THE ATTORNEY GENERAL v. WONG CHI FAI AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1166 OF 1988

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BETWEEN

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J U D G M E N T

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1. This is an appeal by way of case stated under the provisions of section 105 of the Magistrates Ordinance, Cap. 227. The magistrate stated the case in the following terms:

"1. At Western Magistracy on the 26th day of July 1988, the respondents appeared before me on a "charge preferred by the Appellant alleging that they and others, at the Fairwood Fast Food Shop, Aberdeen, in Hong Kong, on the 28th day of October, 1987, did behave in a disorderly manner, whereby a breach of the peace was likely to be caused, by shouting, running, and kicking tables, contrary to section 17(B)(2) of the Public Order Ordinance, Chapter 245. To this charge they pleaded not guilty. After hearing the evidence adduced by the Crown in support of the charge, I ruled there was no case to answer for either Respondent. I awarded costs against the Crown in favour of each Respondent in the sum of $500HK.

2. AND WHEREAS the Appellant, being dissatisfied with my dismissal of the said charge has, pursuant to section 105 of the Magistrates Ordinance, Chapter 227, duly applied to me in writing to state and sign a case setting forth the facts and the grounds on which my orders were made so that he might appeal therefrom to a Judge of the High Court.

3. NOW THEREFORE I, the said magistrate, in compliance with the application and the provisions of the Magistrates Ordinance, do hereby state and sign the following case:

CASE

Defence counsel did not cross-examine the witness.

(4) The third Crown witness was PC HO Man-tsan, PC 45644. He confirmed the evidence of PW2 in all relevant particulars in his evidence in chief. There was no cross-examination. The Crown then closed its case.

(5) Having heard submissions from both the defence and the Crown, I ruled there was no case to answer. I considered the term breach of the pace' in R v Howell (1981) F3 Criminal Appeal Regulation 31 C.A. as 'There is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot unlawful assembly or other disturbance."

This definition was cited with approval in KAM Man-fai v R, CA 93C/83.

The instant situation simply involved a noisy group of youths.

I cannot accept the evidence of PW1 that he thought one of them was trying to sell soft drugs.

The police were called, they spoke to the group, and an offer to fight was made by NG Chi-hon,and some of the group slapped some tables and kicked some chairs and tables.

Amazingly PW1 as the Assistant Manager at the time did not at any time request the group to leave the premises.

In fact PW1's evidence was that the police arrived, spoke to the group; and then came up to PW1 and told him the matter had been solved and they would tell the group to leave.

It was not the decision of'the police to ask the group to leave, it was the decision of the occupier of the premises or his agent or employee.

If the problem had been solved as PW1 said and PW1 did hot request the group to leave, they were prefectly entitled to remain there and the police had no right to request the group to leave in the absence of so being asked by PW1.

I accept that he agreed to their suggestion which was in the circumstances reasonable.

However, there is no evidence that the defendants were ever asked to leave, the premises.

There was no harm done to any person. From the evidence PW1 was not frightened and neither PW2 nor PW3 gave any indication in their evidence of believing that any harm was likely to be done.

This was simply a noisy group no doubt obnoxious and arrogant but the fact remains that until such time as they were asked to leave they were entitled to remain.

In my view there was simply insufficient evidence to justify finding a case to answer.

The questions of law arising on the above statement for the opinion of' the Judge of the High Court therefore are:

1. 'Firstly, whether I conducted the trial according to law';

2. 'secondly, whether I erred in ruling that there was no case to answer'.''

2. Mr Grenville Cross who appears for the appellant, argues that he conduct of the trial by the magistrate, by entering into the arena during the presentation of the Crown's evidence was improper and prevented the Crown from having a fair hearing of its case. Justice must be done to the Crown as well as to the defence. He relies on a decision of Kempster, J.A. in A.G. v. TUNG Ying-chuen, Crim. App. No. 20/87:-

"We think, even without recourse to authority that here the judge failed to do justice to the Crown. After all the interests of the community have to be considered as well as those of the individual charged."

3. It is wrong, says Mr Cross, for the magistrate to indicate his view of the Crown evidence during, its presentation as it is for him to indicate his view of the defence evidence during its presentation. Mr Cross complains that not only did the magistrate indicate his view but he threatened to award costs against the Crown if the prosecution persisted in going on with the case. This was at a time when only the 1st prosecution witness had given evidence-in-chief. He submits that it was wholly improper for the magistrate to tell the parties, before hearing all the evidence, that he intended to rule "no case''. In this connection he cites from the judgment of Roberts, C.J. in R. v. LEE Yung-chi M.CA. 1004/86:-

"I need not refer to any authorities for the proposition, which is indeed self-evident, that it is improper for a court to reach a decision as to whether or not there is a case to answer until it has heard the whole of the evidence which the Prosecution wishes to put before it."

These words by Roberts, C.J. were cited with approval by Garcia, J. In R. v. LAM Yuk-chuen MA 178/87 where he stated he:-

"' ... would only add that the prosecution is entitled to put its case in full before a judge or a magistrate before it is ruled upon, and it is wrong to indicate his view of the prosecution case whilst evidence is still being adduced on its behalf.'`

The last two cases referred to above were cited by O'Dea, J. in The A.G. v. WONG Kwok-hin MA 674/87 and followed. He also added that in his view the legislature seems to have embraced the view of the Chief Justice as section 19(1) of the Magistrates Ordinance, Cap. 227 which provides:

"Where the defendant is present at the hearing, the substance of the complaint or the whole of the information shall be read over to him .... if he does not admit the truth of the information as aforesaid, then the magistrate shall proceed to hear upon oath the complainant or informant and such witnesses as may be produced in support of the complaint or information...''

4. Mr Cross submits that the blatant threat to the Court Prosecutor that, if he called his evidence, costs would, be awarded against, the Crown, was not only in violation of the magistrte's duties as stipulated in section 19, Cap. 227, but it also amounted to a material irregularity which caused the Crown to be deprived of a fair and full hearing. Reference is made in this.connection to the.judgment of O'Dea, J. in A.G. v, Hung kam-lung and another MA761/87. The threat was, of a type, deprecated by. Jones, J. n CHUNG Wah-siu v., R. CA1182/82.

5. Mr Cross submits that in view of the stance taken at an early stage by he magistrte, the defence counsel clearly took his cue from the magistrate and did not cross-examine the Crown witnesses.

6. Mr Cross submits that if the court is with him on the first question and finds that there was a mistrial, it is unnecessary for the court to answer the second question. If, however, the court is against him in respect of the first question, then the second question comes into play. He submits that on an examination of the evidence and particularly that given by the second and third prosecution witnesses, there was clearly a case to answer.

7. Mr Ong who appears for both respondents submits that all the cases cited by Mr Cross could be distinguished on the basis that in the present case all the evidence of the Crown had been adduced before the Crown closed its case. He submits that the magistrate only advised the prosecution not to proceed with evidence after hearing the evidence in-chief of the 1st prosecution witness, and suggests that this was not a threat. He suggests that the magistrate, is a very experienced magistrate and should be given a freehand in the conduct of the trial. He argues that the defence counsel is also an experienced counsel and had a freehand at the trial and that there was nothing therefore irregular in the proceedings in the lower court. He also argues that on the evidence there was not a case made out in respect of the charge. If however, the court holds against him he argues that his clients have, through no fault of theirs, attended the court on no less than six occasions. Having been arrested in October 1987 the case was first mentioned in November 1987 in the Magistrates court when a hearing date was fixed for February 1988. It was adjourned on that date because a prosecution witness did not attend and a new hearing was fixed for April 1988. Again it was adjourned because of the non availablity of the magistrate. Finally, the case was concluded in July this year. Again the respondents, through no fault of theirs, have had to attend this hearing. He, therefore, urges the court to dismiss the case as being "so stale".

8. With respect I consider that the magistrate went too far in this case. It is quite clear on the authority cited by Mr Cross that the magistrate should not indicate what his intention is before the end of the Crown case. It is difficult to see how he could say that the two police witnesses, who were yet to be called, could not add anything to the evidence of P.W.1. It is quite clear from the case stated that the, 2nd and 3rd prosecution witnesses added considerably to the body of the evidence against the respondents, and in fact identified them as being members of the party who were behaving in a disorderly fashion.

9. I agree with the submissions of the Crown and answer the first question in the negative. As I am not required to answer the second question I will not do so. The appeal is therefore allowed and the orders of the magistrate set aside.

10. The question as to whether I should order a retrial depends on balancing the public interest against that of the respondents. Taking all things into account and in particular, the level of gravity of the offence, and the numerous court appearances which the respondents have had to make, including the appearance at the hearing of this appeal, I do not consider that it would be in the public interest to order a retrial and I refrain from doing so.