THE QUEEN v. NG YUK YING

Headnote

S.19(2) of the Magistrates Ordinance, Cap 227 Right of a defendant to make closing speech – Right not accorded – Appeal allowed and conviction quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 625 OF' 1987

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JUDGNENT

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1. The appellant was found guilty of careless driving by a magistrate after trial and she was fined $500. She now appeals against the conviction.

2. The facts were that in the morning of 31st January, 1987 Dr. Lo Chung Man was driving a motor car along Garden Road and when he was near the American Consulate he stopped before the traffic lights which were indicating red at the time. It was not disputed that the traffic condition was not heavy, the weather fine and the road surface dry. Suddenly he heard noise of a bang from the back and his car was pushed forward about two cars’ length into a yellow box. He alighted and found that it was the car behind driven by the appellant that caused the accident. Both cars were damaged. On being asked why she bumped into the back of his car, the appellant replied that her children were disturbing her.

3. The appellant gave evidence and said that before the accident occurred she was in the third lane counting from her left and she was driving at about 20 miles per hour. It Has Dr. Lo's car that suddenly cut into her lane when the distance between the two cars was only about one car's length. Both drivers had to brake abruptly and as a result a collision took place. Towards the end of her cross-examination, the court prosecutor put the following questions to her and received these answers;

Q:  Put it to you that you were careless not to look at the set of traffic lights just before you reached the set of traffic lights?

A:  Yes, I did not notice the lights, I just noticed the rear of that car.

Q:  Put it to you that you did not keep sufficient braking distance between your car and PW1's car?

A:  Yes.

There was no re-examination although the appellant was represented by Mr. Smout, a solicitor. The learned magistrate took the last two answers to be a direct admission of guilt and without hearing final addresses from both the court prosecutor and defence solicitor immediately pronounced his verdict of finding the appellant guilty.

4. In paragraph 5 of the statement of findings, the learned magistrate said this:

“There is a very peculiar feature in the defendant's case and that is, having admitted the offence in the witness-box by the defendant, I enquired whether there was any re-examination. To my mind the defendant's admission ought to be clarified in re-examination but I was totally taken by surprise when there was no re-examination. So I pronounced judgment without any submissions because it would only be embarrassing for any final submissions on the case to be made.”

5. The sole ground of appeal argued by Mr. Smout on behalf of the appellant was that the appellant had been denied of her right to make a closing speech under section 19(2) of the Magistrates Ordinance, Cap. 227 and as a result justice has not manifestly be seen to be done. This subsection provides:

“The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.”

6. There is common ground between Mr. Smout and Mr. McCoy, Counsel for the Crown, on what the law is. They are both in agreement that by virtue of the unreported decision of the Court of Appeal (Li, V.P., Yang & Barker, JJ.A.) in The Queen v AU YEUNG Tat-shing & Another, Criminal Appeal No. 19 of 1985, section 19(2) of the Magistrates Ordinance does confer a statutory right on a defendant to make a closing speech and both of them submitted that this decision is binding on all the courts in Hong Kong. This specific point was referred to the Court of Appeal in pursuance to Section 118(1)(d) of the Magistrates Ordinance by a High Court Judge arising out of an appeal against the decision of a magistrate. At page 2 of the unreported judgment, Barker J.A. said this:

“It seems to us that section 19(1) and (2) make a clear distinction between “evidence on oath” and what each party has to say (the emphasis is ours). Section 19(2) our view gives each party the right to make a closing speech, and in no way limits this right to cases where a defendant is represented or, if unrepresented, himself gives evidence and calls witnesses as to the fact.”

7. Section 19(2) has a rather chequered history with fluctuating fortunes in our courts. Back in 1959 there was the decision in The Queen v WONG Sang [1959] HKLR 417 in which it was held that the section did not give a specific right to the defence to address a magistrate at the close of the evidence in the case. At page 420, Scholes J. said:

“I think that there is no specific statutory right of the defence to address the Court at that particular stage in those sections. There is however a practice which has long been inexistence in Hong Kong that the defence are permitted to address the Court at the close of the evidence if they wish to do so, and in my opinion that practice should be allowed to continue, and I consider it advisable that magistrates at the close of the evidence should call upon or rather should give an opportunity to defence counsel or solicitors to address the Court at the close of the evidence if they wish to do so.”

8. This decision was followed by Creedon J. in 1966 in The Queen v LO Kee [1966] HKLR 601 and the learned judge had this to say at page 611:

“That section (s.19) confers no “right” of address on an accused person. If the magistrate goes beyond that and permits an accused person or his counsel or solicitor to address him at the conclusion of the evidence he is doing so, not out of his fulfilling a duty where a "right” is being exercised but rather out of courtesy or because it is part of the ordinary “cursus curiae” of the Particular magistrate himself.”

9. These two decisions remained to be the law for 17 years until the judgment of Roberts C.J. in The Queen v SIU Yeung-lung, Criminal Appeal No. 444 of 1983. This was what the learned Chief Justice said:

“However, a failure to inform an unrepresented defendant that he has the right to make a final speech before conviction, or a speech in mitigation after conviction and before sentence, is a serious omission.

I appreciate that it is difficult for a busy magistrate to record everything which occurs during a trial, but I think it is important that he should record that an accused person has been given the opportunity to address the court before conviction and in mitigation after conviction.

Without reaching any conclusion as to the other merits of the appeal, I shall therefore quash the conviction and order a retrial before another magistrate.”

10. This decision was followed by Barnes J. at the beginning of this year in a reserved judgment in The Queen v LEE Chi-wai, Magistracy Criminal Appeal No. 1199 of 1986. Bewley J. took the same view in The Queen v MAN Cham-boo in Magistracy Criminal Appeal No. 851 of 1986.

11. In a judgment delivered on 11th November, 1986 in The Queen v HO Sui-keung [1987] HKLR 389, Roberts C.J. reviewed the decisions in The Queen v WONG Sang, The Queen v LO Kee and The Queen v SIU Yeung-lung and declined to follow his early decision holding at page 391 that:

“SIU must be regarded as having been decided per incuriam. Even if I took a different view as to the desirability of a speech being accorded to the defence in all circumstances, I am obliged to follow these two decisions which rule that there is no such right. If there is no such right there can consequently be no infringement of it and, therefore, the absence of any opportunity afforded to defence counsel to address the court cannot be a ground for upsetting a conviction.”

12. Mr. McCoy submitted that the decision of the learned Chief Justice in The Queen v SIU Yeung-lung Has correct while his decision in The Queen v HO Siu-keung was decided per incuriam of the unreported decision of the Court of Appeal in The Queen v AU Yeung Tat-shing which must be taken to have overruled the decisions in The Queen v WONG Sang and The Queen v LO Kee. It was further submitted that the decision in HO was also inconsistent with the judgments of Bewley J. in The Queen v MAN Cham-boo and Barnes J. in The Queen v LEE Chi-wai.

13. In view of the powerful submissions and having regard to all the decisions cited in argument, I feel that I must accept that I am bound by the decision of the Court of Appeal in The Queen v AU YEUNG Tat-shing and to hold that section 19(2) gives a defendant the right to make a closing speech and this right is not limited to cases where a defendant is represented or, if unrepresented, himself gives evidence and calls witnesses as to the fact.

14. Mr. McCoy sought to support the conviction on two grounds: firstly the appellant admitted the offence under cross-examination and secondly solicitor who appeared for the appellant at the trial took no objection and therefore he acquiesced in what had taken place. He relied on some passages in the three decisions which decided that a defendant had no statutory right to make a closing speech: The Queen v WONG Sang, The Queen v LO Kee and The Queen v HO Siu-keung. I need only repeat what Roberts C.J. said in HO Siu-keung:

“If there is no such right there can consequently be no infringement of it and, therefore, the absence of any opportunity afforded to defence counsel to address the court cannot be a ground for upsetting a conviciton.”

15. In the present appeal, I have held that the appellant had a right to make a closing speech but she was not accorded that right and therefore there was an infringement of it and it follows that this can be a ground for upsetting the conviction. It would be pertinent to refer to the observations of Huggins J.A. (as he then was) in LAI Chuk-ting and Others v The Queen, [1978] HKLR 402 at page 403:

“Now there are, of course, two conflicting principles here. We should not too readily assume that a judge, and particularly a judge of this experience, would make up his mind finally before hearing the address of a defendant's counsel. However, with some reluctance, we have come to the conclusion that the other principle outweights that, and that principle is that justice must manifestly be seen to be done."

16. I respectfully agree. I have no doubt that justice is done in this case but this is not good enough under our system for justice must not only be done but must manifestly be seen to have been done. This is a comparatively minor matter and it would not justify a retrial. In the result, I would allow the appeal, quash the conviction and order that the fine, if already paid, be refunded.

17. Finally I would like to express my indebtedness to both Mr. McCoy and Mr. Smout for their thorough and diligent research into the Law and the lucid and helpful way in which they presented their arguments.