THE QUEEN v. CHAN TAI WAI

HEADNOTE

                 Failure of magistrate to state his findings of facts and other grounds of his decision - s.116(1) Cap. 227 not complied with - defendant not giving evidence at his trial - confession admitted after examination on voir-dire - appeal court quashing conviction - trial de novo under s.118(1)(f) ordered - not for appellate court to divine reasons why appellant convicted.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 562 OF 1985

__________

JUDGMENT

__________

1. The facts of this case are sufficient to disturb anyone's faith in the Preventive Service. The appellant and his colleague, both of whom were then serving as Customs Officers searched a Chinese fishing vessel in Hong Kong waters and finding a quantity of Hong Kong currency illegally hidden on board appropriated some of the money for their own purposes.

2. The appellant was convicted of theft and was fined $2,000 and ordered to pay $10,900 as compensation to be shared between two of the victims.

3. He has appealed against conviction and the problem confronting this court is that there is no Statement of Findings. The magistrate did not at the time of convicting the appellant state her reasons for finding him guilty nor has she ever set out any of her findings of fact. She left Hong Kong a few days after convicting the appellant and has persistently declined to give her reasons.

4. At the hearing of the trial three of the fishermen on the vessel gave evidence that the appellant intimidated them by saying everyone knew it was an offence to take foreign currency out of China and that so far as he was concerned if they did not acquiesce in letting him have some of the money he would throw all there was into the sea. In these circumstances they suffered him to take some of the money. In addition the Crown put in evidence a confession made by the appellant to an officer attached to the I.C.A.C. The admissibility of that statement was challenged but it was ruled admissible by the magistrate after an examination on the voir dire.

5. In seeking to uphold the conviction the Crown contends that notwithstanding the omission by the magistrate to record her reasons the only conclusion that can be drawn from a perusal of the record is that the magistrate must have believed the testimony of the 3 fishermen and must have accepted the confession as true.

6. Mr. Taffs who appears on behalf of the Crown has referred this Court to the case of Chau Sau-leung v. R. (Crim. App.339/79).

7. In that case the magistrate gave no reason for convicting the appellant and failed to provide a statement of findings. The appellant had been convicted of careless driving and had given evidence in his own defence. Yang, J. (as he then was) commented that it was a case of one man's word against another's and insofar as there was no statement of findings the conviction was unsafe. He therefore quashed the conviction.

In the course of his judgment he said :-

 

"In a recent magisterial appeal which came before me, the usual Statement of Findings was also lacking, but the trial magistrate did give reasons for his verdict which were recorded in his notes of proceedings. As the reasons were perfectly adequate, his appeal against conviction was dismissed.

 

Following my own decision in two appeals which came before me last month, similar to the present one and also decided by the same magistrate, I hold that in the light of the evidence and in the absence of any reasons for verdict, the conviction is unsafe. I accordingly allow the appeal and quash the conviction. "

8. Mr. Raffs argues from Chau's case that where the evidence in support of a conviction is clear then the conviction should be upheld even though no reasons are given.

9. In Leung Shun v. Reg. [1961] HKLR 406 Blair-Kerr, J. had before him a case where the magistrate had, at the time of convicting the defendant, given his reasons for doing so by stating he "believed PW1 & PW2 and disbelieved the defendant's evidence" but at the time of preparing his Statement of Findings recorded no more than that he had already given his brief reasons for convicting the defendant and there was nothing he could usefully add.

10. The magistrate's conviction was upheld. In the course of his judgment Blair-Kerr, J. said :-

".....but it is the findings of fact and grounds of decision, as disclosed in the document envisaged by Section 112(b), which influence the parties in their preparation for, and prosecution of, the appeal, and which this Court regards with the utmost respect when determining the appeal. Ho Court of Appeal can perform its functions properly unless it knows precisely what facts the Court of trial has found, and any other grounds of decision, all of which should be stated in plain language capable of being understood by every appellant. "

11. In Hong Kong appeals from magistrates courts are not by way of re-hearing but are based on the Court record. The appellate Court as well as the appellant needs to know why he was convicted and what facts were found proved. It is not for an appellate Court to divine on what evidence the accused was or may have been convicted but to determine whether the precise reasons given by the magistrate for finding the defendant guilty are sustainable.

12. In my opinion this conviction must be quashed by virtue of the failure of the magistrate to provide a statement of her findings on the facts and other grounds of her decision as she is required to do by Section 116(1) of Cap. 227.

13. Mr. Taffs, anticipating that this court might quash the conviction, has asked the court to make an order under s.118(1)(f) of Cap. 227 that the case be heard de novo. Good cause for such an order being made has been shown. The offence is a serious one. If the complaint is true it is in the public interest that such shameful conduct be exposed and the offender be barred from continuing his duties in the Preventive Service. Also it would be alarming if the appellant were to be reinstated in his post simply because a magistrate has failed to do her job properly.

14. Thus, this appeal is allowed; the conviction and sentence is quashed. The order for compensation is set aside. The money is to be returned to the appellant. The appellant is re tried de novo.