R. v. NG MING

MA No. 1001 of 1993

HEADNOTE

Criminal Law and Procedure - Magistrates - verdict - "convicted subject to Bill of Rights Ordinance Arguments" - Bill of Rights Ordinance Art. 11(2)(e) - defence witnesses deported by Crown - observations on requirement by Director of Immigration for production of witness summons when unauthorised entrant applies for permission to remain for purpose of giving evidence for defence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1001 of 1993

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J U D G M E N T

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1. The appellant was convicted by a magistrate after a trial on the following charges :-

(A) Possession of an offensive weapon contrary to Section 33 of the Public Order Ordinance, Cap. 245

and

(B) Resisting Police Officers in the execution of their duty, contrary to Section 63 of the Police Force Ordinance, Cap. 232.

2. In allowing the appellant's appeal against conviction, I said that I would give my reasons later, which I now do.

3. When he appeared before the magistrate, the appellant pleaded guilty to the offence of remaining in Hong Kong without authority, contrary to Section 38(1)(b) of the Immigration Ordinance, Cap. 115.

4. The history of the case is as follows.

5. On the 30th September 1993, police officers arrested 3 male illegal immigrants, including the appellant. It was the prosecution's case that when the appellant saw the police officers, he and his companions moved off. That evidently aroused the suspicion of the police who pursued them. PC 51099 (PW1) and PC 47049 (PW2) intercepted the appellant and, after a struggle, searched him - finding a knife in his waistband, concealed by his T-shirt. The knife was in a sheath. PW1 told the appellant that he was arresting him for possessing an offensive weapon, whereupon the appellant, who had continued to resist, pushed PW1 away and ran off. He was caught after moving 5 or 6 feet, subdued and arrested for resisting arrest as well as possessing an offensive weapon.

6. The other two illegal immigrants, who were also caught, were each charged with resisting a police officer and remaining in Hong Kong without authority.

7. All three men came before a magistrate on the 4th of October 1993. At that time, charge A against the appellant alleged an offence of possessing an offensive weapon contrary to Section 17 of the Summary Offences Ordinance. All three were remanded in custody until the 19th October, when the prosecution withdrew the charges against the other two defendants. Charge (A) was amended to allege the Section 33 offence.

8. After the appellant's pleas had been taken, the duty lawyer informed the magistrate that the two other men wished to give evidence on behalf of the appellant. He applied for a speedy trial and for the detention of the two men who had said that they wished to be witnesses for the appellant. Having heard that, the magistrate appointed the 4th November 1993, some 16 days later, for the hearing and he wrote this in his minute of the proceedings :-

"I note that D2 and D3 whose cases have been dropped may be required to give evidence for the defence."

It is not surprising that he made no order for the detention of the potential witnesses for he had no power so to do.

9. Three days later, on the 22nd October 1993, the duty lawyer came before the same magistrate, whom he informed that the appellant was in Lai Chi Kok Reception Centre, desired to call D2 and D3 to give evidence and wanted a letter from the magistrate to the effect that they must not be repatriated. Not surprisingly, the magistrate pointed out that that was not the court's business. He said that the availability of D2 and D3 was a matter for the Duty Lawyer Scheme and for the Immigration Department.

10. In order to complete the story, I turn from the magistrate's record to the unchallenged affidavit evidence of Mr. Joseph Ho, Assistant Chief Court Liaison Officer of the Eastern Court Liaison Office of the Duty Lawyer Service, who acted as "instructing solicitor" for the appellant. On the afternoon of the 22nd October, he went to see D2 and D3 at Wan Chai Police Station, and he took statements from them. They are very short and in identical terms. Each statement reads :-

"I ... saw Ng Ming had not push (sic) the police and ran (sic) away, also I did not see how the police conduced (sic) a body search on Ng Ming and the discovery of the knife."

11. Mr. Ho formed the view that they were material witnesses. He had a handwritten note written by the duty lawyer who had appeared before the magistrate on the 19th October. It said that D2 and D3 had agreed to be further detained to be witnesses for the appellant as long as there was a speedy trial, that a speedy trial date had been granted, but that the magistrate, refusing to make a body order against D2 and D3, had suggested that witness summonses be served upon them. The duty lawyer suggested that Mr. Ho contact Miss Crabtree in the Attorney General's Chambers asking for the Attorney General to apply for the further detention of D2 and D3 under Section 32(4) of the Immigration Ordinance, Cap. 115.

12. Mr. Ho wrote on the 20th October 1993 to the Superintendent of the Victoria Immigration Centre saying that D2 and D3 would like to be detained for the sake of giving evidence at the trial. He invited the Superintendent to make arrangements for their detention under Section 32(4) of the Immigration Ordinance, Cap. 115. Mr. Ho sent the letter on the afternoon of the 21st October to Wan Chai Police Station on the understanding that the Police would deliver it to the Victoria Immigration Centre when D2 and D3 were taken there for detention.

13. On the following morning, the 22nd of October, Mr. Ho was told by Miss Crabtree of the Attorney General's Chambers, that Section 32(4) of the Immigration Ordinance did not apply to defence witnesses. Then he was told by an officer of the Victoria Immigration Centre that a memorandum from the court was required for the detention of D2 and D3. That explained why the duty lawyer on that day made the unsuccessful application to the magistrate for a letter from the court.

14. Mr. Ho wasted no time. On that very day, letters from D2 and D3 asking for permission under Section 13 of the Immigration Ordinance to remain in Hong Kong for the purpose of giving evidence at the trial (then only 12 days away) were delivered to the Director of Immigration.

15. There can be no doubt that by then the Attorney General's Chambers and the Immigration Department well knew that the appellant wanted to call D2 and D3 at his trial, and that D2 and D3 had indicated their willingness to remain in Hong Kong in order to testify.

16. According to Mr. Ho, D2 and D3 were transferred to a holding centre and repatriated to the People's Republic of China before the trial. The defence did not know that, however, until the 4th of November when the duty lawyer said in court that he needed to know where they were. It was only after the case had been stood down twice for enquiries to be made that the court prosecutor was able to tell the magistrate that it had with difficulty been ascertained that D2 and D3 had been moved to San Uk Ling Detention Centre, and he suspected that they had been deported. Evidently, it had not been possible to discover where they were. This court has been informed by Mr. Bailey, Senior Assistant Crown Prosecutor, appearing for the respondent that they were repatriated on the 24th of October 1993.

17. After hearing the duty lawyer's account of the efforts Mr. Ho had made (but there being no mention of the two letters written by D2 and D3 to the Director of Immigration), the magistrate said "cannot see any reason why one can say an abuse of process."

18. The duty lawyer said "I agree".

19. The trial then proceeded. At the close of the Crown's case, when there was evidence that D2 and D3 had been with the appellant at the material time, the magistrate said, according to his note :-

"Bill of Rights - Article 11(2)(e). May be a point here for him. Will have to rule a case to answer."

20. The duty lawyer and the magistrate then had a discussion and the magistrate indicated that the case could go on, there being nothing to prevent the appellant from arguing later that the proceedings were fundamentally flawed.

21. The appellant gave evidence to the effect that he had been framed. The duty lawyer told the magistrate that other witnesses "were not available as repatriated". He made a closing submission on the facts and the magistrate said, without inviting submissions on the Bill of Rights Ordinance point :-

"Convicted on charges (A) and (B) subject to Bill of Rights Ordinance arguments."

22. The magistrate then asked whether the duty lawyer had instructions to make submissions.

23. Having himself raised the Bill of Rights question at the outset, the magistrate should have invited submissions on that question before hearing any evidence. Had he decided to stay the proceedings, there would have been no trial and no conviction. Had he decided otherwise, he would have been free to proceed to conviction. What he in fact did was to purport to enter a provisional conviction on each charge. For that reason alone, the appeal was bound to succeed. It is not possible to convict a person subject to further argument. All relevant issues must be decided before verdict.

24. At that stage, the appellant knew that the magistrate had disbelieved him. It is hardly surprising that the appellant then instructed the duty lawyer that he did not wish to pursue the Bill of Rights argument before the magistrate.

25. The hearing then proceeded to mitigation and sentence.

26. It must be said that after reflection, the magistrate said in his Statement of Findings :-

"Although I was certain on the evidence before me of the appellant's guilt, I remain uneasy about the fairness of the trial process for him."

27. The first ground of appeal was that the convictions were unsafe and unsatisfactory, the trial having been conducted in breach of the rights given to the appellant by Section 8 and Article 11(2)(e) of the Hong Kong Bill of Rights Ordinance, Cap. 383.

28. Article 11(2) reads, so far as is material in the present case, as follows :-

"(2) In the determination of any criminal charges against him, everyone shall be entitled to the following minimum guarantees, in full equality ...

(e) To obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."

29. The basis of the first ground of appeal was of course the removal from Hong Kong by the Crown of two persons whom, to the Crown's knowledge, the appellant wished to call as witnesses for the defence and who were willing to remain in order to testify.

30. Mr. Bailey submitted that it was not open to the appellant to take that point since the appellant, according to him, had abandoned it at the trial. In fact, the record shows that the appellant only expressly declined to argue the Bill of Rights point at the time when he had already been convicted and the trial of the issue of guilt or innocence was over. He was declining, in effect, to apply to the magistrate to review his decision. He was perfectly entitled to take that line. A convicted person has a right of appeal from a magistrate's decision whether or not he first applies for a review.

31. It is true that the appellant did not seek a stay of proceedings during the trial, but the duty lawyer had suggested to the trial magistrate that he should adjourn after the defendant's evidence for the Bill of Rights question to be considered. The magistrate's reply, according to the record, was :-

"In view of the fact that no possibility of getting 2 DWs here. Wouldn't it be best to reserve your position on Bill of Rights argument and go on with available evidence. Still nothing stopping you arguing that process fundamentally flawed."

He did not say when that point might be argued.

32. I decided that the appellant was entitled to argue his first ground and that Mr. Ho's affidavit should be before the court. Its contents were not disputed.

33. Mr. Bailey then submitted that the Crown had had no power to detain the witnesses for the purpose of giving evidence for the defence. He referred to the decision in Attorney General v. Pham Si Dung, MP No. 201 of 1993 which was to the effect that Section 32 of the Immigration Ordinance only entitles the Attorney General to apply for the detention of a person against whom a removal order is in force, for the purpose of giving evidence for the prosecution. Mr. Bailey also relied upon the decision of Godfrey J. in Liew Kar-Seng [1989] 1 HKLR 607 in which the judge held that the detention of a person "pending" his removal pursuant to a deportation order could not be justified after the expiration of what was, in all the circumstance of the case, a reasonable time in which to execute the order. He also cited R.v. Governor of Richmond Remand Centre ex parte Asghar & Another [1971] 1 WLR 129 as authority for the proposition that a person detained pending a trial was not detained "pending removal". It was argued by Mr. Bailey that in view of the authorities the Crown had had no power further to detain D2 and D3.

34. Those cases all contemplate the situation where a person is detained against his will. The present case is concerned with people who were perfectly willing to remain in Hong Kong in order to give evidence for the defence if only the Director of Immigration would delay their deportation. The magistrate had fixed an early hearing date and the Immigration Department had been apprised of the situation. D2 and D3 had applied in writing for permission under Section 13 of the Immigration Ordinance to remain in Hong Kong.

35. Following an adjournment of the appeal hearing, Mr. Bailey changed his ground. Having received further instructions, he was able to say that though it had not been the practice of the Director of Immigration to do so, he does have power under Section 13 of the Immigration Ordinance to allow unauthorized entrants to remain temporarily in Hong Kong. The Director can take a recognisance under Section 36 of the Immigration Ordinance, but will not do so where the unauthorized entrant has no firm link with Hong Kong, such as a fixed abode. Where he is not willing to take a recognisance, he seeks the agreement of the unauthorized entrant to remain in Hong Kong in custody. If the unauthorized entrant agrees, there is no problem because there is no question of the person being held against his will. It is clear that it was open to the Director of Immigration in the present case to permit the unauthorized entrants to stay, but their application was apparently ignored.

36. Mr. Bailey indicated that some formal notification would be required from the defence before the Director of Immigration would consider negotiating terms upon which an unauthorized entrant could be permitted to remain for the purpose of giving evidence for the defence. He said that it would be necessary for the defence to produce witness summonses in relation to the unauthorized entrants. I can see no justification whatever for such a requirement. A witness summons does not affect the Director of Immigration's powers in any way. A solicitor is an officer of the Supreme Court. All he has to do to obtain a witness summons is to tell a magistrate that the unauthorized entrant is likely to give material evidence on behalf of the defendant and the summons will normally be forthcoming. The production of a witness summons in practical terms adds nothing to a letter sent by a solicitor of the Supreme Court to the Director of Immigration stating that he desires to call an unauthorized entrant as a defence witness.

37. If the Director of Immigration has a policy that he will not accept the word of a solicitor of the Supreme Court that an unauthorized entrant is required as a defence witness and if, in pursuance of that policy, he deports that unauthorized entrant before the trial, the prosecution may well find that the trial court will stay the proceedings on the ground that the Crown has denied the defendant his right under Article 8 to obtain the attendance of his witnesses. Though it is not necessary for me to make a finding on the point, there is prima facie evidence of a denial of the appellant's rights under Article 8 in the present case and if the magistrate had dealt with that issue at the appropriate time, there may not have been a trial.

38. The second ground of appeal was that the Duty Lawyer Scheme had been guilty of gross negligence in not applying for witness summonses. The issue of witness summonses would not have made a jot of difference to the powers of the Director of Immigration, and there is no reason whatever to suppose that, in the absence of witness summonses, D2 and D3 would have failed to turn up to give evidence if the Director of Immigration had let them stay in Hong Kong for that purpose. The failure to obtain witness summonses was not gross negligence. No indication had been given to the Duty Lawyer Scheme by the Director of Immigration that he required the production of witness summonses and in any event the s.13 applications should have been considered on their merits.

39. The appeal against the two convictions having been allowed on the basis that the magistrate had brought in provisional verdicts, the appellant appealed, with leave, against the sentence of 15 months' imprisonment imposed upon him in relation to charge (E). It was common ground that he would not have been charged with that offence if he had not been charged with charges (A) & (B). He had been in custody for over 7 months when his appeal against sentence was heard. In the circumstances, the appeal was allowed and his immediate discharge was ordered.