Nearly two months after the High Court acquitted Indonesian former domestic worker Parti Liyani of her conviction and sentencing for theft, the court last Friday cleared another migrant domestic worker of all 10 theft charges made against her.
Portela Vilma Jimenez, a Filipina, was charged with making allegedly unauthorised withdrawals from her then-employer Yong Choong Hiong’s bank account eight times over a period of two months in 2017.
She stood trial, putting forth the case that the withdrawals were possible because Mr Yong had agreed to give her money in exchange for sexual favours on her end and that he had given her his PIN number to allow her to make withdrawals.
She was subsequently sentenced to 12 months’ imprisonment by District Judge Jasvender Kaur earlier this year.
Ms Jimenez then appealed against her conviction to the High Court.
Justice Chua Lee Ming acquitted Ms Jimenez immediately after a 20-minute break during the appeal hearing last Friday morning, concluding that a reasonable doubt had been raised on the charges against her based on several issues.
Defence raised questions on how Portela Vilma Jimenez was able to access then-employer’s ATM cards, PIN numbers
Two key issues raised by defence counsels Suang Wijaya and Syazana Yahya of Eugene Thuraisingam LLP — which were accepted by Justice Chua last Friday — were on how Ms Jimenez could access Mr Yong’s ATM cards and know the PIN numbers to the said cards.
This is particularly given the former policeman’s consistent reiteration during the trial that his wallet — which contained his ATM cards — was in his possession at all times of the day in his trouser pockets, even when he went to the toilet.
The prosecution, they submitted, did not explain how Ms Jimenez had managed to get the cards from Mr Yong even though he claimed that the cards were always with him.
Instead, it was the District Judge who had posited that Ms Jimenez had removed the ATM cards from the wallet in the drawer before Mr Yong woke up and returned the cards to the wallet when he was asleep, the defence lawyers argued.
On the prosecution’s end, there was no evidence whatsoever on whether Mr Yong had taken steps to secure his wallet by locking the drawer or if the drawer was accessible to all, they added.
Ms Jimenez’s lawyers also contended that while the Prosecution had never posited that she had seen Mr Yong keying in his PIN number when she accompanied him to buy groceries, the District Judge had done so, and had thus erred in that respect.
Another issue was that Mr Yong alleged in his police report that he had found out about the “unauthorised” withdrawals on 2 February 2017 and visited the bank to report the allegedly “unauthorised” withdrawals in the same week.
It was revealed during the course of the trial, however, that there was no record of Mr Yong’s purported bank visit in the first week of February 2017.
His police report was made only on 22 February 2017 — around three weeks after he allegedly discovered the “unauthorised” withdrawals.
“The only inference that can be drawn from these circumstances is that [Mr Yong] had known about and consented to the withdrawals all along. The alleged visit to UOB Raffles was a mere fabrication to give the false impression that he acted swiftly upon discovery of the allegedly unauthorised withdrawals,” said the defence lawyers.
Further, Ms Jimenez was still able to make the purportedly “unauthorised” transactions using Mr Yong’s two ATM cards even after he had allegedly found out about the “unauthorised” withdrawals and before he made the police report.
Justice Chua in his decision last Friday said that it is “highly unlikely” for there to not have been some “documentary record” of the transactions.
Stressing that the claim of an unauthorised withdrawal is “a serious matter,” the High Court judge observed that the UOB Bank officers “were clear that the standard procedure in such a case was to have a claim form filled up”, which Mr Yong did not do.
Unfair to convict the accused based on a case the Prosecution did not put forth and in which the accused did not have a chance to rebut: Defence
Citing Chief Justice Sundaresh Menon’s judgement in Mui Jia Jun, Ms Jimenez’s lawyers argued that it would be unfair to convict their client based on a case that she did not have a chance to address or rebut.
Chief Justice Menon in the aforementioned case ruled that it would be “fundamentally unfair” for a court to “make a finding that is adverse to the accused in respect of that weakness” if a case that supports the finding not been presented at the trial in the first place.
He added that such unfairness is “compounded” in a situation where the Prosecution has chosen not to put forth “a particular case theory that might seem attractive to a trial judge” for certain reasons.
Ms Jimenez’s lawyers noted that such reasons may include the possibility of the case theory being “not factually sound” and instead being “against the weight of the evidence”.
The defence also argued that the prosecutor during the trial acknowledged the presence of gaps in the Prosecution’s case.
The prosecutor contended, however, that the said gaps were immaterial to the issue of consent, as Mr Yong insisted that he did not consent to the withdrawals Ms Jimenez had been accused of making.
Ms Jimenez’s lawyers challenged this assertion, positing that even the District Judge herself had attempted to resolve the issues to convict Ms Jimenez.
“The Learned DJ had erred in law and fact in practically substituting her own narrative for that of the Prosecution’s,” they argued.
Over three years of investigations and court battle, unable to work due to proceedings
Ms Jimenez began working for the elderly Mr Yong in 2015 with a starting salary of S$550. It was then increased to S$580 in November 2016.
She also cared for Mr Yong’s wife, who had dementia and was wheelchair-bound.
Ms Jimenez was given only two off days in a month.
In the case of Ms Parti, she was not given a Bahasa Indonesia interpreter and instead was interviewed by a police officer, who took her statement in Malay before translating it and reading it back to her into English.
Ms Jimenez in this case was similarly not given a Tagalog interpreter, which her counsels argued might have been detrimental as she was “far from conversant in English”.
This is contrary to what was observed by the District Judge in her decision, namely that the investigating officer at the time did not ask Ms Jimenez in the second statement if she required an interpreter, as she was said to have been able to understand English during the first statement.
“Even though she was interviewed in a language other than a native tongue and was not given any prior notice of the interview, it is remarkable that the crux of the Appellant’s [Ms Jimenez] defence had been fleshed out from the start,” said Ms Jimenez’s lawyers.
Similar to Ms Parti’s case, Ms Jimenez, who is now 50, was unable to work as a result of the investigations following Mr Yong’s police report and criminal proceedings brought against her, as well as her subsequent appeal.
Both of them received substantive help from the Humanitarian Organization for Migration Economics (HOME) throughout their legal ordeal.
Mr Wijaya and Ms Syazana represented Ms Jimenez pro bono in her case.