ATTORNEY GENERAL v. MA CHIU KEUNG

Headnote

Dismissal of prosecution case without hearing evidence: s 84 District Court Ordinance- "acquittal" course, to adopt.

_______________

J U D G M E N T

_______________

Silke, V-P :

1. On 4th August 1986, Ma Chiu Keung - "the Respondent" - appeared in a District Court for plea upon a charge of robbery. Four persons were involved: The robbery was said to have happened on 22nd June 1986 at Fei Ngor Shan Road near Jat's Incline. The victim was a woman and there was taken a gold necklace, a gold pendant; a gold bracelet and $1,020 in cash. The trial was fixed for 29th September 1986. On that day the Respondent failed to appear. His bail was estreated and a warrant for his arrest issued.

2. The trial, of the other, three proceeded The victim gave evidence but made, no identification. Cautioned statements of two of the accused were rejected after a voir dire and against them the Crown offered no further evidence. All three were finally acquitted.

3. On 27th March 1987 the Respondent was rearrested. On plea day he pleaded not guilty and was remanded in custody for trial. In June 1987, His Honour Judge Cameron drew the attention of both the Attorney General and the Legal Aid Department to the delay in bringing this case on for trial and told them he was anxious to have it brought on quickly. He was told that this would be done.

4. By 15th August 1987, the case had still not been listed. Judge Cameron did not know why. He set down the case for hearing on 18th August. When the trial began on that day he was informed that the victim could not he traced and that a police witness was absent on leave. He adjourned the matter to 1st September.

5. On 1st September the victim was still absent. The defence representative indicated to the judge that he required the victim for the purpose of cross-examination. Judge Cameron then adjourned the case until the following day to allow the Crown to make further efforts to secure her attendance,

6. On 2nd September, he was told that the victim was still untraceable and counsel then appearing for the Crown informed him that the Crown intended to proceed and the case would be based on the Respondent's cautioned statement. The defence intended to challenge the admissibility of that statement in a voir dire and desired to cross-examine, in that procedure, the victim as to the descriptions of the robbers which she gave to the police. It was suggested that none of those descriptions matched the Respondent: The judge considered that the victim's evidence would be of importance in reaching a final determination. Then being of the opinion that the Crown could not rely solely on the cautioned statement because of the defence's desire to cross-examine the victim the judge, without going further, "dismissed" the charge and discharged the Respondent.

7. The Crown now appeal by way of Case Stated, under section 84 of the District Court Ordinance, from that decision and the question posed for our consideration as:

"Whether I erred in law in the circumstances an dismissing the charge and discharging the Respondent accordingly".

Section 84 reads, as far as it as material :

"An appeal shall, lie at the suit of the Attorney General to the (court of Appeal against a verdict or order of acquittal, which shall include any order quashing or dismissing a charge for any alleged defect therein or want of jurisdiction."

8. When this matter first came on for hearing, before a differently constituted Division of this Court, counsel then appearing for the Respondent had perceived a preliminary point which he wished to take but which had only occurred to him at a late stage. We asked for and was granted an adjournment.

   Mr Sedgwick with him Mr Cunningham, for tic Respondent in this Court, has taken that point. We indicated to him, having heard argument, that we were not with him and said are would give our reasons later. We then Trent on to hear the Case Stated proper.

9. It was Mr. Sedgwick's Submission on the preliminary point that the Case Staten procedure as inappropriate. He contends that there has been no acquittal and that the Crown should have proceeded by way of Judicial Review in the nature of certiorari air mandamus.

   Mr Sedgwick remands us that it as incumbent upon the stater of a Case to set out the facts and says that here, because of the manner in which the trial judge dealt with the trial, there are no facts. Further, there are no Reasons for Verdict. He relies on In re Harrington⁽¹⁾ for the proposition that there was no verdict or order of acquittal, nor indeed any order dismissing the charge by reason of defect or want of jurisdiction. His contention is that the trial was a nullity and therefore judicial review was the proper course.

   Mr Cross For the Crown says that there was an acquittal. There was no excess of Jurisdiction but simply the wrong exercise of a discretion. He does not deny a discretion in a Judge to protect the interests of an accuse but, in so doing, the Judge must be seen to exercise that discretion judicially. If by a wrongful exercise he terminates the proceedings it is in effect an acquittal for the purposes of the section whether or not the plea of autrefois acquit is available in subsequent proceedings. The proper test is by way of Case Stated.

10. He refered us to Rex v Handsworth Justices⁽²⁾, a conviction by a court of summary jurisdiction, where the Court generally agreed that the proceedings before the justices were a menial of justice to the applicant who has come by way of certiorari.

11. As Viscount Caldecote said at p 283 the only way, in England, that matters could be brought before the court was by way of affidavit. Humphreys J then considered the remaining issue of "other remedy" at p 284:

"The only question which remains is whether there is some other remedy which, in the language in Snort and Mellor's Practice of the Crown Office, is equally convenient', because there is apple authority for saying that this court will not grant writs of certiorari or mandamus where there is some other course equally convenient onen to the applicant for the writ.

12. That Court did not consider that Case Stated was available for the applicant had been convicted before the justices without their hearing any of his evidence, Humphreys J. thought that it would have been "ridiculous" to state a case on the only question of law which arose and he questioned why the applicant should have been obliged to appeal to Quarter Sessions when the only effect of that would have to allow the prosecutor to mend his fences. The Court held that the applicant was fully entitled to come to the Divisional Court by way of certiorari, state: that he had been convicted as a result of a denial of justice and have his conviction set aside - the most convenient method.

13. Harrington⁽¹⁾ was concerned with the dismissal by a Magistrate's Court of an information The Prosecution had applied for judicial review by way of certiorari to quash the decision and mandamus to require the justices to hear evidence. The Divisional Court refuse the applications holding that, although the justices had acted in breach of natural Justice by their failure to hear evidence, the dismissal of the charges amounted to an acquittal and, since the defendant had been in jeopardy, the Divisional Court had no power on an application for judicial review to quash the acquittal and order a new trial.

14. When the case went to the House of Lords it was there held that, allowing the prosecutor's appeal, in determining whether an acquittal was susceptible to judical review the test was not whether there had been a breach of tale rules of natural justice but whether she decision to acquit was a nullity. They further held that, as the justices in dismissing the informations had failed to comply with their duty under the Magistrates' Court Act 1980, they had acted without jurisdiction and therefore their decision was a nullity. Consequentially, the issue of double jeopardy did not arise. The Divisional Court did have poorer to quash the acquittal and to remit the matter to the justices for rehearing.

15. Neither Wandsworth Justices⁽²⁾ nor Harrington⁽¹⁾are applicable in the circumstances here: We have s. 84 which is a statutory provision not available in England. In Harrrington⁽¹⁾ there are anomalies and consideration of an enactment not in force here.

16. It is true that section 84 does use the word "acquittal". In Burgess v Roetefeur and Rrown⁽³⁾ Tindal CJ said:

"In the same way [as conviction which the judge had earlier discussed] the word acquittal is also verbum equivocum, and may in ordinary language be used to express either the verdict of a jury, or the formal judgment of the Court, that the prisoner go thereof without day."

- the last sentence used in Chitty's Criminal Law 1826 at p 258

17. In Griffiths⁽⁴⁾ defendants were committed for trial to the Crown Court. When they appeared for that trial no prosecutor was present in Court. The charges were not put to them, no plea was taken and the trial judge dismissed the indictments for want of prosecution.

18. The prosecution sought leave from other Crown Court judges to prefer voluntary bills identical with the dismissed indictments. Leave was granted and the original indictments quashed.

19. At the subsequent trial the defendants pleaded autre fois acquit to the new indictments and the issue was tried. The defendants lost and were subsequently convicted.

20. They appealed against their convictions on two grounds: first that the decision of the first trial judge was not open to review by other Crown Court judges - other than by way of appeal. The Lord Chief Justice, who delivered the judgment of the Court, did not feel it necessary to no into how such an appeal might come about. He did not have the assistance of the equivalent of our section 84.

21. The second was the way in which an indictment could he disposed of and was the method used by the first judge a proper one. The Lord Chief Justice considered the way of disposing of an indictment and included a stay as one of them. There was he thought, no way in the particular circumstances of, the case, that the trial judge could have ordered verdicts of not guilty. What he did was a nullity ab initio. Therefore the plea of autre fois acquit rightly failed and the defendants were properly tried on the new indictments and the appeals failed.

22. Because of the existence of section 84 the issue of nullity does not need to be considered in Hong Kong and are do not think Griffiths⁽⁴⁾ to be of more than academic interest when proceedings in the District Court are questioned before us.

23. Here, the only issue being whether the Crown should have gone by way of Judicial or by way of Case Stated, in our judgement the order of the District Judge amounted to an acquittal for the purposes of section 84, despite the judge's use of the w lord "dismiss",

24. Judicial Review goes to an evidential point and was the only method open to the applicant in Wandsworth Justices⁽²⁾. Proceeding by way of Case Stated vas by far the most convenient method of bringing the matter before this Court. The trial judge set out the facts, that is the facts being the reasons why he terminated the trial, and this was sufficient to compiy with the Provisions of the section.

   Mr Sedgwick does not seek to contend that at the course taken was a proper one though he does Point out to us that R v Gavanagh and Shaw⁽⁵⁾ upon which the Crown relies, and to which we shall refer in a moment, is not an authority for saying that there is a discretion to dismiss without trial, It is an authority for the granting of a stay.

   Mr Cross submits that while the judge has discretion to terminate the proceedings, nevertheless there were certain steps which he should have taken before exercising that discretion. He argues that by actin as he did, the judge, to use the vernacular, "jumped the gun",

25. Cavanagh Shaw⁽⁵⁾ was concerned with the of a witness at trial. As a result of an incident between   the defendants and three seamen, proceedings were brought to commit the defendants for trial at the Crown Court. It was the Crown's case that one of the seamen had been assaulted and robbed by Shaw; that Cavanagh had participated by assaulting, seizing and keeping the coat of another. The defendants were committed for trial on three counts, two of robbery and the third of wounding a seaman, B, with an intent to cause him grevious bodily barm. All three seamen were named on the beck of the Indictment as witnesses. The trial was adjourned twice as the seamen were in India but on a third occasion two were present. B was absent through illness. The, juege allowed the trial to proceed but, at the end of the prosecution's case, withdrew from the jury the robbery charges and left only the third count, on the basis of unlawful wounding, to the jury. The defendant's defence was that they had been provoked by a homosexual approach made by B. They were convicted.

26. They appealed against conviction oh the ground that the prosecution should have all witnesses on the back of the Indictment in Court. The Court of Anneal held, in dismissing the apnea, that prowled the prosecution had taken all reasonable steps to secure the attendance of witnesses named oh the back of the Indictment the Court had a discretion to permit a trial to proceed if there he no injustice to a defendant and since in the circumstances there it had been to the defendants' advantage that B was not available to give evidence, the judge had rightly exercised his discretion to allots the trial to proceed.

27. "Injustice" can work both ways, a factor a trial judge must bear in mind when considering the exercise of his discretion. Mr Cross accepts that witnesses on the Back of the Indictment, or as here, on the Summary of Facts, ought ordinarily to be available and, in not called for the prosecution, either for, the defence to call them themselves or for them to be produced for cross-examination. He contends that the prosecution has a discretion to determine who are material witnesses and what witness should he called and that that discretion will not be interfered with by the Court unless it is exercised in some manner which amounts to misconduct. For those propositions, he relies on Richardson v R⁽⁶⁾ and Lemay v R.⁽⁷⁾. (See also Oliva⁽⁸⁾ and R. v Woodhead⁽⁹⁾).

   Mr Cross says that here there was evidence capable of sustaining a conviction  - whether the trial judge would have so concluded, having considered that evidence when produced, is entirely another matter. But what the trial jduge should have done, if he thought that there was a possibility that the absence of the victim would prevent a fair trial of the Respondent, was to hold a form of preliminary enquiry. He should have considered the victim's statement, the contents of the cautioned statement which the prosecution wished to adduce and any other evidence relevant to the issue before coming to a decision.

28. He reminded us, as was said in R v Baldry⁽¹⁰⁾:

"That when a confession is well proved it is the best evidence that can be produced: and that unless it be clear that there was either a threat, or a promise to induce it, it ought not to he excluded."

29. At page 679 of Cavanagh and Shaw⁽⁵⁾,Geoffrey Lane, J, (as he then was) having said that the prosecution must take all reasonable steps to secure the attendance of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present, considered R v (woodhead⁽⁹⁾ and that which was said therein by Alderson B. He went on:

"If, however, it proves impossible, despite such steps, to have the witness present, the court may in its discretion permit the trial to proceed provided that no injustice will be done thereby. What considerations will affect the exercise of the court's discretion will vary infinitely from case to case. Would the defence wish to call the witness if the prosecution did not? What are the chances of securing the witness's attendance within a reasonable time. Are the prosecution prepared to proceed in his absence? If so, to what extent would the evidence of the absent Witness have been likely to assist the defendant. If the absent witness can be procured, will other witnesses by then have become unavailable? There will be many other matters which may have to he considered."

30. In our judgment, those are the sort of questions which the trial judge should have asked himself in this case; have considered the matters suggested by Mr Cross and in so doing assisted himself in the exercise of his discretion.

    We fully appreciate the judge's anxiety to bring this matter to trial at the earliest possible moment and the laudable efforts he made to see that this was done. Criminal trials, particularly where the custody of an accused is involved, should be brought to final determination as quickly as possible in order to ensure that justice is not only done but seen to he done. Having said that, we consider the trial judge to have been in error in taking the preemptive course he did and in so doing he failed properly to exercise his discretion. We would answer the question posed to us in the affirmative.

(1) [1984] A.C. 743

(2) [1942] 1 K.B. 281

(3) [1844] 13 Law Joural Magistrate's cases p.122 at p.126

(4) [1981] 72 Crim. App. Reports 307

(5) [1972] 1 W.L.R. 676

(6) [1974] 3 All E.R. 115

(7) C.C.C. Vol. 102 p.1

(8) [1965] 1 W.L.R. 1028

(9) (1847) 2 C. & K. 520

(10) (1852) 2 Den 568 at 574