R. v. LAM YIH JIUN MICHAEL

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 791 OF 1995

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J U D G M E N T

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1. This is an appeal by Mr Lam Yih Jiun, Michael against the determination of a Magistrate who held that at the trial of one Mr Yeung Sau Shing, Albert in the Western Magistracy, Mr Lam, having attended court pursuant to a witness summons and having affirmed, refused to answer questions put to him without just excuse. Pursuant to s.21(4) of the Magistrates Ordinance, Cap.227, the Magistrate ordered him to be imprisoned for six weeks.

Events leading to determination

(1) events at the criminal trial

2. Mr Albert Yeung was charged with criminal intimidation and false imprisonment. He stood trial before the Magistrate on 22nd May 1995. The Appellant was the alleged victim of the two offences alleged to have taken place on 9th and 10th December 1994. He was summoned to appear as a witness. On 22nd May 1995, he attended before the Magistrate and affirmed in the witness box. Counsel for the prosecution then started the examination-in-chief.

3. After Mr Lam had given formal evidence as to his background and employment, he was asked about what happened in early December 1994. He answered that he was very frightened and could not recall. Further questioning by the counsel was met with similar answers. The court then warned him of the consequences of failing to give evidence. After that warning, his response was that he did not want to say what happened. There was a break for the prosecution to consider its position. Counsel for the prosecution was permitted to speak to him to try and satisfy him that there was nothing to fear. Counsel was also asked to be present if and when the police were involved in the discussion with the Appellant. The proceedings were then adjourned to the afternoon.

4. It seems that the Appellant had been shown his witness statements and had the opportunity of reading them during the adjournment. However, when Counsel for the prosecution continued his examination-in-chief, the Appellant again said that he could not recall what happened on 9th December 1994. This was despite the fact that he had looked at the statements during the adjournment. He was then given leave by the Court to refresh his memory by referring to the statements. However, having done that, he repeated that he could not recall the events on the day in question.

5. Counsel for the prosecution applied to turn the Appellant as a hostile witness. Counsel for the Defendant in that case raised formal objection. In any event, the Court ruled that he was a hostile witness and allowed him to be cross-examined by the prosecution on his statements. When he was questioned about his two previous statements, he answered that when making those statements, he had endeavoured to be truthful and accurate. To use his own words, he wanted "to try his best to tell the incident." However, when he was asked about the events on the 9th December, he continued to answer that he could not recall. Finally, when he was asked whether what he said in the statements were true, he answered that he did not want to answer any question. At that time, the Court gave him a second warning on the consequences of failing to answer questions wilfully and without cause. The learned Magistrate also reminded him of the possibility of a 12 month imprisonment.

6. However, when he was further questioned, the gist of his answers was again that he could not recall what happened. The prosecution then requested for a short adjournment. After the adjournment, the Appellant was given a third warning by the Court. The prosecution then asked no further questions and defence counsel had no cross-examination. The Appellant was then excused from the witness box but the Court informed him that he was not released from further attendance under the witness summons. Before he left, the learned Magistrate advised him to get legal advice. The case was then adjourned.

7. The Appellant appeared in Court again on the following day and the day after that. He was accompanied by his lawyer Mr Gerber. They were informed that he was not required for the time being but might be required to be cross-examined at some later stage.

8. As it turned out, three other witnesses who were also summoned to attend Court were called on the subsequent days of the trial. All of them had given similar answers to the effect that they could not recall what happened. At the end of the day, the Court held that there was no case to answer for Mr Yeung, the Defendant in that case, and he was acquitted and discharged.

(2) events after the trial

9. The Appellant was then informed by letter from the clerk to the Magistrate that he was required to re-attend Court on 5th June 1995. This was later postponed to 30th June 1995.

10. On the return day, the Appellant attended Court and was represented by Counsel. Counsel was heard. The learned Magistrate, having adjourned for a while for deliberation, resumed and ruled that the Appellant had refused to answer questions and that there was no just cause for doing so. He adjourned the matter for further argument on the issue as to whether s.21(4) of Cap.227, which was then understood to require the Magistrate to impose a 12 month imprisonment, was contrary to the Bill of Rights.

11. The Court reconvened on 27th November 1995. It was conceded that the 12 month term referred to in that sub-section was the maximum sentence and that the Court had a discretion. Counsel for the Appellant made an "observation" that the matter should be dealt with by another Magistrate and not the Magistrate who heard the criminal trial. Having heard submissions from both the Appellant and the Attorney General, the learned Magistrate decided that he must continue with the matter until its close. Counsel then made a submission on sentence. On 29th November 1995, the learned Magistrate sentenced the Appellant to six weeks' imprisonment.

Should the same Magistrate deal with the matter

12. The first ground of appeal set out in the Perfected Grounds of Appeal is that Article 10 of the Hong Kong Bill of Rights provides that in the determination of any criminal charge, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal. It is submitted that a determination under s.21(4) of Cap.227 amounts to a conviction for an offence which is defined in s.3 of the Interpretation of General Clauses Ordinance, Cap.1 as including any contravention or other breach of or failure to comply with any provision of any Ordinance for which a penalty is provided. Hence, the Appellant should also be entitled to such a hearing. During his submissions, counsel for the Appellant indicates that he would not seek to argue that s.21 (4) was contrary to Article 10 of the Bill of Rights. However, it is submitted that the Magistrate was neither independent nor impartial. Counsel argues that the learned Magistrate was acting as both prosecutor and judge in his own cause. Counsel submitted that the matter should have been dealt with by another Magistrate.

13. That part of s.21(4) of the Magistrates Ordinance which is relevant to the present case is as follows:

"If any person having come before a Magistrate whether voluntarily or in obedience to a summons ... or having been sworn shall without just excuse refuse to answer such questions as shall be put to him concerning the premises, the Magistrate may, by warrant under his hand and seal, order him to be imprisoned for 12 months ... or he may impose upon such person a fine not exceeding $5000." (my emphasis)

14. As counsel for the Attorney General said, it is clear that this section not only anticipates but requires the Magistrate, who hears the trial during which a witness refuses to answer questions after having been sworn, to deal with such witness. Section 21 of the Ordinance provides for the machinery to secure a witness to give evidence before a Magistrate. It confers a power on the Magistrate to issue a witness summons, to issue a warrant to secure the attendance of the witness and to punish any person who fails to comply with a warrant, or fails to attend Court or to testify.

15. In my view, the power conferred upon the Magistrate to punish a witness under s.21(4) is in addition to his Common Law power to commit a person in a summary way for contempt of court. This power serves two purposes : first, to ensure the due administration of justice, and second, to preserve the Court's dignity and the efficacy of its process. There is little difference between committing a contempt in the face of the court, such as throwing something at the Magistrate, and refusing without just excuse to answer questions put to him during the course of a trial. In the one case, it is disrespectful to the Magistrate by throwing things at him and in the other case, it is disrespectful to him by flouting his order. In both cases, it puts not only the dignity of the Court but also the administration of justice at risk. If there is any difference, I should think that the latter case is more serious because it is not only directed at the Magistrate himself but also goes to the very root of our system. In both cases, I have no doubt that the matter must be seriously dealt with and that the Magistrate has the power, one under Common Law and the other under statute, to deal with the matter himself.

16. It is true that the Magistrate, in one sense, is "prosecutor and judge" in his own cause. However, in my view, there are good reasons that he should do so. The contempt or refusal is usually quite clear to everyone including the contemnor himself. It is not necessary to file any complaint or indictment against him. Second, the Magistrate who has witnessed it is in a much better position than another court to deal with the matter. Third, if the power to punish for contempt is to preserve the dignity of the court and to convey the message that the court must be respected and its order must be obeyed, then it would not be conducive to the good administration of justice if the Magistrate cannot deal with such blatant flouting of the court and its order himself but has to leave the matter to be adjourned to and be dealt with by another court. The latter course may involve not only the filing of a complaint or indictment, but also the Magistrate whose order had been disobeyed or against whom the contempt was committed having to be called to give evidence and cross-examined on matters which are so obvious to the contemnor and anybody present in open court. In my view, as long as there are safeguards for the rights of the contemnor, I cannot see any unfairness towards him if he is dealt with summarily by the same Magistrate.

17. Counsel for the Attorney General has referred me to the Canadian case of R. v. Cohn (1984) 15 CCC (3d) 150 where the Ontario Court of Appeal recognised the potential danger in summary proceedings for contempt in refusing to testify and held that the summary contempt proceedings are not inconsistent with the relevant parts of the Canadian Charter of Rights which are similar to our Article 10. In fact, counsel for the Appellant does not contend that s.21(4) was contrary to Article 10 and was therefore repealed.

Whether unfair to Appellant.

18. The second ground of appeal relied on by counsel for the Appellant is that the learned Magistrate should have conducted a full inquiry including affording the Appellant an opportunity to give evidence prior to the conclusion of the prosecution case. He should not have permitted circumstances to develop to a situation which was oppressive to the Appellant. There was a breach of the rules of natural justice. As a result, the finding of the Magistrate was unsafe and unsatisfactory and should be set aside.

19. It is submitted that it was clear to the Magistrate that the Appellant was under fear and that the question arose as to whether such fear had been brought about by threats sufficient in law to amount to duress and thus providing the Appellant with a just excuse. But the Magistrate had warned the Appellant on no less than three occasions, had permitted the prosecutor to speak personally with the Appellant but failed to make enquiry as to what transpired between the prosecution and the Appellant, failed to make a full inquiry as to circumstances surrounding the suggestion that the Appellant had refused to answer questions.

20. There is nothing in s.21 or anywhere in the Magistrates Ordinance regarding the procedure to be adopted in a similar situation. There is of course a danger in dealing with a person in contempt of court in a summary way. As Stevenson L.J. observed in Balough v. St. Albams Court (1975) Q.B. 73 :

"The power (to summarily commit for contempt) is both salutary and dangerous : salutary because it gives those who administer justice the protection necessary to secure justice for the public, dangerous because it deprives a citizen of safeguard generally necessary to secure justice for him."

21. In R. v. K (1983) 78 Cr. App. R.82, it was held that the rules of natural justice should be observed, that the judge should give the person an opportunity of seeking and taking legal advice and being represented. In R. v. Montgomery (1995) All ER 28, the Court of Appeal briefly touched upon this at page 33 :

"So long as the prosecution case remains open, it is always desirable that the witness should have the chance to reconsider his position with the benefit of legal advice. Where the refusal of the witness to give evidence is maintained, he must, nonetheless, be given the opportunity to give evidence as to his reasons in the summary proceedings for contempt which follow. Such opportunity and/or the opportunity to apologise personally, or through Counsel if he is represented, are essential to a fair and reasoned decision upon sentence ..... Finally, though again it is not a consideration which arises in this case, it has repeatedly been made clear ... that unless there are good reasons for dealing with the matter quickly, the question of sentence upon the contemnor is best left to be dealt with at the end of trial or at least at the end of the Crown's case."

22. Although this passage seems to deal with the procedure for sentence, I think it also throws light on what a Magistrate should do when he is faced with the situation where a witness has refused to answer questions. I note in passing that there is nothing in that case which suggests that the same judge or magistrate should not deal with the matter.

23. It is therefore important that in dealing with a person in a summary way for a contempt in the face of court or for a breach of s.21(4), some safeguards should be provided to him. He should be allowed to know what he is accused of. In both cases, the contempt and the refusal to answer questions put to him is usually clear and obvious to anyone in court. But it is still incumbent on the Magistrate to inform him that he would be dealt with summarily in accordance with either the Common Law or the statutory provision. Then the person should be allowed an opportunity to defend and this includes a right to legal representation, a right to call evidence, and a right to make submissions.

24. Counsel criticises the learned Magistrate for conducting in a manner which was oppressive and unfair towards the Appellant. With respect, I do not think that can be correct. At the criminal trial when he was giving evidence, the Appellant had said many times he was frightened and could not recall what happened. It is true that the Magistrate did not record the question put to the Appellant by the prosecutor. However, he was not obliged to do so. That was an examination-in-chief and it is not usual to record the questions as well. Anyway, I do not think the questions were that important. His answers were clear enough. It was only after the Appellant had indicated that he could not recall because he was frightened that the court gave him a first warning. I cannot see how the learned Magistrate can be criticised for not asking the witness there and then as to why he was frightened. He could not have made any inquiry at that time because his principal concern was the proper conduct of the trial. If he had made such enquiry, it might turn out that the reason given by the Appellant would be prejudicial towards the defendant with the result that the trial might have to be aborted and the Magistrate might not be in a position to conduct the trial. I cannot see what else the Magistrate could have done at that stage. However, after such warning, the witness was recorded to have said "I don't want to say what happened". I must say the learned Magistrate was nonetheless able to keep his patience notwithstanding such answer. He adjourned the case for the prosecution to consider its position and allowed counsel to speak to the Appellant and tried to persuade him. It is clear that the learned Magistrate could not compromise his position as the trial Magistrate or do anything which might jeopardise the defendant in that case. It was then up to the prosecution to sort out why the Appellant would behave in that manner and to tell him there was nothing to fear. I do not think what the learned Magistrate had done can be regarded in any way as improper.

25. During the adjournment, the Appellant had requested to be shown his statements to the police and had read them before the hearing resumed. The examination continued. Yet, when he was asked about the matter, he still said that he could not recall what happened. He was there and then given leave to refresh his memory by referring to the statements and he read them again in court. Notwithstanding that he had read those statements over lunch, had just finished reading them in court and had those statements right in front of him, he still maintained that he could not recall the events. It is clear beyond peradventure that he was not willing to testify to the events.

26. The learned Magistrate then dealt with an application which was not strongly opposed by the defence that the Appellant be turned hostile. It is alleged that by ruling that the Appellant was hostile, the learned Magistrate had in fact pre-judged the matter and had already come to the conclusion that the Appellant had refused to answer questions. It is also argued that the Magistrate made the ruling before giving the Appellant the opportunity to explain himself in the witness box. With respect, I cannot agree. That the Appellant had refused to answer questions put to him was quite clear, not only to the learned Magistrate but to everybody in Court. Not only did he say he could not recall, he had also indicated quite clearly that he did not want to give evidence. That is a fact. I know of no rule or law requiring the Court to allow a witness an opportunity to explain why he should be declared hostile. In considering the application to turn a witness hostile, the Court had to decide whether there was an animus against the prosecution. In view of the answers given and the indication made by the Appellant, such state of mind could not have been clearer. Whether the Appellant had any explanation or any just excuse is of course another matter. The learned Magistrate had to get on with the trial. He had also the interest of justice, that of the prosecution representing the interest of the public as well as the interest of the defendant, in mind. It was not the appropriate time to hear his explanation.

27. After the Appellant had been turned hostile, one of the first answers he gave was : "I do not wish to be a witness. I have heart disease." He accepted that the statements which he made to the police were made very shortly after the alleged incidents and that he made them doing his best to tell the incidents and they were therefore correct. However, he maintained that he could not recall and finally when he was asked whether his statements were true, he said "I don't want to answer any question." It was after that that the learned Magistrate gave him a second warning. Even then, the Appellant had persisted that he could not recall what happened. It was then that the Magistrate gave him a third warning. The prosecution, having tried all he could on the Appellant but to no avail, had to throw in the towel.

28. Looking at the transcript, I cannot see any ground which might suggest that the learned Magistrate was oppressive in any way. He had given the Appellant every chance, one after another, to give evidence.

29. What happened after this is, in my view, important. The learned Magistrate informed the Appellant that he was not released and had to attend Court on the following morning and he was advised to seek legal advice. On the following day, the case was adjourned again to the next day. On that day, the Appellant appeared with his lawyer. They were told again by the Court that the Appellant might be required to be cross-examined at some later stage. At that stage, the prosecution had not closed its case. It is quite clear that the Appellant had had the benefit of legal advice. He must have told his lawyer his reasons for not wanting to give evidence and must also have been advised as to the seriousness of refusing to answer questions, the danger of being dealt with under s.21(4) of Cap.227 and what he should do to avoid such consequences. If he had wished to repent or purge the contempt by offering to give evidence, he could have informed the Court. This was not done. He cannot be heard now to complain that he had not been given an opportunity to give evidence in relation to the trial prior to the close of the prosecution case.

30. It is also said that the Magistrate had already made up his mind in coming to "a provisional view" before hearing the Appellant. Counsel for the Appellant further submits that the Magistrate did not have an open mind when he dealt with the Appellant. He had already pre-judged the issues. As a result, it is submitted that the Appellant did not have a fair hearing.

31. I think this submission cannot be sustained. When a Court proposes to invoke s.21(4) of Cap 227, it has to indicate the basis of doing so. Before he could consider invoking s.21(4) of Cap 227, the learned Magistrate must have formed a view as to the behaviour of the witness, that is, the witness had refused to answer questions put to him. That is a prerequisite. It is clear that the learned Magistrate had indicated to the Appellant that he intended to invoke that particular provision, and he only came to a decision after hearing submissions from counsel for the Appellant. It cannot be said that he must have come to the matter with a closed mind.

32. Counsel also submits that the Magistrate had failed to give the Appellant an opportunity to give evidence or to call evidence before he dealt with the Appellant. I do not think there is substance in this allegation. In the letter from the clerk of the Magistrate to the Appellant, it was quite clearly stated that the Court wanted to deal with him under s.21(4). When he attended Court on 30th June, he was represented by counsel. The learned Magistrate asked counsel whether he knew the purpose of attending Court on that day. Counsel answered "yes" and handed in a written submission. According to the record, the Court then referred the case of Montgomery to counsel. It is suggested that by referring this case, which was a case on sentence, to counsel, the learned Magistrate must have made up his mind and therefore could not have dealt with the question with an open mind. Montgomery was a case which dealt with sentence for a contempt of Court. But it also dealt with some procedures which the Court might be advised to adopt in similar situations. A reading of that case would reveal that it mentioned a right to give or to call evidence before the court. Counsel came prepared and armed with a written submission which contained various headings including the issues of refusal to answer questions and of a just cause. I do not think it can lie in the mouth of the Appellant to say that he was not expressly told that he had a right to call or give evidence.

33. I are quite satisfied that the Appellant had not been treated unfairly. I see absolutely no merit in this ground.

Refusal to answer questions

34. Under s.21(4), the Magistrate has to be satisfied on two matters before he can impose a penalty. First, he must be satisfied that the witness has refused to answer such questions as shall be put to him. Second, the witness has no just excuse.

35. Counsel for the Appellant submits (as his fifth ground of appeal) that the Magistrate was wrong in finding that the Appellant had refused to answer questions put to him. It is submitted that there was no sufficient basis in the evidence to justify this finding to the criminal standard. It is argued that the Magistrate had already indicated that he had come to a provisional view after listening to and observing his performance in the witness box. It is said that he had kept a close mind at the time when he entertained representations on behalf of the Appellant on 30th June 1995, and there was nothing by way of evidence which enabled him to change his provisional view to proof up to the criminal standard. There was no sufficient enquiry of the matter to justify his finding beyond reasonable doubt. Furthermore, it is argued that being frightened and unable to recall matters are not virtually exclusive.

36. I accept that the standard of proof is the criminal standard of beyond reasonable doubt. However, in my view, the evidence before the learned Magistrate was overwhelming. Not only did the Appellant say repeatedly that he was frightened and could not recall, he had also said that he did not want to say what happened, did not wish to give evidence and did not want to be a witness. A person may on some occasions, be so frightened that he cannot recall the events in the past. But that was not the case here. He had clearly said that he was unwilling to give evidence. He was given every opportunity to give evidence or to say what he wanted to say, even his fears. The prosecution had spoken to him to allay his fears. He had the chance to look at his statements which were made a few days after the alleged events. Even when he had his statements in front of him, he said he could not recall. This simply cannot not be true. After all, he is a highly educated person.

37. When the Appellant, represented by Counsel, appeared before him on 30th June 1995, the learned Magistrate was prepared to hear him. Counsel came prepared with written submissions dealing with exactly the two points which I have mentioned as arising from s.21(4). However, there was no indication that the Appellant would give or call evidence. Counsel dealt with both liability as well as sentence. In my view, unless there was any evidence to the contrary, the learned Magistrate was perfectly entitled to convert that provisional view to a firm conclusion beyond reasonable doubt. On the evidence before him, I have no hesitation in saying that he was right.

38. I do not think there is any substance in this ground.

Just excuse

39. The third and fourth grounds can be dealt with together. It is that the learned Magistrate was wrong to shift the onus to the Appellant to establish just excuse. He also erred in finding that threats of violence or intimidation could never amount to just excuse. It is submitted that the learned Magistrate was wrong to say :

"The present Court was not about to embark on an exercise to determine what is and what is not 'just excuse'. It was certain that threats of violence or intimidation could never amount to 'just excuse'. In coming to that view it borrowed from Potter J. in R. v. Montgomery [1995] 2 All ER page (28) page (34) para.c where he say '... where victims or witnesses to serious crimes refused to do their duty or succumb to threats or fear of reprisals by refusing to give evidence or answer questions, the result is a failure of law and order :...". If threats and intimidation became a just excuse for refusing to answer questions, the current trickle of cases beset by such incidents would become a torrent with the consequences foreshadowed by Potter J."

40. Counsel submits that if duress can be a defence to contempt of court, so can genuine fear.

41. There is no authority on the burden of proof with regard to the issue of just excuse. In my view, since a person is liable to be punished by imprisonment (for up to 12 months) under s.21(4) of Cap 227, the Magistrate dealing with him has to be satisfied beyond reasonable doubt that he has no just excuse in refusing to answer questions put to him. But while I do not think that a person dealt with under this provision should have the ultimate burden of proving that, he ought to have the burden to show, on the balance of possibilities, that he has such a defence. It must be noted that the prosecution is not present during a hearing of this sort. If he has failed to answer questions put to him, nobody other than himself would be in a position to know why he behaves like that. There may already be some evidence before the Court to this effect, or he may like to offer an explanation or call evidence. It would be difficult for anyone else to show that he has or has no just excuse. Afterall, it is his civic duty to testify as to what happened in an alleged crime. He is also under a witness summons to come to court to testify. Finally, he has made an oath or affirmation that he shall tell the truth. If he fails to do that, nobody except himself knows why. I take the view that it is for the Appellant to satisfy the Magistrate on a balance of probabilities that he has a good reason for not answering questions put to him during the trial and it is for the Magistrate to be satisfied beyond reasonable doubt on all the materials before him that the Appellant has none. That is precisely the reason why the Appellant was brought before the Court and not released under the witness summons.

42. Duress is of course recognised in the case of R. v. K [1993] 78 Cri.App.R. 83 as a defence to contempt of court. However, the present case is not a case of duress. There is not the slightest evidence or even a suggestion of any alleged duress. In fact, when one looks at the written submissions made by counsel for the Appellant before the learned Magistrate, one can see that this was not raised. It was only submitted that the Appellant was "in fear for his safety". It was then argued that such a fear was a just cause. That is, of course, far from duress. Counsel for the Attorney General is right to say that the Appellant had not even begun to show duress.

43. However, if the learned Magistrate had intended to say that no threats of violence or intimidation can amount to just excuse, I would respectfully disagree in the light of the judgment of Potter J. in Montgomery, particularly what he said at p. 34C. I do not think that the Court of Appeal in that case went as far as to hold that threats or fear of reprisals would never amount to a defence in a case of contempt of Court and by analogy to a just excuse under s.21(4) of our Cap 227. All the court there was saying was that if witnesses or victims refuse to testify because they succumb to threats or fear or reprisal, that would be a failure of law and order. That must be right.

44. In the present case, apart from asking counsel to make submissions on his behalf, the Appellant had not given or called any evidence. The only evidence before the Court was what he said in open court to the effect that he was frightened. In my view, without more, that cannot be a just excuse. Was he threatened by anyone? If so, when was that? Was it before he came to Court to testify? Was it during the adjournment? Why would he not tell the Prosecution or the Court? There is no answer to these questions.

45. There was simply nothing to assist the learned Magistrate, apart from a mere assertion that the Appellant was frightened. It is perfectly understandable that as an alleged victim of criminal intimidation and false imprisonment the Appellant would be frightened. It is also noted that although he was an alleged victim, he was not the complainant. He had to be summoned to attend Court. However, he well understood the consequences of a failure to give evidence. The prosecution had spoken to him. The Court had given him three warnings. He must have been advised by his lawyers. If there were any reasons for his refusal, whether they be valid or not, he should come out with them. Up to now, nothing is forthcoming. There is as yet not the slightest idea of what the basis of the alleged fear was. It is therefore not unreasonable for the learned Magistrate to say in his Reasons for Determination that in these circumstances, the Court could not embark on a determination of what was or what was not just excuse. None in fact has been offered. In my view, neither the third nor fourth ground of appeal can be sustained.

Conclusion

46. For the reasons which I have given above, it is quite clear that the learned Magistrate was perfectly entitled to come to the conclusion that the Appellant had refused to answer questions put to him and that there was no just excuse. There is no merit in this appeal which must be dismissed.

(Submissions on sentence)

Appeal against sentence

47. I have set out all the facts of this case and the reasons for my decision in dismissing the appeal against conviction. I do not want to rehearse them again.

48. I must say at the outset that it is a very serious matter for a witness to refuse to answer questions put to him without any just excuse. This is because without a witness, a trial cannot proceed. The efforts of the police and the prosecution in bringing the case to court are frustrated. The court cannot administer justice. The system will collapse. It will become a mockery and a laughing-stock as it has in this case.

49. As the Court of Appeal in the case of Montgomery said at p.34 :

"Nothing which we say should detract in any way from the views expressed by the judge that where victims or witnesses to serious crime refused to do their duty or succumb to threats or fear of reprisals by refusing to give evidence or answer questions, the result is a failure of law and order; or that when this occurs it will usually be necessary to impose a custodial sentence of some kind in order to mark the gravity of the matter and to stiffen to resolve of other witnesses or potential witnesses who may be similarly be minded to default in their duty."

The Court also said at p.32 :

"An immediate custodial sentence is the only appropriate sentence to impose upon a person who interferes with the administration of justice unless the circumstances are wholly exceptional."

50. A custodial sentence is usually called for, not only because it serves to punish the witness for what can be nothing else but contempt of court and the system and almost an obstruction of the course of justice. It also serves as a stern warning to the public that the court means business. The giving of evidence in court is not only the discharge of a moral and civic duty but also the discharge of a legal obligation if the witness has been summoned to do so or affirmed to testify to the truth. There are authorities to the effect that a custodial sentence is usually the penalty. There are also cases on the terms of imprisonment to be imposed. They show that the terms vary greatly depending on the circumstances of each case. There is of course on the one hand the extreme case of a witness having received an advantage from a defendant in return for not telling the truth or testifying in court, and on the other hand - the other extreme - that a witness simply wants to help a very close relative or friend, such as a son who has a transgression with the law.

51. The principles regarding sentence in this type of cases have been thoroughly set out by the Court of Appeal in the Montgomery case at p.33 and I do not think I need to set them out again. Suffice it to say that the learned Magistrate appeared to have applied the right principles.

52. There is of course no evidence in the present case of the appellant receiving any advantage from anyone in refusing to testify. Nor is this case that he was at the time trying to help a close relative. Hence, I do not think the learned Magistrate was wrong in principle in imposing an immediate custodial sentence. Any person who fails to comply with s. 21 must face a custodial sentence unless there are exceptional circumstances.

53. However, having said that, I do appreciate that there are special circumstances in this case. The appellant was the alleged victim of these two alleged offences. I do not accept that because it was not he who reported the matter to the police, he should not be punished for not testifying at all. That simply cannot be right. But I do accept he had some fear for his own safety, although it was not substantiated. I think it is understandable that an alleged victim of criminal intimidation and false imprisonment may have some fear. However, I hasten to add that whatever fear he had does not constitute a just excuse.

54. I also note that there were three to four witnesses in the present case who did not answer questions properly on the pretext that they had forgotten about the events and could not recall them. This appellant is the only person who is brought before the court and has to face a penalty. He is the only person to be frank and honest about it by saying that he was not willing to give evidence. I also take note that he is a highly educated and intelligent person and is of previously good behaviour. He has now openly apologised to the Court for what he had done. This being the first case of this kind, I think it has already served a stern warning to the public that the orders of the court must be obeyed.

55. So while I do not think that as a matter of principle, the learned Magistrate was wrong in imposing a sentence of six weeks' imprisonment and that such a sentence is excessive, I do think that there are special circumstances which would merit a suspension of the sentence. I would allow the appeal and suspend the sentence for one year.

(P. Chan)

Judge of the High Court