THE QUEEN v. MARIA LOURDES S. SANTIAGO AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 755 OF 1992

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BETWEEN

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REASONS FOR DECISION

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1. The 4 appellants in this case were convicted by a magistrate after trial on a joint charge of theft. They appealed against conviction and I allowed their appeals saying that I would give reasons later which I now do.

2. The first and principal ground of appeal is that the magistrate made a premature assessment of credibility.

3. The prosecution's case was that the 4 appellants, acting as a team, attempted to steal from the hand bag of a female pedestrian. The alleged victim did not give evidence at the trial and the prosecution relied entirely upon the evidence of a single police officer who allegedly saw the attempted theft. In his Reasons for Decision, themagistrate said :

"The prosecution's case was made up entirely of the evidence of PW 1. I consider him to be an accurate and truthful witness; I believe him. His evidence was subjected to a long detailed but fair cross-examination by Mr. Chui on behalf of each of the 4 defendants. The longer the cross-examination continued, the more I was convinced of the truth and accuracy of PW l's evidence. It proved so that I was sure beyond reasonable doubt that this was a joint enterprise by the 4 defendants and that the action of putting the hand inside the bag was more than a mere preparatory act."

4. Each of the appellants gave evidence at the trial, maintaining that they were innocent of the charge. A character witness also gave evidence to the effect that one of the appellants, the witness's nephew, was a respectable businessman of good character and that one of the other appellants was that appellant's secretary, who had worked for him for 8-10 years. There was unchallenged evidence that each of the appellants had a clear record. The magistrate did not believe the appellants and he convicted them.

5. At the hearing of the appeal, counsel for the appellants submitted that the above quoted remarks by the magistrate in his Statement of Findings show that he had made his mind up to accept the evidence of the sole prosecution witness even before that witness was cross-examined. My attention was drawn to the decision of the Court of Appeal in the Queen v. Wong Man Yuen (Criminal Appeal No. 301 of 1985) and in particular to the following passage in the judgment of the Court which was, delivered by Li V.-P. :

"Many a time in the course of proceedings judges hearing prosecuting evidence might feel that a certain witness was impressive and honest. But it would be a different matter, were he to conclude that he was truthful. He should have kept an open mind before all the evidence had been heard. It would be unwise for any judge to form a confirmed opinion that the witness was truthful until all the evidence had been heard. We come to this conclusion there was a distinct possibility that there had not been a fair trial."

Later, he said :

"As we said there was a real possibility that the judge was so impressed by the prosecution witnesses at the time when the prosecution closed his case and before defence evidence was heard that he formed the impression that the two witnesses were truthful. We are not completely satisfied that there had been a fair trial."

6. In the present case, the magistrate gave no reason for disbelieving the 4 appellants and though he said that he took into account that each appellant had a clear record and took into account the evidence of the character witness, he did not say how he took into account. It would have been preferable if he had made it clear that he appreciated the relevance of the character evidence not only to the issue of credibility but also to the question whether respectable persons of good character would be likely to commit such an offence. He said that he took into consideration the fact that relatively large amounts of money were found in possession of the defendants which, he said, may have corroborated their evidence that they were in Hong Kong on business as well as for pleasure.

7. The appellants were entitled to expect.the magistrate to approach the defence evidence in a fair and impartial way. Unfortunately, this Statement of Findings suggests that he had made up his mind prematurely and there is a doubt in my mind as to whether the appellants had a fair trial. I therefore consider that the conviction was unsafe and accordingly allow the appeals, quash the convictions and set aside the sentences imposed on the appellants.