HKSAR v. THAPA MAGDALENA E

HCMA 1131/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1131 OF 1999

(ON APPEAL FROM WSCC 7453/1999)

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J U D G M E N T

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1. The Appellant appeals against her conviction and sentence in respect of a charge of Theft. The facts of the theft were that she stole from her employer the sum of $162.00 during a period when she was working as a shop assistant. The chief and only ground of the appeal is that the Tagalog interpreter provided by the court at trial, failed properly and/or fully to translate the proceedings and it is stated that of particular significance in this appeal was the mistranslation of questions which were asked of the Appellant, as well as her answers, both in chief and in cross-examination, when she was giving evidence in her own defence. The Appellant sought leave of this court to rely on an affirmation made by an independent Tagalog interpreter registered with the High Court. That affirmation was filed and leave was granted for the Appellant to rely on it, in respect of the alternative translations of the relevant court tapes.

2. The items of alleged mistranslation fall into several categories. It is suggested that there were specific mistranslations; it also suggested that various items were omitted from, or added to, statements and answers. It is suggested that at various times during the course of the trial the parties were talking at cross purposes. It is suggested that the interpreter at trial may not have been particularly proficient, or that the Magistrate might have been annoyed with what would appear to him as prevarications or hesitancy on the part of the Appellant and that these in some way affected his view of the evidence and reflected unfairly on the Appellant's credibility.

3. I have been through the transcripts of the trial. I have read Appellant's arguments and the transcripts of the 3 tapes that were translated by the independent interpreter. As was done in court by counsel, on this appeal, I have cross-referenced the items complained of and checked them. I have also taken note of the Magistrate's Statement of Findings.

4. I am satisfied having looked at all those areas that there is nothing in this ground of appeal. The Magistrate was fully aware of the issues in the trial. He was not hampered in any way by a poor translation and the complaints made now about the translation are such that they could be made of any translation in any court. The issues were not obfuscated in any way and the Magistrate quite properly, on what is very strong evidence, came to a decision about the Appellant's guilt.

5. I dismiss the appeal against conviction.

6. There was also an appeal against the immediate custodial sentence of 2 months' imprisonment imposed by the Magistrate. I am concerned about the imposition of that immediate custodial sentence, in particular because the Appellant was a woman in her thirties who had a clear record up to that point. The Magistrate for reasons that were not apparent from his Reasons for Sentence, apparently did not consider any other form of sentence, apart from the possibility, which he ruled out, of a suspended sentence. But what is more important is that no background reports were obtained, nor was consideration given to the possibility of a Probation Order, or a Community Service Order, for what was a first offender, who had a good employment record.

7. I accept that it is not always encumbent on a Magistrate when sentencing a first offender to obtain reports; however, I think as a rule of practice it is sensible that Magistrates seek such reports in all cases where a first offender appears on a fairly serious charge such as this.

8. I consider that if reports had been obtained, the Magistrate might well have come to a different conclusion about Appellant's sentence, and for that reason I allow the appeal against sentence to the extent of imposing a sentence of 3 weeks' imprisonment (which I understand the Appellant has already served) instead of the 3 months imposed by the Magistrate. In view of her age, her clear record, the small sum stolen and the single instance of theft, I consider that a sentence of 3 weeks' imprisonment will meet the needs of the case, even allowing for the fact that this was a breach of trust.

9. To that extent the appeal against sentence is allowed.