R. v. SANTIAGO MARCELINA M.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 433 OF 1996

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JUDGMENT

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1. The Appellant was convicted of one charge of theft on the 2nd of February 1996 and was fined the sum $2500 and ordered to pay costs in the sum of $750.

2. The facts for the prosecution were simple. The Appellant was employed as a domestic servant and her employer, having doubts about her honesty, left a handbag containing four $100 notes in a room with the Appellant. She had noted the numbers of the notes. On her return to the room she checked the bag, found one of the notes was missing and called the police. After arrival the police searched the belongings of the Appellant. Initially the note was not found then the employer asked the police to search a knapsack belonging to the Appellant. In that bag, between the pages of a passport, the missing $100 note was found. Also found was a total of $5700 the property of the Appellant. Upon the $100 being found the Appellant claimed it had been placed in her belongings by her employer.

3. The first ground of appeal is that the Magistrate failed to keep a full minute, so far as the circumstances permitted, of the evidence of the witnesses. Mr. Halley referred me to a total of 10 passages in the evidence which were in varying degrees incomprehensible. I have every sympathy with hard working Magistrates and it is clear that in this case a full note was difficult to take. In particular PW1 was a witness who was somewhat erratic in her sequence of events and presentation of facts. Those passages which did not make complete sense did not relate to evidence going to the elements of the offence and were not sufficient to vitiate the conviction.

4. The second, third, fifth and sixth grounds of appeal related to hearsay evidence admitted by the Magistrate into evidence and to which he refers in his statement of findings. This evidence firstly related to previous thefts of money from the mother of the employer which were attributed to the Appellant and recounted by the mother to the employer and secondly to conversations between the employer and the police before she set the trap for the Appellant. These two pieces of evidence were on the face of them both prejudicial and hearsay. They could be led before the Magistrate provided that he used them only to "set the scene" but did not rely upon either piece of evidence to prove the guilt of the Appellant.

5. The Magistrate refers to the belief that earlier thefts had taken place on several occasions in his findings and all except one in circumstances where he appeared to do no more than explain why the employer acted as she did without using them to convict the Appellant. On the occasion of the exception the Magistrate said :

" Be that as it may I did examine closely the evidence of PW1's relationship with the defendant but detected no bad faith on PW1's part toward her. Although PW1 said that the defendant's work was unsatisfactory it was clear from her evidence that she depended on PW1's services when she moved to Shatin and she was prepared to overlook to a certain extent that aspect although clearly she was not prepared to put up with a maid who was a thief."

6. This evaluation of the evidence of PW1 and her relationship with the Appellant, on the face of it, presupposes the Appellant to be a thief before the incident which led to this trial. It may be that yet again the Magistrate was using this prejudicial and hearsay evidence in his setting of the scene but it is not clear that it is the case and I cannot find that he dismissed this evidence from his decision as to the guilt of the Appellant.

7. I do not need to deal with the rest of the grounds of appeal these grounds are sufficient for me to allow the appeal against conviction, to quash the conviction and to set aside the penalty.