HKSAR v. CALOPE FLOR LAHER

HCMA 488/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 488 OF 2010

(ON APPEAL FROM ESCC 1002/2010)

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REASONS FOR JUDGMENT

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1.  This appeal was heard on 26 January 2011 and at the conclusion of the hearing I allowed the appeal, quashed the conviction and sentence and, having heard the parties, awarded costs of the appeal, the hearing in the court below and of the bail application to the Appellant. I advised that I would give my reasons at a later date. These are my reasons.

2.  The Appellant, on 27 May 2010, was convicted after trial in the Magistracy, by Mr Henry Mierczak of one count of Theft and was sentenced to 2 months’ imprisonment.  The trial was heard on the 19 and 27 May 2010.  The Magistrate gave an oral judgment immediately after the close of submissions on 27 May 2010.  A Notice of Appeal was filed on 31 May 2010.  On 3 June 2 010 the Appellant applied for bail pending appeal; that was granted by the trial magistrate.

3.  A Statement of Findings was prepared dated 15 June 2010.  A hearing date for the appeal was fixed for 12 October 2010, but that hearing was vacated as transcripts of the proceedings were required.  The appeal was heard on 26 January 2011.

FACTS

4.  There was little dispute about the background facts generally.  The Appellant, a Filipina national, was employed as a domestic helper by Mdm Chan Lai-ying, PW1.  The family comprised the parents and three children.  There were 2 other women helpers, both Indonesian, and a driver.  Each helper was responsible for one of the children and in addition each was assigned separate housekeeping duties by PW1.

5.  The Appellant began working for PW1 in July 2008.  At the time of this incident she was responsible for care of the bedroom and clothing of PW1.  At night the Appellant slept on the floor of the children’s room as she had no room of her own.  Most of her belongings were kept in a room used by all three helpers.  That room, which had no lock, contained a wardrobe, which had no lock either.  What was contained in that room was accessible, not just to the occupants of the apartment but to anybody who visited the apartment.

6.  On 9 March 2010 PW1 reported to the police that the Appellant had stolen six pairs of children’s shoes and three pieces of clothing; 2 cashmere sweaters and one tube top with spaghetti straps (referred to as a vest).  The Appellant maintained that the sweaters had been given to her by her employer, PW1, when the employer was changing the seasonal wardrobe in November 2009 and that the shoes had been given to her by PW1 a few months after she began work in July 2008, during a house clearing exercise.  The vest had been purchased by her at a second-hand store in the Philippines.  The Appellant was later charged with the theft of the items.

GROUNDS OF APPEAL

7.  Re-Amended Perfected Grounds of Appeal were filed by the Appellant’s counsel, Mr Tibbo, who had also been trial counsel.  Overall it was alleged that the Magistrate had not considered the evidence adequately and that in consequence the Appellant had been convicted unjustly.  In brief the grounds were that:

(1)  The evidence of PW1 was flawed, vague and contradictory and should not have been relied on by the Magistrate.

(2)  The Magistrate failed to strike a fair balance between the evidence of the prosecution witnesses and that of the Appellant.

(3)  The Magistrate made material findings of fact which were not based on evidence at trial;

(a)     he found that the room where the alleged stolen items were found was the Appellant’s room, although the evidence was  that the room was shared by all three domestic helpers.

(b)     he found the Appellant had given evidence of a bad relationship with PW1 and based on that concluded that the Appellant contradicted herself in her cautioned statement by saying that she had no problems with PW1.  The Appellant had never given such evidence.

(4)  The Magistrate failed to take into account material evidence when making findings of fact.

(5)  The Magistrate wrongly drew an irresistible inference that the Appellant had formed the requisite intention to steal, but had not considered that the evidence allowed a competing reasonable inference that the Appellant had never formed such an intention.

(6)  The Magistrate erred in failing to consider the possibility of a setup and in preventing trial counsel from pursuing this line of defence.

(7)  The Magistrate produced two judgments; material findings of fact in the initial oral reasons were deleted from the formal Statement of Findings and new findings were added to the Statement of Findings which were not included in the oral judgment

(8)  The verdict was allegedly unsafe and unsatisfactory and the conviction should be quashed.

8.  The Magistrate dismissed the possibility of a set-up largely on the basis that the employer/employee relationship was “very good”.  The person who said the relationship was very good was the employer and although there was no major precipitating argument or quarrel prior to this incident it is quite clear that PW1 was a demanding employer.  The employees survived on a limited diet; at least two of them slept on the floor; it was made plain that they were servants and therefore to be treated on a different basis from the family and comments volunteered by PW1 in her evidence showed that she regarded them as dirty and untidy. [B76 D-M]

9.  Evidence was given that the Appellant on 8 March 2010, the day before the incident, was taken to task for re-using fabric conditioning sheets intended only for family laundry, in the helpers’ drier.  PW1 had also scolded the Appellant for consuming some soup which was only for the family.

10.  At 1:00am on 9 March 2010 PW1 decided to take a bath and could not find a particular towel.  Despite the hour she had woken the Appellant and ordered her to look for it.  The Appellant searched until 4:00am without success.  She went to bed and at 7:00am woke to prepare breakfast for the child in her care; again PW1 questioned her about the towel, suggesting it had been stolen and that police would be involved if she refused to admit it.

11.  Apparently angry that the towel was not forthcoming PW1 went directly to the room shared by the helpers, ostensibly to search for the towel.  She pulled all the clothes from the cupboard where the Appellant had indicated she kept her belongings, and discovered among them the items which PW1 claimed had been stolen.

12.  At the time PW1 searched the cupboard the helpers were not in the room.  Although it was suggested that they were in the vicinity of the doorway, it was not established that any of the helpers saw what PW1 had done.  The Appellant gave evidence that she could not see from where PW1 found the allegedly stolen articles.  PW2 did not see what PW1 did either.

13.  The Appellant gave evidence that the vest was kept in a different place from the two sweaters, but PW1 insisted that she had found all three items together in a plastic rubbish bag.  The shoes in a white plastic rubbish bag clearly marked with the Appellant’s name on it, were found at this time.

14.  It is noteworthy that PW1 gave several different accounts of how and when she had discovered these items were missing.  The Magistrate in finding that PW1 gave clear and accurate evidence seems to have overlooked this point.  Indeed, it is not clear from his oral judgment, or his Statement of Findings, whether he appreciated fully that PW1 had given several accounts of her discovery that the items were missing, or that PW1 had not made any complaint to the police about missing items even though on one account, she had been unable to find them in July or December, 2009.  In another account PW1 said she did not know the items were missing until she found them in the wardrobe on 9 March 2010.

15.  The Magistrate overlooked the evasive answers given by PW1, and seemed unaware that a lot of questions were left unanswered by her, or were avoided by her giving a tangential, or an ambiguous response.  It was probably because of the Magistrate’s failure to recognise or reconcile discrepancies in the evidence of PW1 that he made errors in both his oral judgment and, later, in his Statement of Findings.

16.  The Magistrate prefaced his oral judgment by saying that he had carefully considered all of the evidence together with the submissions and that what he was giving was not full and complete reasons.  However those reasons were stated in a very disjointed and confusing manner, contained material errors of fact, took evidence out of context and adopted such a broad brush approach that it is difficult to be satisfied that proper attention was paid to discrepancies.

17.  When a Statement of Findings is preceded by an oral judgment of some length, there is always the risk that differences of greater or lesser significance between the two formats will become apparent. Often, when a court has had a longer time to consider the ramifications of the evidence, it will reach different conclusions about individual items of evidence and form different opinions about the credibility and accuracy of the witnesses.

18.  The Magistrate gave two versions of his view of the evidence relating to how PW1 discovered the theft.  In his Statement of Findings he gave an account (see underlining) which was not borne out by the evidence.

19.  The Magistrate stated:

“PW1 said she had a very good relationship with her. (the Appellant). From time to time things in the house had gone missing. PW1 had noticed the subject missing items and had asked the appellant about them. The appellant said she had no idea where the items were.”

“PW1 thereupon searched a wardrobe which was used by the three domestic helpers (including the appellant) and the subject items were found there. She located on various photos produced where those items were found. Thereupon PW1 took out the items one by one and asked the Appellant why they were there. At first the appellant did not reply.” [B17 para. 2 and B18 para. 1]

20.  This differed from what he said in his oral judgment:

“And as I say she (PW1) gave an honest and believable testimony and as I said I believe her. She said as a result of the dispute with a towel, and her suspicions she went and looked in your room. There she found the items subject of the charge. She said they’re not your items they were PW1’s items and she didn’t give them to you and I believe her.” [Page 2 para. 3 H-J]

21.  Again that was not an accurate recounting of the evidence given by PW1.

22.  The Respondent conceded that the Magistrate had erred in this respect.

23.  It is not clear from either judgment whether the Magistrate was aware that PW1 had given several accounts of how and when she had discovered the items were missing.  The Magistrate simply dismissed any discrepancies in PW1’s evidence as minor, but failed to consider why there were discrepancies, made no attempt to reconcile them and failed to consider how they might affect PW1’s credibility.

24.  The Magistrate accepted without question that PW1 gave honest and believable testimony.  He found that PW1 had shown no ill will or malice in giving her evidence, completely ignoring the comments made by PW1 that the helpers’ room was dirty, smelly and not a place where her husband would go, or her children would be permitted to enter.

25.  The Magistrate blocked trial counsel’s attempts to show that the incident was, or might have been, a setup when trial counsel tried to lead evidence showing that PW1 may have had a reason, or, was trying, to rid herself of an employee she possibly regarded as unsuitable, unsympathetic or superfluous and thus might be prepared to accuse the Appellant falsely.

26.  This may not have been a strong part of the Appellant’s attack on the evidence, but there was some basis for it as evidenced by PW1’s behavior towards the Appellant in the 24 hours before the report to the police and in the derogatory comments made by PW1 about the helpers generally.  The Magistrate refused to allow questions on that basis; that was unfair in light of the allegation against the Appellant.

27.  In accepting PW1’s assessment that a very good employer/employee relationship existed the Magistrate omitted reference to the allegations of theft of the towel, the peculiar behaviour of PW1 in waking the Appellant at 1:00am to search for the missing towel and thereafter the repeated threats that police would be called unless the Appellant admitted theft.  Further, the Appellant had been pressurised by PW1, for several hours from the time of the search until the police arrived, to ‘confess’ to the alleged theft.  The Appellant would not do so – despite being assured by PW1 that if she admitted it, the police would not be called.

28.  The Magistrate declared that he had not been impressed with the Appellant’s evidence without giving any cogent reason why that was.  He claimed that the Appellant had been untruthful in saying there were no arguments between her and PW1, when in the witness box she had given “a litany of arguments” claiming she had been accused of theft many times.  It is difficult to understand his meaning as the rather confusing paragraph in the transcribed oral judgment shows:

“As I say -- you also say that -- and I’ll refer to is already that there was no arguments between you and the employer. Yet in the witness box you give a litany of arguments with her about being accused of various you said she did it all the time I think you said once she always accused me everything like that. Nothing to the police when you voluntarily made cautioned statement. No argument.”[page 3J-M]

29.  There were two factual errors in this assessment.  The Appellant had not given evidence about a history of arguments and there had been no dispute about the towel.  There had been allegations by PW1 of theft of the towel.

30.  In fact what the Appellant described in evidence was an objective view of the behaviour of PW1 in dealing with missing items: her common reaction was to assume and/or allege theft by the employees and threaten a report to the police.  The Appellant described what might be inferred as an up and down relationship and was supported in that view by the evidence of PW2, another helper.

31.  Counsel for the Appellant submitted that the Magistrate failed to consider adequately the question of inherent improbabilities.  In his oral judgment the Magistrate gave fleeting consideration to inherent improbabilities as follows:

“it is put to me in submissions why would she take it, the items, and risk coming to Hong Kong again and working, etc and jail and that sort of stuff. And the reason is simple and I am and I’m sure of this because she thought she’d get away with it. Um rich employer who has a lot of items, etc” [VJ page 3 R-T].

32.  That passage was not repeated in the Statement of Findings.

33.  The Appellant was a woman of 39 years, who had worked in Hong Kong apparently without complaint or trouble from 1995 to 2003. She had then returned to the Philippines.  After starting a family she returned to Hong Kong and from July 2008 she had been employed by PW1.  From 2009 she had had sole responsibility for the care and custody of PW1’s clothing.  She was the only helper with authorised access to PW1’s bedroom.

34.  It would be inevitable that if any clothing, jewellery, or money went missing enquiries would be made of her first. Certainly she would be suspected of theft, because from the evidence of the Appellant, PW2 and impliedly, from the evidence of PW1 herself, whenever an item could not be found PW1 was quick to allege theft by the employees and threaten a police enquiry.

35.  According to PW2 items went missing from time to time but were usually found again.  She had worked for PW1 since September 2007 and she recalled only one incident when a lost item had not been recovered.  As eight persons lived in the apartment, three of whom were children, it would have been surprising if items had not gone astray from time to time.

36.  The Appellant could have been in no doubt that if she had taken any item that she would be blamed and a report made to the police.  Thus it is highly unlikely that she would have retained items in the house if she had stolen them.  There was no secure place she could keep them and most of her belongings were in the unlocked cupboard in the unlocked room, accessible to anyone who entered the apartment.

37.  According to the Appellant, the sweaters were kept in a white plastic rubbish bag; the vest was kept in a suitcase elsewhere and the shoes were in a white plastic bag with the Appellant’s name on it.  In no instance was any item in e.g. a locked suitcase or trunk – a fact which lent support to the Appellant’s account of why and how she had the clothes with her belongings.

38.  The alleged stolen items were placed in the part of the cupboard where the Appellant’s other belongings were kept.  They were not, for instance, concealed within the belongings of one or other of the two helpers, nor placed in a storeroom, or elsewhere in the house.

39.  The Appellant said that she had been given the shoes a few months after July 2008.  The sweaters were part of a quantity of clothes discarded by PW1 and given, through the Appellant, to all the helpers in about November 2009.  The theft allegation arose in March 2010, which prompts the question why, if the Appellant had stolen the items, she would run the risk of them being discovered amongst her belongings.  It would have been simple to remove them from the apartment, for example, to post them home, or to ask a friend to keep them for her outside the apartment.

40.  A further matter which makes such a theft seem improbable is that the Appellant, with a child to support, would risk her job and the prospect of future employment in Hong Kong by stealing two non-descript sweaters, a worn vest which had seen better days and six pairs of children’s shoes which were well-worn and grubby.

41.  None of those matters appear to have been considered by the Magistrate, although he had taken into account the Appellant’s clear record as to credibility and propensity.  He gave no explanation why he found the Appellant an unreliable witness.  In fact her account of events had been consistent throughout and insofar as there was any supporting evidence by PW2 and PW3, it went to strengthen the account of the Appellant rather than that of PW1.

42.  The Magistrate failed to consider the confusion in PW1’s evidence as to whether and when she found the items missing.  He did not take into account for instance the possibility that PW1 had given the items to her employee and had forgotten doing so.  He refused to allow questions even on a limited basis about a possible setup despite having evidence before him that the relationship between the employer and her employees was not as rosy as PW1 tried to paint it.

43.  A further instance of the Magistrate’s misunderstanding and misquoting the evidence to the detriment of the Appellant occurred in relation to a man’s hat and a wallet.  After PW1 found the allegedly stolen items it was not disputed that she went to a store room and took out a number of items, including a man’s hat and a wallet.  She put the hat and wallet with the sweaters and shoes and, according to the Appellant, asked her if they were two of the “many things” that the Appellant had stolen from her.  The Appellant denied stealing these items.

44.  The Appellant gave evidence the hat and wallet were still there when the police officer, PC 33588, (PW3) arrived to investigate the complaint.  PW3 asked her where the hat and the wallet were found.  The Appellant said that they had come from the storeroom, so PW3 had returned the hat and the wallet to the storeroom.  When PW1 was cross-examined she at first denied the existence of the hat and wallet and was evasive in answering questions about those items.

45.  Despite having taken the hat and wallet from the storeroom and made the accusation of theft to the Appellant, PW1 did not pursue her allegations of theft in relation to those items.  When cross-examined PW3 said only that he had not paid attention to whether the hat and wallet were with the other items.  However he did not say that they were not there.

46.  In his Statement of Findings, the Magistrate found, incorrectly, that the Appellant had agreed that PW1 had never accused her of taking the hat and wallet when it was clear that the Appellant had not agreed that at all:

“Further although a hat and wallet had been found at the same time, the Appellant agreed PW1 had never accused her of taking items.” [B21-para 3]

47.  In his oral judgment the Magistrate commented on PW3’s evidence as follows:

“He gave evidence he did not know about this hat and wallet. He didn’t say it didn’t exist or…

Now PW3, that is the police officer gave evidence and he was referred to the hat and the wallet for instance and he said I can’t remember if they were there or not and they weren’t the subject of any charge so why would be have particularly recalled another they were there or not.”

[OJ page 2 O-R]

48.  The Magistrate either forgot or did not understand what had been said about the hat and wallet; but whatever the reason he misquoted the evidence given by the Appellant.  Although the hat and the wallet were not charged as stolen items, the incident points to PW1’s strange behaviour at the time of this incident.  On one view it is possible to say that she intended, or may have intended, to falsely accuse the Appellant of theft of the hat and wallet.  It was at least arguable that she was trying to include the hat and the wallet as stolen items.  The Magistrate did not take this into account when reviewing the credibility of PW1.  Nor did the Magistrate consider this evidence in the light of a possible setup; he ignored it altogether, a course which was hardly fair to the Appellant.

49.  After examining the matters outlined above including the confusing, misunderstanding, or misquoting of evidence and the differences between the oral judgment and the Statement of Findings, I could not be sure that the Magistrate drew the correct inferences when making his findings.  Further, his failure to look carefully at the inherent improbabilities, or to allow investigation of the possibility of a setup, meant that he accepted the evidence of PW1 without subjecting it to the rigorous scrutiny it called for.

50.  I concluded that the conviction was unsafe and accordingly I allowed the appeal.