HKSAR v. NANIK

 [English Translation – 英譯本]
HCMA 780/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 780 OF 2008

(ON APPEAL FROM TMCC NO. 2761 OF 2008)

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REASONS FOR JUDGMENT

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1. The appellant was convicted after trial by the Magistrate on one count of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 of the Laws of Hong Kong, and was sentenced to two months’ imprisonment. The appellant appealed against both conviction and sentence.

2. At the conclusion of the hearing, I allowed the appeal, quashed the conviction and set aside the sentence. I now set out the reasons for my judgment.

The prosecution’s case

3. In short, the prosecution’s case was that the appellant, an Indonesian, was employed by the first prosecution witness (PW1) as a domestic helper. On the day in question, PW1 put five brand new $100 bank notes marked with consecutive serial numbers (LE324063 to LE324067) into his waist bag, which he then placed in the ‘sundry room’ in his residence. PW1 later found that one of the five $100 notes was missing. He asked the appellant about it, and the appellant said that she had no idea. She volunteered to let PW1 search her property. She produced her wallet and clothing of her own volition, and they turned up nothing after being searched. When PW1 asked the appellant whether she had other belongings, she took out a handbag from under the bed. Eventually, a brand new $100 note was taken out from the handbag. The note, with the serial number of LE324065, was one of the aforesaid five bank notes. The appellant said that the bank note was given to her by her elder sister and she denied having stolen it. Later, PW1 called the police. The appellant told the police officer the same version of events.

The defence case

4. Both the appellant and her elder sister testified. The appellant had a clear record. She denied having stolen the $100 note and said that her elder sister had given her the note. She was unable to explain why the note given to her by her elder sister bore a serial number which was consecutive to those of the other four $100 notes of PW1’s.

The prosecution’s stance

5. The prosecution did not have any direct evidence to show that the appellant had stolen the $100 in question. The prosecution submitted that, from all the circumstantial evidence, a reasonable inference could be drawn beyond doubt that the appellant had stolen the said $100.

The defence’s stance

6. Although the defence was unable to explain why the $100 note given to the appellant by her elder sister bore a serial number which was consecutive to those of the other four notes of PW1’s, the defence submitted that since PW1’s wife had been dissatisfied with the appellant’s work attitude and PW1’s son and daughter-in-law had also accused the appellant of stealing clothes, someone had planted the stolen item on the appellant and framed her up.     

Grounds of appeal

7. Mr. Butt, Counsel for the appellant, raised a number of grounds of appeal. In my view, it was necessary to deal only with the first ground.

8. Mr. Butt complained that the Magistrate merely narrated the evidence of the witnesses for both parties and then, without giving any reason, ruled that he disbelieved the appellant and was satisfied that PW1 was a veracious witness. Furthermore, the Magistrate said in his oral verdict that from the stolen property, he could ‘get the melon by following the vine’ and be absolutely sure that the appellant had committed the offence. Mr. Butt submitted that the conviction was unsafe.

Discussion

9. An appeal against a magistrate’s decision is conducted by way of “rehearing” on the evidence before the magistrate (supplemented by such further evidence as may be admitted by leave of the appellate court): see Chou Shih Bin v. HKSAR FACC 11/2004. In my judgment, as far as the facts are concerned, the appellate court shall have regard to the fact that the magistrate has had the benefit of hearing and seeing the witness giving evidence, whereas the appellate court can only rely on transcripts. Whether or not a witness was credible and reliable is purely a matter for the magistrate. However, a conviction will be unsafe if the magistrate’s finding of fact is unreasonable, illogical or inherently improbable, or if the magistrate in dealing with the evidence had misquoted, omitted or failed to consider or analyze material matters.

10. When describing the prosecution evidence, the Magistrate said that it was only after repeated questioning that the appellant allowed PW1 to examine her room. However, according to the relevant transcript (Appeal Bundle, page 52 F to H), right after denying having taken the money, the appellant suggested to PW1 that he might go to her room for a check:

A:  … ‘Have you taken money from my waist bag?’

Q:  Right. Then, what did the defendant do? Did she respond?

A:  The defendant said she had not. The first thing that she told me was that she had not. Then I said I had lost some money.

Q:  Lost some money, yes, what next?

A:   Then she said — she said, ‘You may go to my room to have a look.’ I said, ‘Fine.’ Then we walked into her room together. First of all, she took out her wallet and gave it to me to have a look.

It was not the case that the appellant allowed the witness to examine her belongings only upon ‘repeated questioning’.

11. Regarding the appellant’s evidence, the Magistrate had this to say in his oral verdict:

… Defendant, you have elected to give evidence. In your description, the relationship between you and the witness’s family was initially good although there were some slight problems. You also said that the witness’s second son had accused you of stealing. You said that the first time they accused you of stealing was in January 2008. You said that thereafter the relationship between the parties — that is what you said, you said that thereafter he began to dislike you. You also said that in April or May 2008, the wife of the witness’s second son falsely accused you of taking away some jeans. You said that since then the relationship between the parties had become sour, and also said that the wife of the second son had all along been criticizing you for making mistakes at work and not been treating you well.

The implication of such evidence is that, that is to say, maybe because of that, [the events] foreshadowed a frame-up against you by the witness’s whole family. You said that at about 7 a.m. on the day in question, you started work, doing things such as washing clothes, boiling water, washing cups, etc. – I have not overlooked [this] at all. I have also fully considered what you said about how you went to Tai Po to pick up the employer’s son at about 11:30 and then went to have tea and shopped at the food market, etc. You also said that you, the employer’s mother and the child returned home at about 4 o’clock on the same day – all the more I would not overlook [this]. You also said that after returning home, you washed the car, in the course of which you visited the sundry room – this all the more I dared not overlook. Then you said that at about 8:40 p.m. the same night, the witness accused you of stealing and asked to check your room. You said that the witness, his wife, his second son, the son’s wife and the child were at that time all there watching. You also said that you took out your clothes and placed them on the floor for examination. You also mentioned that you had in your wallet one hundred odd dollars, which was not the stolen property in the present case. But you said that there was in fact a $100 note hidden in your handbag, which was the stolen property in the present case. But you stressed that the $100 note was given to you by your elder sister. Certainly, you offered no answer to the question of why the $100 note given to you by your elder sister would have been swapped with the $100 note which was the exhibit in the present case. But you do not have to provide an answer to the court as you do not bear any burden of proving anything.

Well, when I considered your evidence, I did of course bear in mind the theory put forward by the defence that the stolen property had been planted on you and also your assertion that you had not stolen any money. Even viewing your credibility and propensity to commit crime in a way most favourable to you, I still do not accept what you said. You have also called a witness, namely your elder sister, as a character witness for you. In the course of giving evidence, she repeatedly stressed and took the initiative to stress that you are an extremely honest person and that she had given you money for your use before the offence took place. I have considered all of them. The point that no one saw you steal, which was repeatedly emphasized by your Counsel in his submissions half way through the trial and closing submissions, would all the more not be overlooked by the court.

First of all, the court must consider whether the witness is a veracious and reliable witness. I absolutely believe that he is a veracious and reliable witness. If I use the stolen property — namely the $100 note which bears a serial number consecutive to the other notes in question — as a starting point and then get the melon by following the vine, I am certainly and absolutely sure beyond doubt that you had dishonestly stolen the $100 in question. You are found guilty of the offence. [Emphasis added]

12. As far as the appellant’s case was concerned, she had no idea why the $100 note given to her by her elder sister and the remaining $400 notes of PW1’s bore consecutive serial numbers. She could only suggest that she might have been framed up. The Magistrate said that the ‘implication’ of her evidence was to ‘[foreshadow] a frame-up against you by the witness’s whole family’. As a matter of fact, PW1’s evidence did lend support to the suggestion about the discordant relationship between the appellant and PW1’s family. By making it clear at the outset that the appellant’s evidence served as a foreshadow, the Magistrate gave the impression that he had from the very beginning regarded what the appellant said as incredible.

13. What is more, not only did the Magistrate stress time and again that he ‘had not overlooked’ the appellant’s evidence, but he also said that he ‘all the more dared not overlook’ her evidence. I am at a complete loss as to why the Magistrate said to a defendant that he dared not overlook the evidence. What the Magistrate said at that time gave the impression that he was making sarcastic remarks against the appellant. It would appear that the Magistrate had firmly believed from the outset that the appellant’s evidence was incredible and had gone further by making sarcastic remarks against her. He had not considered her evidence in an impartial manner.

14. Besides, in his oral verdict the Magistrate did not explain why he did not accept the appellant’s evidence. He only mentioned briefly that he ‘still [did] not accept’ the appellant’s evidence. I do appreciate that, given the heavy workload to which he is subject every day, it is impossible for a magistrate to give detailed reasons for decision in each and every case. In the present case, however, given the Magistrate had adjourned the case until the afternoon for verdict and he appeared to have had adequate time to state the evidence of both parties, why could he not give reasons – even if very brief ones – so that the defendant knew why her evidence was not accepted?

15. It is true that the Magistrate had in his Statement of Findings given reasons for not believing that the appellant had been framed up. However, a defendant should not have to wait until the appeal before he is told why his evidence has not been accepted.

16. In his oral verdict, the Magistrate, having found that PW1’s evidence was credible and reliable, merely stated that, taking the stolen property as a starting point, he could get the melon by following the vine and be absolutely sure beyond doubt that the appellant had dishonestly stolen the money.

17. On the face of it, ‘getting the melon by following the vine’ means that one can get the melon if one follows the vine. The Magistrate, being a professional magistrate, ought to have meant that the ‘melon’ was the only reasonable inference. I hope that magistrates will use clear words and expressions so as to avoid misunderstanding or confusion. In the present case, the Magistrate did not state clearly how he followed the vine (i.e. relied on what facts) and got the melon (i.e. arrived at the only reasonable inference).

18. Was the theft of the $100 by the appellant the only reasonable inference that could be drawn?

19. The appellant was employed as a domestic helper at the material time. Her employer’s wife was dissatisfied with her work attitude, and the employer’s son and daughter-in-law had accused her of stealing clothes (although they had never accused her of stealing money). The relationship between the appellant and the family of the prosecution witness could hardly be described as harmonious. One could not discard the possibility that the employer had planted stolen property on the appellant with the intention of terminating the employment contract without having to give notice or pay compensation to her.

20. PW1 put $500 in the waist bag at about 3 p.m. and found money missing at about 8 p.m. The appellant had to work in the meantime. Her room could not be locked up from the outside and could only be bolted on the inside. PW1’s family members had the opportunity to go into the appellant’s room. In other words, other people could have access to the appellant’s handbag.

21. Upon PW1’s inquiry, the appellant made an immediate denial and volunteered to let PW1 search her property. It was not true that she agreed to the search only after repeated questioning.

22. Furthermore, the prosecution only called PW1 to give evidence. None of his wife, his son and his daughter-in-law was called — and they were the very people who were dissatisfied with the appellant, who had accused her of stealing clothes, and who had the opportunity to go into her room. The Magistrate had failed to consider or analyze all the factual circumstances.

23. The mere finding that PW1’s evidence was reliable and credible and that he did not frame up the appellant does not mean that the prosecution had proved the offence against the appellant beyond reasonable doubt.

24. The presence of the $100 note in question in the appellant’s handbag did put the appellant on suspicion. However, if what she said, namely that she did not steal, were true or might be true, then even though she failed to explain why the $100 given to her by her elder sister had been replaced with the $100 in question, the prosecution would still have failed to discharge the burden of proof.

25. The Magistrate appears to have rejected the appellant’s evidence without considering or analyzing it in an impartial manner. And the Magistrate convicted the appellant on the sole basis of PW1’s evidence, without thoroughly considering all the factual circumstances. The conviction is unsafe.

26. For the above reasons, I have allowed the appeal.