HKSAR v. ENDOZO, MAYLIN PALOMAR

HCMA 213/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 213 OF 2010

(ON APPEAL FROM KTCC NO. 5840/2009)

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BETWEEN

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REASONS  FOR  JUDGMENT

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1.  The Appellant was convicted after trial by Magistrate Mr Lawrence Yip of one count of “Theft” and was sentenced to 9 weeks’ imprisonment on 5 March 2010.

2.  The particulars of the offence alleged on 9 September 2009 inside Room 2106, Hong Ting House, Hong Yat Court, 1 Tak Tin Street, Kwun Tong, Kowloon, she did steal cash $100, the property of Lee Chi-ming.

3.  An application for bail pending appeal was refused by the Magistrate. By that time, the Appellant had been remanded for 3 weeks in prison. She appealed against conviction only, and I allowed her appeal on 1 April 2010. At that time I advised that my reasons for judgment would be handed down at a later date; these are my reasons.

Background

4.  The Appellant was employed by Mr Lee Chi-ming (PW1) as a Domestic Helper. The contract had started in July 2009, but the Appellant was given one month’s notice on 27 August 2009, which would expire on 26 September 2009.

5.  The Appellant gave evidence and told the court that on two occasions prior to her being given notice, PW1 had accused her of taking money. On 8 September 2009, the day before the alleged offence, PW1 again accused her of taking money that he claimed was missing from his wallet.

6.  On that day, he searched the Appellant’s bedroom, her bed, her belongings and her wallet to no avail.

Prosecution case

7.  Mr Lee (PW1) gave evidence that on 9 September 2009, he had returned home from work and had noted the serial number of five $100 banknotes on a piece of paper, put the five banknotes into his wallet, and put it back in his handbag. He placed the handbag on the sofa in the living room, after which he began to assist his daughters with their homework at the dining table.

8.  During this time, the Appellant was carrying out her duties, cleaning the master bedroom, and helping PW1’s wife to prepare dinner. PW1 and his family took dinner in the dining room and the Appellant had her dinner in the kitchen.

9.  After dinner, PW1 said he instructed the Appellant to clean the dining room and to tidy the clothes in the living room. He continued helping his daughters with their homework. He said he sat with his back to the sofa.

10.  At about 10:30 p.m., PW1 took back his handbag from the sofa, checked his wallet and found one $100 banknote was missing. He began a search, searching his daughters’ room, the drawers containing the Appellant’s belongings under her bunk bed and the kitchen.

11.  At midnight, PW1 was still searching but could not find the missing banknote. He confronted the Appellant and asked if she had stolen it. She said “No” and he told her that if she did not admit it he would report to the police.

12.  Between midnight and 1:40 am, PW1 continued to search his house. At about 1:40 am, he called the police.

13.  The police arrived and it was PC 21665 who searched and found the missing banknote between the mattress and the sheet on the Appellant’s bunk bed. The Appellant was arrested.

The defence case

14.  The Appellant, who was of clear record, gave evidence. She said she had assisted in preparing the dinner. She denied that PW1 had told her to tidy the clothes in the living room but agreed she tidied the living room and cleaned the kitchen. Around midnight PW1 came to ask her how much money she had in her wallet, and she showed him cash of $2,320. PW1 then searched her room but found nothing. After the search PW1 said nothing to her. PW1 left the room and the Appellant went to bed and slept until about 2:00 a.m.

15.  At 2:00 a.m., police officers came and one searched out the missing money tucked between the mattress and the sheet on the bunk bed in her room. The Appellant denied she had taken the money. She said that she had seen PW1’s handbag on the sofa in the living room earlier on, but denied touching it or taking out a $100 banknote. The Appellant said she had no idea who put that banknote under her bed sheet.

16.  In assessing the evidence, the Magistrate noted that PW1 had made two errors. The first related to the time he had recorded the serial numbers of the banknotes. He said first that it was at 10:30 p.m. but corrected that to 6:30 p.m. The second error was about what he did between mid-night to 1:40 a.m. He first said he had done nothing – later he said he had searched the house. PW1 admitted he had made those mistakes through carelessness.

17.  The Magistrate also commented that as well as the two mistakes, PW1 in the course of giving evidence had also failed to answer a number of questions properly which resulted in irrelevant answers; he concluded that PW1 appeared to be careless and insufficiently attentive when giving evidence.

18.  However he said that after careful observation of PW1’s demeanour, he did not find that he had changed his evidence. He believed that PW1 made the mistakes inadvertently and that they did not undermine PW1’s credibility or reliability.

19.  He did not find it strange that PW1, who was in close proximity almost all evening to the sofa where his handbag was placed, had not noticed the Appellant taking the money from the wallet, as he alleged had happened. He also noted that PW1 in giving evidence, had used various prejudicial expressions about the Appellant, but he said he put those prejudicial expressions out of his mind and gave them no weight. He had considered whether it was a set-up by PW1 and/or his family members, so that PW1 could summarily dismiss the Appellant.

20.  He did not think the case was a set-up because if it had been, there was no reason for PW1 to conduct such a thorough search in his home, and wait until 1:40 a.m. to report to the police at the expense of his own sleeping time. There was however no support for PW1’s evidence about what and where he searched. His daughters were said to be asleep and his wife who was said to be present did not give evidence.

21.  The Magistrate despite the irrelevancies that he noted, considered PW1 an honest and reliable witness and attached full weight to his evidence.

22.  In assessing the evidence of the Appellant, he found it suspicious that she was able to describe the handbag and he found her evidence was implausible and contradictory although he did not specify why that should have been the case. He found that she was not an honest and reliable witness and rejected her evidence.

23.  The evidence given by the Appellant indicated that it was common practice for her employer to place his handbag on the sofa when he returned from work. She had noted the appearance of the bag because she had been working there for some time and had been able to see it. From her recall of its details there was nothing unusual about it. Given her role as domestic helper it would have been more surprising if she had not been able to describe the handbag.

Grounds of Appeal

24.  Ground 1 alleged that in finding PW1 was an honest and reliable witness and attaching full weight to his evidence, the Magistrate failed to take or take sufficiently into account the inherent improbabilities in PW1’s evidence.

25.  Ground 2, alleged that in rejecting the Appellant’s evidence as implausible and contradictory, the Magistrate placed undue weight on his subjective assessment of the demeanour of the Appellant.

26.  Ground 3 alleged that all the evidence strongly pointed to a “set-up”, but the Magistrate in rejecting the possibility of a set-up had done so by means of circular reasoning and had not taken into account that other family members were present during the period, anyone of whom could have had access to the Appellant’s room.

Consideration

27.  Having considered this case extremely carefully in light of counsel’s submissions, I am of the view that Ground 1 has been substantiated. What the Magistrate did not do in this case was to step back and consider the inherent improbabilities in the evidence before him. The Appellant had started her contract in July 2009 and had been given one month’s notice almost immediately at the end of August. On two occasions prior to her being given notice as well as on the day before this offence allegedly occurred she had been accused of taking money. This had resulted in searches of her belongings on each occasion. No report appears to have been made to police about these alleged thefts.

28.  On 8 September 2009, a further allegation was made by PW1 about money that was allegedly missing. The Appellant again denied theft, but on past experience must have expected that another search or searches, was or were likely to be made of her property, or that a report would be made to police, or that both courses would be followed by PW1. In her evidence she recounted details of a search that had been conducted of her room, her belongings and of her bed on 8 September.

29.  It is against that unhappy background of suspicions that the Magistrate should have considered the following matters relating to the alleged theft. PW1 said he put his handbag on the sofa before dinner, at which time it contained the marked note. He then assisted his daughters with their homework at the table in the dining area of the combined living and dining room.

30.  To steal the marked note, the Appellant would have had to go to the sofa near the window, undo the handbag, take out the wallet, remove the hundred-dollar note, replace the wallet and put it back in the handbag. While doing so she was effectively under the gaze of PW1 (albeit his back was said to be facing the sofa) and his two daughters were aged 13 and 11 years who were also at the table. There was a further risk of her being observed by the wife of PW1 who was in the flat and could have come in at any time.

31.  The photographs produced [Exh. P.5 1 and 2] show that the area of the living and dining room was not large. The distance from the table to the sofa would appear to be a matter of a few feet. It is highly improbable that the Appellant, knowing that PW1 suspected her already, would risk almost certain discovery by removing a banknote from the handbag under such circumstances. Nor is it likely that PW1, having gone to the trouble of setting a trap, would studiously ignore what was happening in the vicinity of his handbag.

32.  The other major improbability, assuming that she had taken the money, is that she would then put it under the sheet on her own bed when she knew from past experience that PW1 would search her belongings, as in fact he had done the day before. Commonsense would indicate that there were many other places where she could have hidden a banknote which, if found, would not point to her guilt directly, as would a banknote concealed in her bedding.

33.  PW1 claimed that he searched the house between his discovery of the loss at 10:40 p.m. and mid-night when he challenged the Appellant alleging that she had taken the money. During that time he searched the bedroom and belongings of the Appellant. It is highly unlikely that he would have failed to search the bedding or the bedclothes of the Appellant during the course of such a search. However, the fact that he did conduct a thorough search in the manner that he claimed, left open the possibility that the banknote could have been planted in the bedding at the time the search was carried out.

34.  At 1:00 a.m., the Appellant was permitted to go to bed, but was woken by the entry of police officers at 2:00 a.m. who had been called to the flat in answer to a report made by PW1 at 1:40 a.m. On my enquiry of the Respondent it was confirmed that this was a ‘999’ call.

35.  It is not clear why PW1 should misuse the ‘999’ report facility, or why the police would attend the scene at that time in the morning to investigate an alleged theft of $100 on what were at that time the suspicions only of PW1. Nor was there any explanation why the police could have not attended, if necessary, the following morning.

36.  It was a police officer who found the note allegedly placed there by the Appellant. One might wonder why the police were able to find the banknote so quickly when a much longer and more thorough search by PW1 had not produced the same result.

37.  The Magistrate when examining the evidence alluded to the possibility of a set-up, possibly with a view to PW1 avoiding payment of the Appellant’s salary consequent on a working out of the Appellant’s notice. If she was charged with theft that would be sufficient reason for summary dismissal, which is rather cheaper for the employer than a dismissal on notice.

38.  Given the attitude adopted by PW1 towards the Appellant, for example by his searches which showed little or no respect for the privacy, legal rights, or convenience of the Appellant, a frame-up cannot be ruled out as a possibility, particularly as no attempt was made to clarify what the movements of PW1’s wife and his daughters’ were during the relevant period, or to exclude them from any involvement.

39.  The evidence showed PW1 as somewhat obsessive in his insistence that thefts had occurred; that the Appellant was responsible for them and his remarkably feudal attitude to domestic staff raised the possibility at least that his personal animosity may have caused him to make false accusations.

40.  The Magistrate did not appear to question why PW1 would summon the police, on suspicion only, in the middle of the night. That resulted in police officers attending in the early morning hours and arresting a young woman with a clear record and taking her to a police station, when a report could have been made the next day. If the Magistrate had considered the background relationship objectively it would be difficult to rule out the element of reasonable doubt.

Finding

41.  Overall, the question posed by the Court of Appeal in R. v. Ng Wing Ming [1994] 2HKC 464@ 468 is apposite, “In this case, we must at the end of the day ask ourselves a subjective question. Are we content to let the matter stand as it is or is there some lurking doubt in own minds which make us wonder if injustice has been done.” Having asked the question I cannot be sure that justice was done.

42.  I am satisfied that in this case there were inherent improbabilities in this case which raised doubts and made the conviction of the Appellant unsafe and unsatisfactory. Accordingly the appeal is allowed, the conviction and sentence quashed.

Comment

43.  In conclusion I would comment this was a case where the Magistrate should have granted bail pending appeal. The sentence, although, in my view, too severe, in any event was sufficiently short for there to be a real possibility of the sentence being served in full before the appeal could come on for hearing. This Appellant has been dealt with harshly and unfairly because she had served her whole sentence before this appeal was heard.