HKSAR v. WINNER VEGETARIAN RESTAURANT LTD. AND ANOTHER

HCMA 1193/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1193 OF 2002

(ON APPEAL FROM KTS 23734-63/2001)

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J U D G M E N T

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1. This is an appeal against conviction by a company called Winner Vegetarian Restaurant Limited - the 1st appellant, and one of its directors, Miss Alice Ng who is the 2nd appellant. Both appellants faced 15 summonses each for offences contrary to section 7 of the Mandatory Provident Fund Schemes Ordinance. In a word, the limited company employed employees in respect of whom payments to the fund had to be made. It was established without dispute at the trial that payments should have been made but that in fact they were not.

2. The issue that determined the matter was basically one of credibility. Five employees were called. The first of those, PW1, was the second-in-command after the 2nd appellant. The evidence of those five employees established that their contributions had not been made. That was supported by PW6, a person from the bank that runs the scheme in question.

3. It was the case that the evidence of PW1 was supported particularly by the evidence of PW4 and PW5 because all of those witnesses gave evidence as to the 2nd appellant saying things which revealed her knowledge that the contributions were not being made.

4. The appellant gave evidence. Her case was that as far as she was concerned, the payments had been made. Money had been set aside for them, even though her company was experiencing financial difficulties. She said that PW1 had conspired with the other employees to tell a false story. The conspiracy between them was a deliberate one to injure both her and her company.

5. In a long and careful statement of findings, the magistrate, Ms Bina Chainrai set out the evidence and the issues and how she resolved them in respect of the central issue I have just described. I regret to say that nothing that the appellants have been able to argue before me today leads me to think that the resolution of those issues against her, and in favour of the prosecution witnesses, is other than accurate and based on common sense. It goes without saying that the magistrate who sees and hears the witness is in a much better position to judge the issue than I am here, looking at the material on paper.

6. Notwithstanding that, if, looking at the material before me, it did raise a doubt in my mind as to whether the convictions were justified by the evidence, I could still quash the conviction. However, as I have already said, there is nothing in the material that would lead me to such a view.

7. That is not the end of the matter because two further points are taken and they have been argued by the 2nd appellant on her own behalf and on behalf of her company. She has not been represented either here or below. And the second point she addressed me about is this: that she said she did not have a proper opportunity to say what she wanted to say in evidence at the trial.

8. The statement of findings reveals the magistrate relating that she explained the procedure at the commencement at the trial and that she explained the rights that the defendant had when it came to the time of her electing to give evidence. Not only that, when the appellant was making her closing address, which occupies no less than 15 closely-typed pages of transcript, the magistrate did have occasion to intervene and say a matter being raised had not been raised in evidence. And in an exchange that appears at page 662 of the transcript, the magistrate said to the defendant, without contradiction, "I told you what you had to say had to be said under oath."

9. In a subsequent application for review of the convictions which lasted some hour and a half, most of which was taken up by the 2nd appellant addressing the magistrate, the defendant said that she did not know that when she was in the witness box that she was actually given an opportunity to talk about all that she wanted to say. The response of the magistrate - a very experienced magistrate - was that "you were told specifically by me that this was your opportunity to speak and say what you want to say."

10. The trial of this matter took five days of court time. I do not have a transcript of it all and there is no reason for me to do so. But I have quite a lot of transcript which covers the submissions made at the close of the case and upon the application for review and, if I may say, it displays conspicuous patience by the magistrate who sat there and carefully and politely listened to the very lengthy arguments and submissions that were made to her. The matter which did appear at page 662 of the transcript, upon which there had been no evidence, was not one that would have prompted the magistrate in the circumstances of the case, to reopen the evidence and have any witness recalled.

11. There is nothing in this ground.

12. The third matter arose in this way: that originally it had been the intention of the prosecution at the trial to rely on things said under caution by the 2nd appellant. As the trial progressed, counsel who was prosecuting changed her mind and decided just to rely on the evidence from the employees and the bank. She was quite entitled to do that. It is a commonplace in summary trials and it occurs normally when a prosecutor assesses the evidence he has called as being sufficient and good such that he need not open up a further avenue of evidence based on confession.

13. Accordingly, the two inspectors from the Mandatory Provident Fund, who were going to speak to what was said under caution, were not called. However, the appellant makes the point that she wanted to ask those inspectors some questions. She raised this with the prosecutor. The prosecutor declined to tender those witnesses for cross-examination and said, "If you want the witnesses, you call them. They will be your witnesses and I will be able to cross-examine them." Given that that was the position, the 2nd appellant made the decision not to call those witnesses herself.

14. I knew well in advance that this argument was to be advanced, since the point was taken in the appellant's grounds of appeal. I have had the opportunity to look at the principles involved as to when a court will interfere with the discretion of the prosecutor as to what witnesses he calls or tenders.

15. The highest the case for the appellant could put would be based on what Keith J, said in the Court of Appeal in the case of R v. Law Loi On CACC 663 of 1994. He said:

"Once the defence has been informed that particular witnesses will be called, prosecuting counsel must remember that he is under a duty to call them unless he takes the view that they cannot be believed."

16. On the face of it, those words cover the situation here. However those words must be read in the light of the facts in Law's case, where the witnesses in question were capable of giving relevant and credible evidence of the events in question, which could support the appellant's version and discredit the prosecution witnesses' version of the material events.

17. Keith J was not referred to R v. Russell-Jones [1995] 1 Cr App Rep 538 in which Kennedy LJ undertook a similar exercise to that Keith J had done in setting out the relevant principles. He said in this regard:

"The next principle is that the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witnesses' evidence as unworthy of belief."

He added that:

"This limitation of the prosecution's discretion, which requires witnesses of the central facts to be called, is supported by what was said by Lord Roche in Seneviratne."

18. So what is the situation where the prosecution indicated that witnesses were to be called, but then changed its mind so that the issue to which they would have spoken is no longer an issue in the case?

19. Looking at the cases it seems to me that if the witnesses could give evidence of primary facts then they would have to be called or tendered by the prosecution. If they could not give evidence of the primary facts then the prosecution is not under such an obligation.

20. In other words, I would interpret what Keith J said to be subject to what was implicit in the case before him, namely that the relevant witnesses did speak to the primary facts.

21. The reference to Seneviratne v. R [1936] 3 All ER 36 takes one to a decision of the Privy Council. Like all these authorities it makes the point that each case depends very much on its facts, but it also made clear that the witnesses the prosecution was bound to call or tender were those "essential to the unfolding of the narratives on which the prosecution is based ... whether the effect of their testimony is for or against the case for the prosecution".

22. It is thus that cases like R v. Taylor reported in the Times on 11 December 1995 are good authority for the proposition that, even though a witness has his statement in the prosecution's committal bundle (with all that tells the defence), they are not obliged to tender that witness if he does not speak to primary facts but could speak relevantly to issues of credibility in the case.

23. There were two matters (leaving aside questions which would have been asked about the admissibility of what was said under caution) upon which the appellant wanted to question the inspectors. One was concerning the decision made to prosecute both the company and herself. Her case was that proceeding against both of them was part of a conspiracy between the Mandatory Provident Fund Authority and PW1, Chu Pui-wah, to "doom her'. The second point was to ask them why they would not have allowed what she had requested, namely that there be a confrontation between her and Chu Pui-wah (PW1).

24. My assessment of these tactics on the material before me is that they were doomed to failure and likely to rebound to the appellant's detriment. Even if I were wrong about that and something sensible could have come of it, its relevance was essentially to the credit or credibility of PW1, given the issues in the trial.

25. I thus determine that the prosecutor below was entitled to decline either to call or tender the inspectors. It was a matter within her discretion which was properly exercised. She had made sure that the witnesses were available at court for the appellant as was her duty. I have not forgotten that the appellant was unrepresentated, but in the circumstances, and I borrow the words of Kennedy LJ;

"To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case. No sensible rule of justice could require such a stance to be taken."

26. If I were wrong in my view of the law and there was a duty to tender the inspectors, I would still uphold this conviction. I would do so as I could not conceive of anything positive arising from the questioning of these witnesses which could have upset the findings of fact made by the Magistrate. To think otherwise would be to promote theory at the expense of reality and commonsense. If either or both of the appellants had been represented, I would have no doubt that no application would have been made to cross-examine the inspectors on the above basis.

27. So, even if there was an error below in this regard, I would not be persuaded to exercise my powers under section 119 of the Magistrates Ordinance in favour of the appellant. It simply would not be just to do so.

28. Accordingly, for those reasons, in the case of both of the appellants and in respect of all the summonses they faced, I confirm the order of the Magistrate convicting upon them.

29. Finally, I would just like to mention one thing. The Statement of Findings recorded an assumption by the Magistrate that both the appellant company and the 2nd appellant, had clear records. Such things should not be the subject of assumption. They should be the subject of evidence or admission. Not surprisingly, given that this was an experienced Magistrate, her assumption was a correct one, but she should not have been put in this position as it was the duty of the prosecutor, prosecuting unrepresented persons, to inform the bench of the fact of the clear records. It should have been done in this case, but no mischief occurred in view of way the Magistrate dealt with it, but character should not be a matter of assumption.