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| The judge upheld the defense claim that the magistrate failed to consider evidence of a possible set-up |
The High Court has allowed a Filipina domestic worker’s
appeal against her conviction for theft of 1,700 renminbi from her employer, and
ordered a retrial, the date of which will be fixed at Eastern Court
Judge Frankie Yiu set aside the verdict of Eastern
Magistrate Lam Tsz-kan on May 16 finding Ana Liezel Berbana guilty of the
charge.
The judge upheld the argument by Berbana’s lawyer, Philip
Ross, that the magistrate had ruled based on incomplete evidence and incomplete
police investigation.
First, Ross said Lam erred in rejecting the defense of
fabrication by failing to consider all opportunities that Wong had to plant the
alleged stolen property in Berbana’s jacket.
Secondly, Ross said the magistrate erred in rejecting the
appellant’s account of why she signed a police notebook after a search of her
room was done, rather than signing before. The defense lawyer said Lam failed to consider
the evidence in support of Berbana’s claim before declaring it “unreasonable,
and therefore, not credible.”
Ross applied for costs, saying is has been a year since the
alleged theft happened and a retrial could take months. If the magistrate had
considered the strength of the defendant’s evidence, she would never have gone
through this trouble, he said.
“The money has been returned and she hasn’t got a job for a
year,” the lawyer said.
But Judge Yiu said he could not grant costs because the case
would still be retried.
Berbana was exultant after Judge Yiu pronounced his
decision.
“Panalo ako rito, wala naman talaga akong kinuha,” she said.
Before the hearing, she said outside the courtroom that Lam had
ignored her evidence that the police made her sign a search document without
searching.
Ross, who represented Berbana through Legal Aid in the
previous trial, said he would defend her again in the retrial if she nominated
him.
Berbana, now 34, was arrested on Dec 21, 2018 for allegedly
stealing 17 pieces of Rmb100 banknotes from her employer’s money box. Berbana
pleaded not guilty but was convicted by Lam and sentenced to six weeks in
prison on May 16.
The defendant claimed during the trial that Wong made up the
theft charge out of spite because she had complained about using her own money to
buy food for the household.
Despite her conviction, Berbana was able to pursue her claim
for one month’s wage in lieu of notice, unpaid salary, annual leave, air
ticket, and food and travel allowance in the Labour Tribunal.
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