THE QUEEN v. CHAN CHUN KIT

Criminal practice and procedure - observations on the extent so which it is proper for a magistrate to assist an unrepresented defendant in the conduct of his defence

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 40 OF 1991

Reasons for judgment handed down: 27 February 1991

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JUDGMENT

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Fuad, V.-P.:

1. On 22nd February 1991 I allowed the appeal of the appellant Chan Chun Kit, quashed his conviction and set aside the sentence and now give my reasons.

2. The appellant was convicted by Mr. J.E. Acton-Bond in the Magistrates Court on 31st October 1990 of inflicting grievous bodily harm contrary to s.19 of the Offences against the Person ordinance and sentenced to 9 months' imprisonment to commence at the expiry of the other sentences of imprisonment he was then serving. He appealed against his conviction.

3. The victim of the assault was Tang Chiu Wing (PW1), a hawker, who testified that on 19th July 1990 at about 2:50 p.m. in Upper Lascar Row, Central, two men suddenly assaulted him with water pipes. His friend, Lee Tim Cheung (PW2) was present. He was hit on his left forearm and the doctor who examined him later in hospital found that he had sustained a crack fracture of the ulnar bone (which is the inner forearm bone). He said he saw his two assailants in the street two weeks later. He explained that he was struggling with one of the men when the other man struck him with the water pipe. He did not know either of his assailants. When he was asked by the appellant in cross-examination: "Could you identify me at the time of_. Arrest?" He replied: "It was not you."

4. When Lee Tim Cheung (PW2) gave evidence, he said that he heard someone say: "what, you are trying to rob me." When he turned to look, he saw the victim struggling with one man whilst another stood in front of him holding a water pipe. When he shouted out, the man with the water pipe ran off. He gave chase and caught that man. There was a police van parked in Belcher's Street where he caught up with the man he had been chasing. He handed him over to the police and reported what he had seen. He identified the defendant in the dock. He agreed that his "vision of the struggle or fight was for a very short period of time". He also said that he had not seen the actual blow struck. He agreed, too, that he would not have been able to see if others had been involved because immediately he had got the measure of the situation he had begun the chase. He said that he had had a good opportunity of observing the defendant when he had caught him by the chest.

5. PC47293 (PW4) gave evidence of the arrest of the appellant at the scene, after he had seen him running while being chased and later caught by PW2. He said that the victim had pointed to the appellant and accused him of hitting him with a water pipe with two other men. The victim, on the other hand, testified that he had not done this because he had not been able to see who his assailant had been.

6. The appellant, who was unrepresented, elected not to give evidence or to call witnesses.

7. In the statement of reasons for his decision, the learned magistrate summarised the evidence and then said:

"        In those circumstances I was faced with a conflict between 2 prosecution witnesses - PW1 and PW2.

        It was clear from all the evidence that the man holding the waterpipe was the man that struck the blow which damaged PW1's arm. If that man was D, he was guilty.

        PW1 was a drug addict and attending Hei Ling Chau D.A.T.C. The evidence of PW4, the police officer who sorted out things, was that when PW1 came across all of them including D he identified D as his assailant. This was not admissible as evidence of the truth of that statement but admissible that such a statement was made by PW1. It was inconsistent with PW1's evidence significantly. I disbelieved PW1 when he said PW1 was not his assailant although I was prepared to believe his account of the assault.

        D did not explain his running from the scene in a way that was remotely credible. I did not believe his evidence.

        PW2 on the other hand struck me as a man with no axe to grind who was giving an honest account of what he had seen and done in a situation in which he acted entirely creditably.

        I directed myself that I could not convict D unless I was convinced of his quilt beyond reasonable doubt.

        I found that he struck the blow with the waterpipe which broke PW1's arm. It was clearly an intentional blow and foreseeable that a broken bone could result. There was no question of self-defence. The broken bone was grievous bodily harm although PW1 did hot seem too bothered at the time.

        In those circumstances I had no alternative but to convict D of the offence alleged against him." (Empnasis added)

8. With great respect to the magistrate, who obviously tried the case with great care, he did not sufficiently indicate that he had in mind the considerable difficulties in this case. Of course, a witness may have a better view of an incident than the victim of an assault about which he testifies, nevertheless, a court should be very cautious of convicting in circumstances where the victim categorically says that the person accused is not the man who assaulted him. This is particularly so where the only other witness acknowledges that he did not see the blow which was struck. It was not simply a question of a conflict of evidence between two prosecution witnesses. What the learned magistrate did not demonstrate was that he had considered the possibility, in the light of what the victim had sworn and the confusing situation, that PW2 might honestly have been mistaken. The fact that it might have been proved perfectly adequately that the appellant ran away holding a water pipe would not of itself resolve all the difficulties in the case. It was for these reasons that I felt that the conviction was unsafe and unsatisfactory and Mr. Lugar-Mawson appearing for the Crown conceded that this must be so.

9. Before I take leave of this appeal I think I should make a few observations about the procedure adopted by the magistrate. After the victim had given evidence-in-chief, the magistrate asked him a few questions and then what happened is explained in the statement of reasons. The magistrate wrote:

"         When PW1 gave his evidence-in-chief he never identified D. I was concerned less D, who was unrepresented, ask a question that elicited an answer that he, D, was the assailant. I thought it fairer to hear what PW2 said first - because if there was going to be no evidence of identity from any of the PWS in chief - I did hot want an inexperienced cross-examiner to elicit it. I therefore interposed PW2 and, as it happened, PW3 - the doctor."

10. In my judgment, the magistrate would have been wiser to follow the normal procedure; there was ho cause to postpone the victim's cross-examination for the reasons given.

11. Then PW2 gave evidence and the court asked him a few questions. What happened next is also explained by the magistrate in his "reasons". He said this:

"         In addition, as D chose to give a narrative when asked after explanation to cross-examine - I asked questions on his behalf on the basis of his narrative and in the hope that it might be of some advantage-to him."

12. The record contains a note of a statement made by the defendant which in effect tells his version of events in great detail. The magistrate used this narrative to formulate the questions he asked in cross-examination of the witness, as he put it, "on behalf of the defendant." The questions and answers run to some 5 pages of transcript.

13. The extent to which it is proper for a magistrate to help an unrepresented defendant is difficult to formulate; one has to start with the proposition that it is a matter for his discretion as to how he conducts a trial in the overall interests of justice. There are a number of authorities which deal with the duty of a magistrate to make sure , for example, that the defendant knows of his right to cross-examine, that he is aware of his rights at the conclusion of the prosecution case and, where the law provides for presumptions that will be applied unless they are rebutted on the balance of probabilities, what this involves so that the defendant is not prejudiced by his lack of knowledge of the law. But none of these cases give guidance on the matter which is before me. Obviously, if it turns out that an unrepresented defendant is quite unable effectively to cross-examine witnesses for the prosecution he will need some assistance from the court and the court will have to enquire what his case is to be able to give him appropriate help. However, wherever the line is drawn, the duty of the magistrate does not extend to taking over and conducting the defendant's case for him. With great respect to the magistrate, this is what he did here as can be seen when one looks through the notes he so carefully recorded.

14. I think I can do ho better than to set out what Sir Alison Russell had to say (at pp.64-65) in the Second Edition of his work "The Magistrate" which has been a source of wise counsel to lay and professional magistrates ever since it first appeared:.

                 "Question put to withess oh behalf of accused.

       The following matter arises when the accused is an uneducated person and is undefended by an advocate: it makes demands on the utmost skill and patience of the magistrate -

15. With regard to paragraph (9) of Sir Alison Russell's suggestions, the fact that the magistrate here recorded what the defendant's version was, and made it part of the record on pp.10 and 11, may have led to the unfortunate mistake he made when he prepared his statement of reasons in the passage I have cited which is emphasised (by saying that he did not believe evidence which had never been given). The magistrate noticed, and later (by an amendment) corrected his mistake.

16. I do not wish anything that I have said to discourage magistrates from assisting an unrepresented accused person in the way they think proper depending on all the circumstances of the case. My purpose in addressing this matter is to suggest that the magistrate went too far in this particular case. He descended into the arena to such an extent that his role as a judge became blurred if not obscured by the role he adopted of an advocate. I need hardly say that I fully appreciate that the magistrate was doing his best, as he saw it, to be true to his judicial oath.