HKSAR v. SIN CHI YIN

HCMA511/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.511 OF 1998

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J U D G M E N T

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1. After his trial before a Magistrate on 4 May 1998, the Appellant, Sin Chi-yin, was found guilty of one count each of theft, claiming to be the member of a triad society and common assault. For the theft charge he was fined $2,000 and was ordered to pay compensation in the sum of $2,500; for the claiming charge, he was sentenced to 3 months' imprisonment suspended for 18 months and on the assault charge he was fined $1,000.

2. At the trial, the prosecution called two witnesses and the Appellant elected not to give evidence. No defence witness was called.

3. The incident giving rise to the charges occurred in the early hours of 19 January in a karaoke lounge in the Tsim Sha Tsui area. Mr Yung, who gave evidence as PW1 at the trial, was there in the lounge with his group of friends with PW2 Miss Lam among them. Miss Lam decided to leave the party early and while she was walking along the corridor on her way out, she felt that she was indecently touched. As the Appellant was nearby, she thought that it was the Appellant who had touched her and scolded him for what he had done. A heated argument between Miss Lam and the Appellant ensued. PW1 heard the commotion in his room and came out to inquire. At this point, the Appellant was joined by a group of some eight to ten men and they rushed into the room where PW1 and his friends were. Once inside, some four to five men surrounded PW1 and started to punch him with their fists. As the victim was being assaulted, one of the men whom PW1 identified as the Appellant claimed that he was

"No.14 Hung Fat Shan and followed Tai Ngan" "(big eye)".

The group left as quickly as they came and as they left PW2 told the Court that the Appellant snatched her cellular phone from her.

4. Shortly after the attack, PW1 went to the street to buy some cigarettes. He saw the Appellant in the vicinity and made a complaint to the police in a patrol car cruising nearby and the Appellant was arrested. At an identification parade held on 2 February Miss Lam was able to identify the Appellant as the person who snatched her cellular phone from her.

5. Apart from the two oral witnesses, two witness statements were admitted under s.65B of the Criminal Procedure Ordinance. The makers of the statements, Police Sergeant Wong Lap Fai, the triad expert and Chief Inspector Cheng Yiu Mo, who was officer who conducted the identification parade on 2 February were therefore not required to give evidence in court.

6. The record of proceedings shows that after conclusion of the evidence the learned Magistrate adjourned for some 30 minutes. When proceedings resumed, he gave oral reasons at the end of which he announced his decision to convict the Appellant on all three charges. The body of his reasons contains a short recitation of the evidence of the two witnesses towards the end of which the Magistrate stated that he found the prosecution witnesses to be honest and reliable and he accepted their accounts of the incident. He then went on to say that he had considered all the evidence, including the submission of defence Counsel, and was satisfied beyond reasonable doubt that the Appellant had committed all three offences.

7. I think it is of importance to note two matters by their conspicuous absence in the Magistrate's oral reasons : nowhere in it did the Magistrate mention the circumstances under which the two witnesses had purportedly identified the Appellant and the possible weaknesses of the identification evidence nor was there any indication by him of how he came to find that "No.14 Hung Fat Shan, 'Big Eye'" had any triad connotations. This absence of reference was the basis of, what in essence, the two grounds of appeal relied upon by Mr Cheung appearing for the Appellant.

8. In the Magistrate's written Statement of Findings prepared some three weeks later he had addressed himself on the issue of identification in some detail. He considered the fact that the witnesses had never met the Appellant before until the time of the incident; the difficult lighting condition inside the lounge and the confusion at the scene of which he resolved against the Appellant. No doubt this was, in the mind of the learned Magistrate, evidence crucial to the prosecution.

9. The question posed by Mr Cheung before this Court is this : did the Magistrate address himself to this issue at any time before or when he delivered his oral reasons? If he did not, it was argued, he would have failed to warn himself of the inherent weaknesses of the identification evidence along the lines of R v Turnbull [1976] 3 All ER 549, and it would have rendered the convictions unsafe and unsatisfactory. Mr Cheung also submitted that one cannot assume that the Magistrate, being a professional judicial officer, did remind himself of the weaknesses as the transcript of the record of proceedings revealed that no such references were made when he delivered his oral reasons.

10. In support of his argument, Mr Cheung cited a passage from the case of R v Wong Shing-fai [1991] 1 HKLR 372 in which Hooper J. allowed an appeal and ordered a re-trial for the reason that the trial Magistrate did not warn himself of the need for corroboration or on the matter of identification in a case of indecent assault in the Magistrate's short written judgment at the end of the hearing. My learned brother made the following observation at p.375 :-

"It is patently clear that the Magistrate did not, in his written judgment at the time, indicate that he had warned himself on either the matter of identification or corroboration. ...

It is clear that the magistrate did, in his statement of findings, indicate that he had warned himself of both these aspects of the case.

Leaving the statement of findings aside for the moment, I do not think it would be right for an appellate court to assume that the magistrate has given himself these directions in the absence of specific references to either of them. They are matters of extreme importance in a criminal trial, and it should be made abundantly clear from the record that the magistrate did warn himself."

11. The same point was taken again by the Appellant in R v Ho Shui-wah [1994] HKC 437, where the trial Magistrate made no reference in the notes of proceedings of the need and desirability of corroboration on charges of procuring a girl under the age of 21 to have unlawful sexual intercourse and living on the earnings of prostitution. In allowing the appeal and ordering a trial de novo， Keith J. said at p.439 :-

" In these circumstances, the critical question is whether the magistrate considered the question of corroboration at the time he convicted the appellant on the two charges, or whether the findings relating to corroboration in his statement of findings were ex post facto. If they were ex post facto, the convictions cannot stand because it would mean that in convicting the appellant on the two charges the magistrate had failed to address at the time a critical question relating to the appellant's guilt or innocence which the law require him to address."

He then expressed his agreement with the views by Hooper J. in Wong Shing-fai in the passage I had already quoted above.

12. It appears that the Magistrate in the present case had fallen into the same error. An accused person, if he is convicted, is entitled to know the reasons for his conviction. There is no requirement that a Magistrate must give detailed oral reasons of his decision at the end of each trial but if he does, he is expected to inform the person in the dock the salient features of his mental process in reaching his decision and that in so doing he had addressed himself on the relevant law and evidence.

13. I am aware of the workload in the Magisterial Courts and it would be unrealistic to suggest that their oral reasons should take the form of a carefully prepared written judgment. But good sense and practice requires that the important legal and evidential features of the case should at least be covered by the Magistrate in note form, albeit orally. Having said that, over-generalized statements such as "I have warned myself of all necessary warnings as required by law" or in the absence of specific references, phrases such as "I have considered all the evidence before me" is, in my view, inadequate.

14. In not appearing to have addressed himself on a vital question of law - in this case the quality of the identification evidence - the learned Magistrate had fallen into error. His subsequent coverage of the issue in the Statement of Findings did nothing to alleviate the impression and hence my concern that convicted the Appellant he had not addressed himself to the quality of the evidence. As the correctness of the identification of the Appellant by the two prosecution witnesses was a fundamental issue at the trial, I am of the view that the conviction is rendered unsafe and unsatisfactory and the appeal against conviction on the three charges must be allowed and the sentences set aside.

15. There is one other ground that needs to be dealt with on this appeal and it relates to the evidence and findings by the learned Magistrate on the charge of claiming to be a member of a trial society, contrary to s.20(2) of the Society Ordinance, Cap.151. The evidence of this charge came from three sources. There was oral evidence from both PW1 and PW2 that they heard the Appellant claiming that he is "No.14, Hung Fat Shan, follow Tai Ngan (Big eye)" and the witness statement of Police Sergeant Wong Lap-fai which was produced by agreement of the parties pursuant to s.65B of the Criminal Procedure Ordinance. The effect of an agreement under this section is that the contents of the statement becomes part of the evidence without having to call the maker to give evidence in Court. The Sergeant was to be the expert witness called by the prosecution to give evidence regarding the significance of the remark "No.14, Hung Fat Shan, follow Tai Ngan". The fact remains the status of the proposed expert and the contents of the statement need to be proved to the satisfaction of the Magistrate before he can act on them.

16. A charge under s.20(2) has the following two elements which must be proved by the prosecution before a defendant can be found guilty and they are :-

1. The entity named in the charge, in this case "No.14 Hung Fat Shan", is an active triad society in Hong Kong.

2. The Defendant in fact made the claim that he was a member of such.

The law does not require that actual membership be proved.

17. It is usual practice for the prosecution to prove the first element by calling a triad expert who has expertise on the subject to give evidence that the named entity is a triad society and is currently active in Hong Kong; its estimated membership; the nature and geographic areas of its illegal activities. At the trial this invariably involves a two-stage process which firstly the Court will have to determine and rule whether the witness called is an expert in the field for which he is called to give evidence. The agreement to produce the witness statement under s.65B does not absolve the Magistrate from his duty to make such ruling. If the status of the witness is in doubt, then the matter stop there. The second stage of the process is that if the witness is accepted as an expert, the Court would proceed to hear his evidence on the subject and make the necessary findings depending on the strength of that evidence.

18. In paragraph 5 on page 5 of the Statement of Findings, all that the Magistrate had averred to was that the Appellant claimed to be "No.14 Hung Fat Shan, followed Tai Ngan". Nowhere in the transcript of proceedings; in the oral reasons for judgment or in the Statement of Findings did the Magistrate rule that the Police Sergeant was accepted as an expert witness and gave evidence as such. There was neither any finding that "No.14 Hung Fat Shan" is in law an active triad society nor of the significance of the alleged remark by the Appellant. It appeared from the records that the Magistrate had taken upon himself to assume the role of a triad expert to come to such conclusions for which he was not entitled.

19. As there is no admissible evidence to prove the first element in the charge of claiming to be a member of a triad society, the appeal against this charge must also be allowed on this ground.