also been admitted in evidence (exhibit P5 (1-3))[27].

41.By way of reference screen capture 1 (exhibit P5) shows Ms Wong sat down at the table, Ms Gertos standing next to the table and D1 walking towards Ms Gertos[28].

42.Ms Gertos testified about what happened when D1 went to the restaurant.  Clips from the CCTV footage were played to Mr Ambekar, Ms Gertos and Ms Wong. 

43.The following is a summary of the CCTV footage together with the evidence of the prosecution witnesses[29]. Unless otherwise stated the CCTV footage was played in court to one or more of the prosecution witnesses. 

Cam 02 - 19:47:05-19:47:26 (real time 00:17:05-00:17:26) and 19:48:00-19:48:27 (real time 00:18:00-00:18:27)

44.The CCTV footage shows D1 entering Alvy’s and walking around the bar area and cash register.  Ms Gertos testified she did not know what D1 was doing.

Cam 01 - 19:53:00-19:54:03 (real time 00:23:00-00:24:03)

45.The CCTV footage first shows Ms Wong sitting down at a table talking to D1.  D1 then walks to the table nearest the lockers and picks up what appears to be some keys, looks at some papers and then puts the keys back on top of the paper and walks towards the table where Ms Wong is sitting.  Ms Gertos is seen handling the cash register.  

46.Ms Gertos testified that she was returning the cash to the drawer while D1 was walking round.  Ms Gertos did not know what D1 was doing.

Cam 01 - 19:54:54-19:55:07 (real time 00:24:54-00:25:07)

47.D1 is seen walking towards the table nearest the lockers and picking up some keys from the table which she holds up to show Ms Wong and Ms Gertos[30]. 

48.Ms Gertos testified that they were her keys and comprised of three keys: one for her own locker, one for the money locker and a key for the locker of another staff member which key had been returned to her. 

49.Ms Wong testified that she was playing with her phone and therefore did not pay attention to what D1 was doing.  In cross-examination Ms Wong agreed that the CCTV footage showed her staring straight ahead[31].

Cam 03 - 19:55:00-19:55:45 (real time 00:25:00-00:25:45)

50.D1 is first seen trying to open the money locker.  Ms Gertos said that if D1 had picked up her keys she did not know why D1 could not open the money locker. About 30 seconds later D1 is seen opening the money locker and taking out three bags from the locker. 

51.Ms Gertos testified that she did not ask D1 to do this.  D1 did however tell Ms Gertos she was going to do this and Ms Gertos allowed D1 to do so.

52.The CCTV footage Cam 01 between 19:55:43 and 19:56:04 (real time 00:25:43-00:26:04) shows D1 taking the bags to the table where Ms Wong was sitting, putting the bags on a stool and looking in one of the bags and between 19:57:15 and 19:58:30 (real time 00:27:15-00:28:30) shows D1 looking in one of the bags and watching Ms Gertos put money in the bags after which D1 takes the bags back to the money locker[32].

53.Mr Ambekar testified that the policy of Alvy’s was that they always welcome staff to return to the restaurant but they were not permitted to touch the cash revenue or step inside the bar area.  In cross-examination Mr Ambekar said that he did not know if D1 was aware of this policy because he was not the person who hired D1 and that D1 did not hand her resignation in to him. 

Cam 03 - 19:58:23-19:59:03 (real time 00:28:23-00:29:03)

54.D1 is seen putting the three bags back in the money locker and attempting to lock the money locker.  Ms Gertos said there was no problem locking the money locker.

55.The CCTV footage Cam 01 between 19:59:00 and 19:59:12 (real time 00:29:00-00:29:12) shows D1 putting the keys on the table; between 19:59:40 and 19:59:43 (real time 00:29:40-00:29:43) shows Ms Gertos moving the keys and between 20:05:03 and 20:05:15 (real time 00:35:03-00:35:15) shows Ms Gertos picking up the keys and appearing to put them in her rucksack[33].

Cam 03 - 20:27:39-20:28:24 (real time 00:57:39-00:58:24)

56.Ms Gertos testified D1 is seen in the area of the lockers using her mobile phone.

Cam 02 - 20:30:00-20:30:22 (real time 01:00:00-01:00:22)

57.D1 is seen walking out of the restaurant.  Ms Gertos testified that she did not notice D1 leave and D1 did not tell her she was leaving.   

Cam 02 - 20:41:03-20:42:06 and 20:42:28-20:43:41 (real time 01:11:03-01:12:06 and 01:12:28-01:13:41) and Cam 03 - 20:42:20-20:42:46 (real time 01:12:20-01:12:46)

58.The CCTV footage first shows Ms Gertos and Ms Wong leaving the restaurant.  Ms Gertos testified they saw D1 outside.  D1 having left her jacket and belongings inside the restaurant went back inside the restaurant together with Ms Gertos.

59.The CCTV footage next shows Ms Gertos and D1 turning off the air conditioning, lighting and music.  When asked by the court why she had earlier left before everything had been turned off Ms Gertos explained that when she was on the way out she noticed D1 had left her belongings in the restaurant and therefore she went outside to look for D1. 

60.Ms Gertos then locked the main door of the restaurant.  Ms Gertos explained that she kept the key to the main door of the restaurant on a different key ring to the keys for the lockers. 

20:48:21 and 21:01:50 (real time 01:18:21-01:31:50)

61.The CCTV footage shows D1 going back inside the restaurant two more times.  Ms Gertos testified that the first time was when D1 said she wanted to go to the toilet (Cam 02 between 20:48:21-20:49:05 (real time 01:18:21-01:19:05). Ms Gertos therefore gave D1 the key to the main entrance of the restaurant.  D1 had difficulty opening the door.  Ms Gertos explained that there was a technique to opening the door therefore she opened the door for D1. 

Cam 03 - 20:49:16-20:53:19, 20:54:39-20:54:53 and 20:55:29-20:55:37 (real time 01:19:16-01:23:19, 01:24:39-01:24:53 and 01:25:29-01:25:37) and Cam 02 - 20:53:39-20:54:26 (real time 01:23:39-01:24:26)

62.Whilst inside the restaurant both D1 and Ms Gertos went to the toilet. After going to the toilet Ms Gertos saw D1 standing using her cell phone.  When Ms Gertos told D1 to move fast and asked what she was doing D1 told Ms Gertos to leave first. Ms Gertos replied, “That cannot be because you don’t work here anymore.” D1 again urged Ms Gertos to leave first saying “Just Go because Gee has a problem.”  Ms Gertos replied, “No, No, I cannot leave.  I cannot leave you here.”  In cross-examination Ms Gertos agreed she never told the police about this conversation.

Cam 02 - 20:55:40-20:56:44 (real time 01:25:40-01:26:44)

63.Both Ms Gertos and D1 left the restaurant.  Ms Gertos testified that D1 tried to close the door.  D1 told Ms Gertos to leave first because she might miss the bus.  Ms Gertos replied no and said they should leave together. 

Cam 02 - 20:58:56-20:59:12 (real time 01:28:56-01:29:12)

64.D1 entered the restaurant again.  Ms Gertos testified D1 told her she was going inside but she did not know what D1 was going to do.

Cam 03 - 20:59:14-21:00:23 (real time 01:29:14-01:30:23)

65.Ms Gertos said that D1 went to the back and turned on the light of her mobile phone to look for something.  D1 looked in the drawer where towels, cloths, plates, spoons and forks were kept. 

Cam 02 - 21:00:00-21:01:50 (real time 01:30:00-01:31:50)

66.D1 left the restaurant.  Ms Gertos testified that on seeing D1 closing the door she turned round and went in the direction of the bus.  Ms Gertos confirmed that the CCTV footage showed that she walked away before the door was closed.  Ms Gertos said that she did not go back to check whether the door was locked.  D1 told her the door was locked and gave her back the key.  In answer to the court Ms Gertos said she did not check the door because she trusted D1 and did not realise she would not close the door.[34]

67.D1 and Ms Gertos then ran for the 5B bus which they travelled on together. 

Burglary

68.Admitted in evidence is that at around 2:51 a.m. on 27 November 2019, D2 and Mariano Gerard B entered and burgled Alvy’s and left at around 2:54 a.m.[35].   The burglary was also captured on CCTV. 

69.Admitted in evidence is that the CCTV captured D2 and Mariano Gerard B entering and burgling the restaurant[36]. One screen capture from the CCTV footage showing the burglary has also been admitted in evidence (exhibit P5 (4)) [37].

70.Clips from the CCTV footage of the burglary were played to Mr Ambekar, Ms Gertos and Ms Wong.  The following is a summary of the CCTV footage and the evidence of the witnesses. 

Cam 02 - 22:21:23-22:21:36 (real time 02:51:23-02:51:36)

71.The CCTV footage shows the two burglars entering Alvy’s.  When asked if they recognise either of the burglars Ms Gertos replied “No, I am not sure who is who” and Ms Wong replied “I do not”.[38] 

Cam 03 - 22:21:00-22:22:07 (real time 02:51:00-02:52:07)

72.The CCTV footage shows the two burglars attempting to open the money locker.  The money locker could not be opened with a key and was forced open by one of the burglars who took the three bags containing the money out of the money locker.

73.Asked if he recognised the burglars Mr Ambekar replied yes and said one was called Alex Limbu, who was not a member of staff and who he had not seen in the restaurant before. 

74.At the end of cross-examination Miss Zahir played the CCTV footage from Cam 02 showing the burglars enter Alvy’s.  When asked if he knew any of the two men when he first saw the CCTV footage after the burglary Mr Ambekar replied, “No.  It was after co-operating with the police officers that we were able to identify them.”

75.In answer to court Mr Ambekar clarified that at the time of seeing the CCTV footage they had their suspicions of who the burglars were but did not know who they were exactly because the face was covered up; he had never seen Alex Limbu before; the name of Alex Limbu was given to him by the police and that after repeated viewing of the CCTV footage he recognised one of the burglars was the boyfriend of D1 by his clothing and the way he walks[39].

Facebook messages

76.The prosecution relies on a series of Facebook messages sent to the mobile phone of Ms Gertos (exhibit P2) which messages the prosecution say were sent by D1 and in which D1, inter alia, says that her boyfriend Gee (Mariano Gerard B) planned to take the money and did take the money; she changed the key for the money locker; asked Ms Gertos not to tell the truth and not to tell anybody she had visited Alvy’s and that she would waive the debt of $1,500 Ms Gertos owed her and pay Ms Gertos an extra $1,000 if she did not say anything. 

77.Ms Gertos testified that after receiving all the messages she screenshot the messages then deleted the messages[40]. After seizing the mobile phone of Ms Gertos the police took photographs of the eight screenshots (exhibit P12C) [41].

78.There are eight screenshots (exhibit P12).  Each screenshot is accompanied by a separate two-page certified translation (exhibits P12A & P12B)[42].  The screenshots and the certified translations are not page numbered.  The parties agreed the sequence of the screenshots and the certified translations.  The agreed sequence of the screenshots is the same sequence as the sequence of the photographs of the screenshots taken by the police (exhibit P12C)[43]. 

79.The screenshots show the times of 3:36 PM, 3:37 PM and 3:38 PM (the same times as shown in the photographs exhibit P12C).  The certified translations (exhibit P12B) show the times of all the screenshots as 3:36 PM except screenshots 5 and 7 where no time is stated.  This error in the certified translation was pointed out to the parties during the evidence[44].

80.The messages on the left in grey were received by Ms Gertos and the messages on the right in blue were sent by Ms Gertos.  The certified translations follow the format of the messages with messages received by Ms Gertos on the left and the messages sent by Ms Gertos on the right.

81.The following is a summary of the messages and the evidence of Ms Gertos regarding the messages[45].

82.Ms Gertos testified that at around 2:30 p.m. on 27 November 2019 she woke up and saw on her telephone (exhibit P2) that there was a message on Facebook from D1, Ms Gertos recognising the profile photograph and the name of D1.  The message had been sent at 4:23 a.m. 

83.Ms Gertos was then asked what was the message she read.  At this stage Ms Gertos had not been shown the screenshots and was recalling from her memory what was in the message. 

84.Ms Gertos replied that D1 said her boyfriend Gee and a friend would do a burglary at the restaurant; Gee and the friend had taken the money because they needed money; Ms Gertos did not need to pay the money she owed D1 and that D1 would add $1,000 extra. 

85.At this stage the court enquired whether the prosecution intended to adduce in evidence the messages.  The court having indicated that evidence was not simply a memory test (the messages having been received by Ms Gertos on 27 November 2019 almost twenty-one months earlier), Mr Sujanani referred Ms Gertos to the screenshots (exhibit P12)[46]. Ms Gertos identified the messages and the profile photograph and the name of D1, Chevie Rebong Francisco, on the screenshots of the messages. 

86.The message sent at 4:23 a.m. asks to meet for lunch before Ms Gertos goes to work saying “It’s important.”  Ms Gertos responded at 2:14 p.m. saying she had just woke up.  The screenshots then show a series of messages commencing at 2:30 p.m.

First screenshot

87.The first screenshot refers to D1 saying she changed Ms Gertos’s key for the money locker[47]. Ms Gertos testified that when she went to work she tried the locker and her key opened the money locker[48]. Ms Gertos said that she could not open her personal locker[49].  

88.Ms Gertos then identified her keys (exhibit P3).  Admitted in evidence is that on 1 December 2019 the police seized the keys from Ms Gertos[50].  

89.With reference to photograph 15 (exhibit P4), Ms Gertos said the key with No.10 was the key for her personal locker and the other two keys were for the money locker and the personal locker of another member of staff but could not remember which key was for the money locker.

90.Asked if she checked her personal locker after the burglary Ms Gertos replied “What I know is it was already lost”.  Asked by the court to clarify “...already lost”, Ms Gertos replied “I could not open anymore my own locker”.  

91.Asked if she opened her personal locker with all three keys Ms Gertos replied she tried all three keys but could not open her personal locker and that she last recalled opening her personal locker the night before around 12 when getting her things from the locker. 

92.Ms Gertos explained that when she could not open her personal locker she asked Mr Ambekar for another key and that Mr Ambekar gave her the key with No 10 on.In cross-examination Mr Ambekar said he vaguely remembered after the burglary Ms Gertos saying that she did not have a key to her personal locker and asked to borrow a spare key to open her locker.

93.Ms Gertos said she did not remove her locker key from the key ring.  Asked how many keys were on the key ring when she went to work Ms Gertos replied two. Asked by the court to clarify whether two keys or three keys Ms Gertos replied,“I’m sorry.  I have only two keys.  One for a locker and one for where the money is.  That’s what I remember.  Sorry I’m confused about the truth.”  

Second screenshot

94.Ms Gertos said Saheb mentioned in the message (line 16) is a reference to Mr Ambekar[51]. Ms Gertos said that she understood from the message that she was not to tell Mr Ambekar the truth that D1 had switched her key and to say she forgot the key at home[52]. When giving this answer Ms Gertos said “I remember that I think I called her, but I said it cannot be that it will not be seen on CCTV.”  When asked what she was referring to when she said “seen on the CCTV”, Ms Gertos replied that D1 had told her that at that time they had already gone home and it will be seen the burglars had a key.  Ms Gertos said she called D1 when she was walking to work after receiving the messages[53].

95.Later in evidence Ms Gertos said that when she called D1 she asked D1 “Why did you do this?” and “I will be in trouble with what you did.”  D1 said that they will see on the CCTV that they had already gone home and that the person who entered had a key.  Ms Gertos was angry with D1 and said “You cannot say that I should not speak”.  Ms Gertos said the phone call lasted around 30 minutes and that was the last time she spoke to D1.  Ms Gertos did not receive any other messages from D1 or meet D1 again[54].

96.Ms Gertos explained the reference to “you don’t have to pay me back the $1,500” was a reference to money she owed D1 for buying her a ticket to go home to the Philippines. 

97.Ms Gertos understood “I can give you extra $1,000 more” was that she would be given $1,000 if she did not say anything and that all she had to do was just say that she forgot her key at home and cash out went normally[55].  Later in evidence Ms Gertos said that she never received $1,000 from the defendant[56].

Third screenshot

98.The message in the screenshot is a continuation of the message received by Ms Gertos in the second screenshot saying that nothing will happen if Ms Gertos plays along as well and repeats that Ms Gertos will be given $1,000 and she does not have to repay the $1,500.

99.Ms Gertos responds asking D1 why she had to do that and how much did she get.  At the end of her message Ms Gertos said she will get the blame. 

100.Ms Gertos said Alex referred to in the message sent by her was a bar tender at Alvy’s called Alex Gurung who worked on the night of 26 November 2019.

Fourth screenshot

101.In the messages D1 says why Ms Gertos will not be in trouble and asks Ms Gertos to trust her and repeats why Ms Gertos has to say she forgot her key.  Ms Gertos again understood from the message she was to say she forgot her key at home. 

Fifth screenshot

102.D1 continues to explain why Ms Gertos will not be in trouble and repeats that Ms Gertos just has to say she forgot her key.  When Ms Gertos again asks D1 how much she got D1 replies everything that was in the locker and repeats that she will give Ms Gertos $1,000 and waive the $1,500 if she promises to do her part and say she forgot her key.

103.Ms Gertos was not asked any questions about the messages in this screenshot. 

Sixth screenshot

104.After saying they can talk later D1 repeats that Ms Gertos just has to do her part and repeats why Ms Gertos will not get into trouble. 

105.Ms Gertos said she did talk later to D1[57].

Seventh screenshot

106.After Ms Gertos again asks why D1 did such a thing D1 repeats that she will give Ms Gertos $1,000 and that Ms Gertos does not have to pay back the $1,500.   D1 goes on to say that if Ms Gertos is asked where the money is she was to say she did not know because when she cash out the money was there and not to mention D1 dropped by. 

107.Ms Gertos understood from the messages that if Mr Ambekar asked her where the money was she was to say she did not know; the money was there when she cash out the night before and that she was not to say D1 dropped by.   

Eighth screenshot

108.After D1 said this would not lead back to Ms Gertos, Ms Gertos replied “Bro why. I trust you and then this is what you did.” D1 again says she will give Ms Gertos $1,000 and that Ms Gertos did not have to pay her back.  D1 continued to say that she was flat broke and that she trusted Ms Gertos with this big information and not to tell anyone but if they know it was her it means Ms Gertos told them something.

109.Ms Gertos understood from the message that D1 trusted her not to say anything. 

Reporting the burglary

110.Ms Gertos testified that when she arrived at work she went to the money locker and discovered that the money locker was open and saw the three bags containing the money were missing.  Ms Gertos immediately telephoned Mr Ambekar.   Mr Ambekar, who was not in the restaurant at that time, told Ms Gertos not to touch anything[58]. In cross-examination Ms Gertos agreed that when she went to work that afternoon she did not see any damage on the main door entrance. 

111.Ms Gertos, remembering Francisco (D1) had mentioned something in the messages that she had switched the key, checked her keys to see if they could open the money locker. Ms Gertos said the two keys she was holding were wrong, they were not her keys anymore and that she was able to prove the key to her own locker was what D1 got.

112.Ms Gertos testified that when she arrived at the restaurant she was confused and did not know what to do[59]. When Mr Ambekar arrived at the restaurant he asked Ms Gertos what happened.  Ms Gertos said she did not know.  Mr Ambekar then asked Ms Gertos if she was sure.  Ms Gertos replied “No, not really”.  Mr Ambekar then called the police.  

113.Ms Gertos said she was scared and lied to Mr Ambekar because she did not know what to say and therefore covered up for D1[60]. When asked what she was scared of Ms Gertos replied because of the messages she did not know what to do and repeated that she was confused.

Recovery of stolen property

114.Admitted in evidence is that on 2 December 2019 DPC 22336 searched the home of Mariano Gerard B and seized a grey shoes box (exhibit P6) containing a transparent bag with a red zipper (exhibit P7) containing two plastic bags with $1 coins (exhibit P8); one plastic bag containing $2 coins (exhibit P9) and a card with TIPS written on (exhibit P10)[61].

115.Also admitted in evidence is that DPC 22336 took fifteen photographs relating to the case including photographs of items seized[62]. DPC 22336 testified that the grey shoe box was found in the wardrobe as shown in photograph 9 and that the contents of the grey shoe box are shown in photographs 10-14.  DPC 22336 said that he counted the coins which totalled $400.

116.Ms Gertos identified the transparent bag with a red zipper (exhibit P7) as the bag where she put the money and said that the bag was taken in the burglary.  Ms Gertos also identified the card with TIPS written on (exhibit P10) which Ms Gertos said is put inside the transparent bag with a red zipper (exhibit P7). Ms Gertos also pointed out that one side of the card states “Cash Bank”[63].  Both Ms Gertos and Mr Ambekar identified the plastic bags containing the coins by reference to photograph 13 and said that the coins were stolen in the burglary.

Retrieval of the messages

117.Admitted in evidence is that DPC 11891 seized the mobile phone of Ms Gertos at 6 p.m. on 30 November 2019 and at 7:30 p.m. on the same day passed the mobile phone to DPC 22336 for safe keeping[64]. Also admitted in evidence is that the correct procedures were followed in the seizure of the mobile phone and that the chain of evidence in respect of the mobile phone was unbroken[65].

Ms Gertos

118.Ms Gertos testified that she lied to the police when giving her witness statement on 29 November 2019.  Ms Gertos explained that she really made a mistake and regretted lying to the police.  Ms Gertos said she did not understand why she was fearful.   Ms Gertos also said that because she also really trusted D1, who she treated like her sister, she could not understand why D1 and her boyfriend did this.

119.Ms Gertos testified that she was arrested the following day, 30 November 2019, for lying to the police.  The police said they would take another statement from her.  The next day, 1 December 2019, Ms Gertos was interviewed on video during which she gave the police the password to her mobile phone and with the help of the police retrieved the screenshots[66].

DPC 22336

120.DPC 22336 gave evidence that Ms Gertos provided the password on 30 November 2019, the day before the video interview[67].

121.DPC 22336 testified that Ms Gertos indicated to him that there were some screenshots of messages on her mobile phone which related to the case.  Ms Gertos provided her password to unlock her phone and showed DPC 22336 the screenshots.  In answer to the court DPC 22336 said this occurred after Ms Gertos had been arrested and while waiting for an interpreter to arrive at the police station. 

122.DPC 22336 used a government camera to take photographs of the screenshots.  DPC 22336 took eight photographs of the screenshots and two photographs showing details of the mobile phone (exhibit P12C) [68]. Asked when this took place DPC 22336 said 11:15 p.m. on 30 November 2019. 

123.After taking the photographs DPC 22336 printed out copies for the purpose of investigation.  DPC 22336 then switched off the mobile phone which was then kept as an exhibit.  In answer to the court DPC 22336 said that he used the eight photographs of the screenshots when interviewing Ms Gertos on 1 December 2019[69]. 

124.In cross-examination DPC 22336 agreed that Ms Gertos was not present when the photographs were taken.  DPC 22336 agreed that he made three witness statements on 22 July 2020; 22 July 2021 and 26 August 2021 (Day 4 of the trial) and a running investigation report and that he only mentioned the taking of photographs in his second and third statements. 

125.DPC 22336 agreed that in order to take the photographs of the screen captures he had to go into the recently deleted folder in the photo application of the phone and agreed that he did not document in his witness statements or investigation report that he had taken the photographs by going into the recently deleted folder. 

126.In cross-examination DPC 22336 agreed that in the video recorded interview Ms Gertos recovered the eight screenshots from her mobile phone from the recently deleted folder.  DPC 22336 explained this was not recorded in his witness statements or the investigation report because since this was a video recorded interview where all his movements and instructions and those of Ms Gertos were recorded both orally and visually he would not type out what happened in the interview.

WSDPC 18981

127.On 16 January 2020 DPC 22336 retrieved the mobile phone of Ms Gertos from the exhibit room and the next day delivered the phone to the Cyber Security and Technology Crime Bureau for forensic examination.  The examination was conducted by WSDPC 18981 (PW5).

128.WSDPC 18981 gave expert evidence on the forensic examination of the mobile phone of Ms Gertos[70]. In summary WSDPC 18981 testified that she was mainly tasked to find Facebook messages, WhatsApp messages and photographs related to the case. 

129.Having been provided with the password by the police WSDPC 18981 accessed the mobile phone of Ms Gertos using a forensic software called Cellebrite from which she extracted data from the phone. 

130.In cross-examination WSDPC 18981 said that if photographs had been deleted from the recently deleted photo folder her experience was that Cellebrite could not recover those deleted photographs. 

131.In answer to the court WSDPC 18981 said that the eight screenshots were recovered from a folder (PCMI) and that she believed that the photographs could have been recovered without the need to use Cellebrite but she had not looked at the photo album on the phone. 

132.DPC 22336 testified that on 7 February 2020 he went to the Cyber Security and Technology Crime Bureau when WSDPC 18981 showed him the content of the mobile phone.  DPC 22336 saw eight screenshots from Facebook Messenger which had been retrieved from the photo folder on the mobile phone.  In answer to the court DPC 22336 said he viewed the screenshots on a monitor and not directly from the phone. 

133.After DPC 22336 viewed the data and selected the data relevant to the case WSDPC 18981 burnt the data onto a CD.  DPC 22336 was then provided with a DVD containing the eight screenshots from which he printed out copies of the screenshots (exhibit P12)[71]. Both DPC 22336 and WSDPC 18981 identified in court the eight screenshots from the CD/DVD[72].

134.DPC 22336 said he did not tamper with any of the screenshots. 

Defence evidence

135.In summary D1 testified that she is 25, a Hong Kong permanent resident who came to Hong Kong from the Philippines when she was aged 2.  D1 is a university graduate having obtained a diploma.

136.D1 lives with her parents in Kennedy Town together with her 1-year-old daughter who was born on 30 July 2020.  The father of the child is Gerard Bravo Mariano.  D1 described her financial situation as stable.  D1 was a stay at home mum.  D1’s parents, who were both working, provided financial support so D1 could stay at home and look after her daughter. 

137.Prior to the birth of the daughter D1 had worked as a bar tender in the Ovolo Hotel earing $16,500 per month.   

Gerard Bravo Mariano

138.D1 testified that she was no longer together with her boyfriend Gerard Bravo Mariano having broken up with him in March 2020.  In her evidence D1 referred to her boyfriend as Gerard. 

139.D1 first started dating her boyfriend in February 2017.  After a month they separated.  In July 2017 they got back together again until November 2018 when they broke up again.  The relationship started again at the end of July 2019.

140.D1 described the relationship as very normal in the beginning but after getting back together in July 2019 the relationship became very toxic and she did not feel safe.  Gerard accused her of being mentally ill and became very possessive.  He started going through her mobile phone and going to Alvy’s nearly every day staying there until she finished her shift and cashing out.

141.Most of the time there would be arguments leading to physical fights.  The major argument was over D1 having slept with somebody else during their separation. D1 said she had never told her boyfriend about sleeping with somebody else and that he could only have found this out by going through her phone and reading the conversations with her sister. 

142.D1 would also see her boyfriend going through her phone when she woke up in the middle of the night.  D1 said her boyfriend knew the password to her phone and later in evidence said that apart from her boyfriend no one else had access to her phone.  When D1 confronted her boyfriend about going through her phone he denied at first and only after pushing him for a few months did he admit he went through her phone.  In cross-examination D1 said she did not change the password because she did not want to get in an argument, so she just let it be. 

143.Gerard was unemployed therefore D1 would pay his expenses including most of his rent and any food and drink he consumed in Alvy’s. 

144.Gerard did not like Alvy’s because D1 spent a lot of time working there and always talked about work with him which would lead to them having arguments.  D1 thought Gerard was jealous that she spent time with her colleagues. 

145.When asked whether Gerard was honest D1 told the court about an occasion when he told her he had a photograph of her credit card which he used for emergencies and when he lied to her about having found a job.  

146.D1 said she communicated with her boyfriend in English and that her boyfriend’s Tagalog was much better than hers. 

Alvy’s

147.D1 had worked at Alvy’s for two years starting in October 2017.  D1 said she really liked working in Alvy’s and got on well with the other staff.  Sometimes they would go out for drinks together and have staff parties. 

148.Initially D1 would serve customers, make drinks and create new drinks for the menu.  In February 2019 D1 started cashing out.  The general manager had left leaving only Mr Ambekar responsible for cashing out.  D1 therefore volunteered to learn and help in cashing out as she wanted to grow in Alvy’s. 

149.D1 had three keys: one for her personal locker; one to the money locker and one for the main entrance.

150.D1 did the cashing out until she stopped working in Alvy’s.  When cashing out her boyfriend would sit opposite her and could see everything she did. 

151.D1 resigned in October 2019 because Mr Ambekar banned her boyfriend from going to Alvy’s.  D1 said she could not continue to work there when someone she cared about was not allowed to go and visit.  

152.In a nearby Starbucks D1 told Mr Kingston, the operations manager, she was resigning.  D1 had intended to talk to Mr Kingston about Mr Ambekar banning her boyfriend from going to Alvy’s however she decided to resign instead. 

153.D1 then returned to Alvy’s and collected her stuff from the locker and returned the keys to Ms Gertos.  On the way to Alvy’s D1 telephoned her boyfriend.  Gerard was shocked when she told him she had resigned because the night before she had told him she was going to meet Mr Kingston but not that she was going to resign.  Gerard had hoped Mr Ambekar would be fired.   

Mr Ambekar

154.D1 referred to Mr Ambekar in evidence as Saheb.  D1 said she was pretty close to Saheb describing their relationship like brother and sister.  D1 shared most of her personal life with Saheb including her relationship with her boyfriend. 

155.After D1 got back together with her boyfriend in July 2019 the relationship with Saheb became more distant.  The boyfriend had shared with her how he disliked Saheb saying he hated him.  D1 therefore could not talk to Saheb as usual because her boyfriend was always in Alvy’s watching her.

Ms Gertos

156.D1 referred to Ms Gertos in evidence as Grace or Mary Grace.  D1 first came to know Grace when working in Bubba Gump and that when working in Alvy’s they became really close friends.  D1 said she would share with Grace nearly everything about her personal life.  Grace knew most of the things about her boyfriend because Grace was one of the only people she could talk to about her relationship with her boyfriend. 

157.D1 says she usually communicated with Grace in Tagalog with a mix of English. Grace would mostly use Tagalog whereas D1 would mostly use English.  D1 said her mother tongue was English.  D1 regarded her Tagalog as alright but poor in grammar.

158.When communicating by phone with Grace D1 would mostly use English with a little bit of Tagalog.  Text messages would be by WhatsApp and that she did not use Facebook messenger much.   The only time she would use Facebook messenger was if Grace did not reply by WhatsApp.

27 November 2019

159.D1 testified she went to Alvy’s to see Grace because she had not seen her since quitting Alvy’s and to ask about the $1,500 she owed her.  D1 said she asked Grace about the money when they were at the bus stop going home.  D1 explained she did not ask inside Alvy’s because Rowena (Ms Wong) was there and she thought it would be awkward to ask in front of Rowena.

160.D1 said the $1,500 was to help Grace buy a plane ticket to the Philippines.  D1 said she had lent money to Grace two or three times.  Grace was not good at paying back, always postponing payment whereby D1 had to chase her about it. 

161.D1 described what happened while she was at Alvy’s after which she was played various clips from the CCTV footage.  The following is a summary of D1’s evidence with reference to the CCTV footage played to her.

Cam 02 - 19:48:23-19:48:30 (real time 00:18:23-00:18:30)

162.After greeting Grace and Rowena, Grace poured her a beer.  When the CCTV footage was played D1 said she was just looking around and that she went behind the bar to pour a beer.   

Cam 01 - 19:48:40-19:49:05 (real time 00:18:40-00:19:05)

163.D1 said she went to the back of the restaurant to charge her mobile phone. 

Cam 01 - 19:53:30-19:54:06 (real time 00:23:30-00:24:06)

164.D1 said she was looking at some papers on the table in the last booth but could not remember what the papers were.  D1 is seen picking up some keys.  Asked why she picked up the keys D1 said this was just a random gesture and that she put the keys back from where she found them. 

Cam 02 - 19:54:12-19:55:03 (real time 00:24:12-00:25:03)

165.D1 says she was standing by the POS system having a normal conversation with Grace while Grace entered the sales for the day and returned the cash register.

Cam 01 - 19:54:58-19:55:54 (real time 00:24:58-00:25:54) and Cam 03 - 19:55:05-19:55:48 (real time 00:25:05-00:25:48)

166.The CCTV footage shows D1 holding up some keys she picked up from the table in the last booth[73].

167.D1 said she offered to help Grace speed up with the cashing out so that they could all sit down, relax and catch up.   She asked Grace where the keys were to the money locker.  After Grace told her she proceeded to open the money locker. When she could not open the money locker she double checked with Grace whether she had the right key.  Realising she had used the wrong key D1 was then able to open the money locker after which she took out the bags and brought them to the table where Grace and Rowena were sitting.

Cam 01 - 19:55:53-19:58:28 (real time 00:25:53-00:28:28) and Cam 03 - 19:58:29-19:59:01 (real time 00:28:29-00:29:01)

168.After Grace put the money and the receipts, sales and tips in the bags D1 returned the bags to the money locker and closed the money locker and took out the key.   

Cam 01 - 19:58:58-19:59:13 (real time 00:28:58-00:29:13)

169.D1 returns the keys to Grace by putting them on the table where Grace was sitting.    

Cam 01 - 20:02:32-20:02:48 (real time 00:32:32-00:32:48)

170.After returning the keys they drink and chat a bit. The CCTV footage shows D1 having a chat with Rowena. 

Cam 01 - 20:24:31-20:25:25 (real time 00:54:31-00:55:25)

171.D1 said she went behind the bar to pour a beer.  D1 explained that because she was ex-staff she knew what to do and that before pouring the beer she had asked Grace who did not object. 

Cam 03 - 20:25:33-20:25:44 (real time 00:55:33-00:55:44); 20:27:38-20:28:22 (real time 00:57:38-00:58:22) and 20:29:07-20:29:29 (real time 00:59:07-00:59:29)

172.D1 said in all three clips she was sending text messages to her boyfriend because he kept on messaging her asking what she was doing and who she was with.  D1 assumed he thought she was with Saheb.  Earlier in evidence D1 said she had told her boyfriend, who was at home at the time, that she was going to Alvy’s to ask Ms Gertos about the money. 

173.D1 said she could not ignore the messages because she did not know what he would do.  D1 explained that previously when she ignored his messages he went to Alvy’s to find her and the staff had to pretend the restaurant was closed and she was not there.  D1 was afraid because he had had screamed at her and hurt her before. 

174.Between 20:29:07-20:29:29 (real time 00:59:07-00:59:29) D1 is seen touching a locker.  D1 explained that was her locker when she worked at Alvy’s and that she just checked to see if the locker was open.  D1 said she did not know why she did this and just ended up asking Grace who was using her locker. 

Cam 01 - 20:29:33-20:30:01 (real time 00:59:33-01:00:01) and Cam 02 - 20:30:03-20:30:25 (real time 01:00:03-01:00:25)

175.Because her boyfriend kept messaging her D1 decided to go outside and call him.  The CCTV footage shows D1 getting a cigarette from her jacket and going outside. D1 says she did not know the two people seen outside the door but they may have asked her if the restaurant was open or she complemented them on their dog.  D1 called her boyfriend who questioned her non-stop about what she was doing and why she was really there.

Cam 02 - 20:41:03-20:41:55 (real time 01:11:03-01:11:55)

176.The CCTV footage shows Ms Gertos and Ms Wong leaving the restaurant.  D1 says she was still talking on the phone to her boyfriend so she ended the call and went back inside the restaurant because she had left some stuff inside. 

Cam 01 - 20:41:56-20:42:56 (real time 01:11:56-01:12:56) and Cam 03 - 20:42:23-20:42:48 (real time 01:12:23-01:12:48)

177.D1 collected her jacket and helped turn off the lights and the music. 

Cam 02 - 20:42:56-20:43:44 (real time 01:12:56-01:13:44)

178.After turning off the lights D1 left the restaurant together with Grace.  After Grace locked the door the three of them left.  Rowena went her own way.  D1 and Grace walked to the bus stop.  On the way D1 said she wanted to go to the toilet therefore they walked back to the restaurant.  D1 said she had also forgotten her charger. 

Cam 02 - 20:48:20-20:49:01 (real time 01:18:20-01:19:01)

179.D1 is trying to open the door to Alvy’s but is unable to do so therefore Grace helped to open the door.   

Cam 03 - 20:49:08-20:49:33 (real time 01:19:08-01:19:33)

180.D1 puts her mobile phone on the table, turns on the lights and goes to the washroom. 

Cam 03 - 20:52:22-20:53:17 (real time 01:22:22-01:23:17)

181.After going to the toilet D1 picks up her mobile phone and uses the flashlight to look for the charger and also checks whether there were any messages from her boyfriend.  In answer to the court D1 clarified by charger she was referring to the charging cable. 

Cam 01 - 20:53:17-20:53:30 (real time 01:23:17-01:23:30) Cam 02 - 20:53:38-20:53:54 (real time 01:23:38-01:23:54)

182.D1 says she was looking at her mobile phone because her boyfriend had messaged her asking where she was. 

Cam 02 - 20:53:38-20:53:54 (real time 01:23:38-01:23:54); Cam 01 - 20:53:50-20:55:13 (real time 01:23:50-01:25:13) and Cam 03 - 20:54:35-20:54:55 (real time 01:24:35-01:24:55)

183.The CCTV footage shows D1 on her mobile phone.  D1 says she called her boyfriend asking whether she had left one of her stuff at his place.  D1 could not remember what that stuff was.  The boyfriend said she was crazy because he could not find it at home.  The conversation was leading to an argument therefore she kept her distance from Grace because she did not want Grace to overhear their conversation and see her arguing with her boyfriend.

184.When the boyfriend asked what time she would get home D1 told him that she was leaving Alvy’s with Grace. 

Cam 01 - 20:55:21-20:55:47 (real time 01:25:21-01:25:47) and Cam 03 - 20:55:29-20:55:39 (real time 01:25:29-01:25:39)

185.D1 is checking her mobile phone to see if she had any messages from her boyfriend. D1 also turns off the lights to the washroom. 

Cam 02 - 20:55:49-20:59:08 (real time 01:25:49-01:29:08))

186.D1 says she is messaging her boyfriend that she is going to leave.  Once outside the restaurant D1 asks Grace if she wanted to go to her boyfriend’s place in Wanchai where there is a rooftop.  D1 therefore calls her boyfriend to ask if Grace could come but the boyfriend was not OK with this.

187.D1 is seen in the CCTV footage going back inside the restaurant.  D1 says she felt like she had forgotten something.  D1 remembered she had a card for working at the Ovolo Hotel and she was not sure if she had brought the card with her to Alvy’s or left the card at her boyfriend’s place.    

Cam 03 - 20:59:15-21:00:27 (real time 01:29:15-01:30:27)

188.The CCTV footage shows the defendant apparently looking for something with the flashlight of her mobile phone.  D1 said she went to the back to look for something but could not remember what she was looking for and was really not sure why she opened the cupboard where the restaurant plates, towels, aprons and application forms are kept.  D1 says she was also checking her phone because her boyfriend had sent a lot of messages. 

Cam 01 - 21:00:20-21:00:30 (real time 01:30:20-01:30:30) and Cam 02 - 21:00:30-21:01:49 (real time 01:30:30-01:31:49)

189.On reaching the door D1 asked Grace to walk ahead so she did not miss the bus.  D1 locked the door because she already had the key.  After locking the door D1 ran to Grace and gave her the key straight away. 

190.Both D1 and Grace got on the 5B bus and went home.  D1 says she got off the bus after 15-20 minutes and that Grace had got off earlier.  D1 went to her boyfriend’s place in Wanchai.  D1 did not return home to Kennedy Town because she had told her boyfriend she would go back to his place as the next day was her day off and she would spend the day with her boyfriend. 

191.D1 said she returned home at 2:30 a.m.  When D1 was referred to the CCTV footage showing that she left Alvy’s at 21:01:49 (real time 01:31:49) she said she got home by 2 a.m.  Within ten minutes D1 was in bed.

192.When D1 arrived at her boyfriend’s place her boyfriend was at home on his bed and that when she went to bed he was using his phone while sitting on his chair by the bed.  When D1 woke up at 6 a.m. her boyfriend was also using his phone while sitting on his chair by the bed.  D1 did not think he had slept because she would have felt him if he had slept next to her.  D1 said they spent the day together at home.

Arrest

193.D1 said she first became aware of the burglary when she was arrested.  D1 had been out shopping with her boyfriend.  When they returned to the boyfriend’s place they were stopped by the police. 

194.D1 was shocked and did not know what was going on therefore she asked the police.  A police officer said she knew and that her friend from Alvy’s had told them what she did.  The police also mentioned about some messages.  D1 said she did not send the messages and that the first time she saw the messages was during the video recorded interview.

195.In the police station the police seized D1’s mobile phone.  After D1 was released from the police station she went home to Kennedy Town and used her laptop to log onto her Facebook account to look for the messages.  D1 could not find the messages.  D1 also could not find Grace’s name or their message history.

196.D1 said she did not receive any phone call from Grace on the afternoon after the burglary.

Burglary

Cam 02 - 22:21:23-22:21:36 (real time 02:51:23-02:51:36)

197.From the CCTV footage D1 said she recognised the first person who entered was her boyfriend and the person behind was Alex Limbu.  D1 said she was first shown the CCTV footage during the video recorded interview.  Asked by Miss Zahir how she felt when she saw the CCTV footage, D1 replied that she did not know how to feel and did not want to believe it could be her boyfriend.  

198.D1 said that she knew Alex Limbu.  D1 did not regard him as a friend and said he was someone she only saw when he was with her boyfriend.

199.D1 said she did not know how they were able to enter Alvy’s.  Looking at the CCTV footage D1 said it seems like the first person, her boyfriend, was holding a key in his right hand when he enters Alvy’s.  D1 said she had no idea how her boyfriend could have got any key.    

Cam 03 - 22:22:23-22:23:10 (real time 02:52:23-02:53:10)

200.The CCTV footage shows Alex Limbu trying to open the money locker with a key.  D1 said she did not know how Alex Limbu could have got a key.   

201.Asked by Miss Zahir why she continued to stay with her boyfriend after she was arrested, D1 replied that after she was given bail by the police she asked her boyfriend multiple times if it was really him but he just kept deflecting her questions which led to arguments during which he would scream at her causing her a lot of stress.

202.D1 said she tried to leave a few times but her boyfriend would not allow her to leave saying she owed him everything and threatened her if she left he might do something to her family, especially to her sister and make her feel guilty and a bad person for leaving him. 

203.D1 said she left in March 2020 after a very big argument which was violent.  D1 took all her stuff and never returned and has not seen her boyfriend since.  D1 said she was concerned about the threats and did not go outside at first in case he did something if he saw her but he never did anything. 

Discussion

204.I have carefully considered all the evidence and the submissions of Mr Sujanani and Miss Zahir. 

205.I direct myself the fact that D2 has pleaded guilty to the charge has no bearing on the case of D1.  The prosecution has to prove the charge against D1[74].   The defence rely on the fact that Mariano Gerard B has absconded in support of the defence case[75]. 

206.I have no hesitation in rejecting the evidence of D1.  I do not find D1’s evidence credible, for example I do not find credible the only reason D1 went to Alvy’s was to see Ms Gertos because she had not seen her since quitting Alvy’s and to ask Ms Gertos about the $1,500 she owed her.  I do not find credible D1’s evidence that she did not send the messages.

207.I remind myself that the rejection of the defence evidence is not determinative of the issues in the case.  The defendant has to prove nothing.  A case in which defence evidence is called and is not believed is no different from one in which no evidence is called.  In either case the burden is on the prosecution to prove the defendant’s guilt beyond reasonable doubt.

208.The prosecution case relies on the messages.  The main issue is who sent the messages.  The messages are to be considered together with the evidence of Ms Gertos and the CCTV footage.

Credibility of Ms Gertos

Immunity against prosecution (exhibit P13)

209.Miss Zahir submits that the court should believe the version of D1 where her evidence differs from Ms Gertos by reason of the fact that Ms Gertos was giving evidence under immunity and had lied to both Mr Ambekar and the police[76].  

210.In cross-examination Ms Gertos said that she was given a copy of the immunity on 23 August 2021, the first day of trial; the idea of immunity was hers; she understood that the immunity required her to tell the truth; she asked for immunity because she had committed the offence of lying to the police; and that she had been arrested for aiding and abetting the burglary and for misleading the police. 

211.In reaching my verdict I remind myself that in considering the truthfulness and reliability of Ms Gertos’s evidence that Ms Gertos gave evidence under immunity from prosecution and therefore the possibility that she may be lying in order to avoid prosecution[77]. Having lied previously I approach the evidence of Ms Gertos with caution.  

Charge 1 - Burglary

Retrieval of the messages

212.Miss Zahir submits that even if the police handling of the screenshots could complete the chain of evidence the messages should still be ruled inadmissible by reason of the fact that the messages had been deleted and were not complete. Alternatively, Miss Zahir submits that because the messages are incomplete they are highly unreliable and little weight should be given to them[78].

213.I accept the evidence of Ms Gertos that after she received the messages she screenshot the messages which screenshots were recovered first by DPC 22336 who took photographs of the screenshots (exhibit P12C) and later by WSDPC 18981[79].   

214.I was satisfied the screenshots of the messages were admissible in evidence.  The eight screenshots which had been provisionally marked as exhibit PP12 were marked as exhibit P12 after DPC 22336 had identified that the eight screenshots marked as exhibit PP12 were the same screenshots he printed out from the DVD containing the data extracted by WSDPC 18981 from the mobile phone of Ms Gertos[80].

215.The screenshots clearly are not a complete record of the messages.  Whilst the first, second and third screenshots show continuity in the messages, the fourth screenshot does not.  The first message on the fourth screenshot appears to be an incomplete message with the start of the message not being screenshot. 

216.The fifth screenshot is a continuation of the fourth screenshot.  The first message on the sixth screenshot is not a continuation of the last message on the fifth screenshot which is not complete.  From the format of the messages there would appear to have been a message in between, possibly from Ms Gertos which has not been screenshot. 

217.The last message on the sixth screenshot is sent by Ms Gertos.  No words were screenshot, only the tops of the letters.  The first message on the seventh screenshot is also sent by Ms Gertos.  The tops of the letters are consistent with the tops of the letters of last message on the sixth screenshot.  I am satisfied that the sixth and seventh screenshots are continuous. 

218.The last message on the seventh screenshot is sent by Ms Gertos whereas the first message on the eighth screenshot was received by Ms Gertos.   Whilst there is no overlapping of the messages as in other screenshots, I am satisfied from the content of the first message on the eighth screenshot that this was a reply to the last message sent by Ms Gertos on the seventh screenshot.

219.In cross-examination when asked if she had deleted any messages which were not screenshot Ms Gertos replied that she thought there were some messages which she deleted that were not screenshot.  Ms Gertos also said there were voice messages which she had deleted and that she had also delete the Facebook Messenger App[81]. In answer to the court Ms Gertos said she deleted the messages because she was very scared[82].

220.Although the screenshots are not a complete record of the messages received by Ms Gertos and sent by Ms Gertos, I am satisfied that I can rely on the content of the messages which throughout all refer to what happened in Alvy’s earlier that day and what Ms Gertos should do. 

Who sent the messages

221.I am satisfied the only inference to draw from the profile photograph and the name Chevie Rebong Francisco is that the messages were sent from D1’s Facebook messenger account. 

222.In cross-examination when asked that if she did not send the messages whoever sent the messages must have hacked her Facebook account, D1 replied “I wouldn’t say hack because once I’m logged in on my phone you don’t need to input a password again on Facebook.”  Mr Sujanani then asked D1 if it was her case that the device used to send the messages was her mobile phone.  D1 replied “Yes”.

223.Implicit from D1’s evidence is that her case was that her boyfriend sent the messages on her mobile phone although she never specifically stated that she thought her boyfriend sent the messages.  The defence case as put in submissions is that the boyfriend sent the messages on D1’s mobile phone[83].  

224.I accept the evidence of Ms Gertos in cross-examination that there was no occasions in the past where messages were sent from D1’s phone which Ms Gertos knew were from the boyfriend[84].

225.I have no hesitation in rejecting the submission that the boyfriend Mariano Gerard B, sent the messages.  In the first message sent at 2:30 p.m. (first screenshot) the identity of one of the burglars is revealed “…gee planned to take the money bro and did take it.”

226.Gee is the name Ms Gertos called the boyfriend[85]. I find inherently improbable that if the boyfriend sent the messages he would reveal he planned the burglary and took the money.  

227.I am satisfied the only inference to draw from the content of the messages, which started at 4:23 a.m. asking Ms Gertos to meet for lunch before she went to work because it was really important, is that the messages were sent by D1. 

228.In reaching this finding I have carefully considered the submissions of Miss Zahir that the content of the messages, in particular reference to changing the money locker key which is contradicted by the CCTV footage, show they cannot have been sent by D1[86].

229.Ms Gertos having said that she was confused about the truth when giving evidence about the keys, I am satisfied that it would not be safe to rely on this part of Ms Gertos’s evidence[87].

230.I find inherently improbable that if the boyfriend sent the messages he would say that the money locker key had been changed thereby implicating D1, his girlfriend, in the burglary. 

231.The fact that the CCTV footage shows that the key Alex Limbu (D2) used to try open the money locker was different to the key D1 had earlier used to open the money locker and that D1 cannot be seen from the CCTV footage swapping any keys, does not cause me to doubt the only inference to draw is that D1 sent the messages. Nor does the fact that there is reference in the messages to the burglars wearing masks and having a key cause me to doubt the only inference to draw is that D1 sent the messages.

232.Miss Zahir also relies on the language used in the messages to say they were not sent by D1[88]. I do not agree the messages are predominantly in Tagalog.  A careful look at the messages show there is a mix of English and Tagalog in all the screenshots.  Save for the fourth screenshot where the language is predominantly Tagalog, in all the other screenshots either English is predominant or there is a similar amount of English and Tagalog.  Overall there is more English than Tagalog.

233.I accept the evidence of Ms Gertos in cross-examination that when she spoke to D1, D1 would speak mixed English with some Tagalog words[89]; the main channel of communication was mostly Facebook and only sometimes WhatsApp and that D1 would usually message her in English[90] .

234.I am satisfied from the content of the messages read as a whole and the way the messages are written, the only person who could have sent them was D1.  The submissions of Miss Zahir does not cause me to doubt this finding. 

235.In addition, Ms Gertos also testified that after receiving the messages she telephoned D1 while she was on the way to work[91]. Miss Zahir submits this evidence is unreliable because Ms Gertos first said the phone call happened after she saw the first two messages and later said she called D1 after all the messages[92].

236.At no time in evidence did Ms Gertos specifically say she called D1 after receiving the messages shown on the first and second screenshots.  Ms Gertos first mentioned about calling D1 when giving evidence about the second screenshot. The answer that the call was made after the messages was given while Ms Gertos was still being asked about the second screenshot.

237.In cross-examination when asked what “Yes” means in the second bubble on the fifth screenshot, Ms Gertos replied “Because maybe that was the time when I called her.”  When put she had earlier said the call happened after the messages were sent, Ms Gertos replied, “Yes, but all her messages, I was only able to answer one because I was already scared.”  Asked whether she was saying she called D1 after sending the two messages seen on the third screenshot, Ms Gertos replied “What I remember, yes, I called her.”[93]

238.I am satisfied any inconsistence there is in exactly when Ms Gertos called D1 is more apparent than real and not material.  What is material is whether Ms Gertos made the call to D1.  In cross-examination when Miss Zahir put that there was no phone call, Ms Gertos replied “I called. There was a call to her from me.”[94] I accept the evidence of Ms Gertos that she called D1 about the messages when she was on the way to work. 

Verdict

239.I find that it was no coincidence that D1 went to Alvy’s and that one hour and twenty minutes after she left Alvy’s her boyfriend Mariano Gerard B burgled Alvy’s. D1 did not simply visit Alvy’s and chat and drink with Ms Gertos.  D1 clearly timed the visit so she could witness the cash out during which she checked the keys, checked the locker, took out the money bags and put the bags back in the locker. 

240.In making this finding I have placed no weight on the evidence of Ms Gertos about what D1 said when urged by Ms Gertos to move quickly, Ms Gertos not telling the police about this[95].

241.I am satisfied that by first going to Alvy’s and helping in the cash out, what Mr Sujanani called the ‘test run’, D1 went to check whether there had been any change to where the money was kept and whether there was any money to steal and that the burglary occurred one hour and twenty minutes later, the only inference to draw is that D1, D2 and Mariano Gerard B, D1’s boyfriend, were party to a joint enterprise to burgle Alvy’s restaurant. 

242.In reaching my verdict I have carefully considered everything said on behalf of D1 by Miss Zahir, both individually and collectively,including that the acts of D1 when visiting Alvy’s were not criminal or supportive of a suspicion D1 was involved in the burglary[96]; D1’s financial situation[97]; D1’s relationship with her boyfriend; there is no evidence that D1 procured a key to the main door for her boyfriend to use and that the burglary did not require the involvement of D1[98]. Nothing said by Miss Zahir causes me to doubt the findings I have made.

How much was stolen in the burglary?

243.The charge particularises the sum of about $63,300.  The prosecution opening refers to three sums: $57,000; $6,000 and $300[99].

244.Mr Ambekar testified only as to the sum of $6,000 which he called the backup float and which was kept in one of the three bags in the money locker.  Ms Gertos testified that she counted $2,192 being the sales revenue for that night, $300 tips and $6,000 change. 

245.When asked what the total amount in the bags was Ms Gertos replied that she did not know.  Ms Gertos explained that the money was to be taken to the bank each day but Mr Ambekar had not taken the money to the bank for a few days and that she did not know the exact amount in the bags because she had only counted the sales revenue for that day.

246.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  Save that the prosecution cannot prove how much cash was stolen in the burglary, I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D1 is convicted of burglary.

Charge 2 - Doing a series of acts tending and intended to pervert the course of public justice

247.Conduct has a tendency to pervert the course of justice if it has a tendency to cause a miscarriage of justice in curial proceedings which are imminent, probable or even possible[100].

248.The messages are very clear asking Ms Gertos not to say anything and not to tell the truth: “bro all im asking from you is to no tell saheb and don’t tell the truth..if they ask you for your key, just tell them you forgot it at home.”(second screenshot);“just say you forgot your key at home and cashout went nomally. bro you wont get in trouble if you just play along as well.” (second and third screenshots); “if they ask you where the money is.just say, idk cause it was there when I cash out last night and you don’t have to say that it was me who put it. AND you don’t have to say that I dropped by that’s not important” (seventh screenshot) and “Bro I just have to trust you that you will tell no one because I dont want to say this but I have to if really they know its me, then that means you told them something bro. I trust you with THIS big information” (eighth screenshot).

249.The messages also state Ms Gertos does not have to pay the $1,500 she owes D1 and she will be given an extra $1,000: “…and for you bro ..you don’t have to pay me back the $1,500 and bro I can give you extra $1,000 more bro” (second screenshot); “Im really sorry bro. but I can give you $1,000 and you dont have to pay me the $1,500” (third screenshot); “so bro I will give you $1,000 and dont pay me back the $1,500 if you promise me you can do your part that you forgot your key and” (fifth screenshot);“and I can give you $1,000 if you want and you dont even have to pay me back $1,500” (seventh screenshot) and “bro I will give you $1,000 and you dont have to pay me back” (eighth screenshot).

250.I am satisfied so I am sure that the messages were intended to frustrate or deflect the course of curial proceedings which may result from the investigations.  I am satisfied so I am sure that the messages had the tendency to pervert the course of public justice.

Intention to pervert the course of public justice

251.I am satisfied so I am sure the only inference to draw is that by sending the messages seeking to persuade Ms Gertos not to tell the truth about what had happened D1 intended to pervert the course of justice. 

252.In reaching my verdict I have carefully considered everything said on behalf of D1 by Miss Zahir both individually and collectively.  Nothing said by Miss Zahir causes me to doubt the findings I have made.

253.I am satisfied so I am sure there are no material and significant discrepancies, improbabilities or omissions in the evidence which cause me to doubt the findings I have made.  I am satisfied so I am sure the prosecution has proved all the elements of the charge beyond reasonable doubt.  D1 is convicted of doing a series of acts tending and intended to pervert the course of public justice.