THE QUEEN v. WONG YAT TAN

HEADNOTE

                Appeal against conviction by magistrate for aiding and abetting illegal immigrants to remain in Hong Kong - witness from China aged 15 - enquiry into whether she understood oath - whether a determination made by magistrate - whether prosecution or defend entitled to ask question.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1395 of 1990

___________

JUDGMENT

___________

1. On 20th August 1990 the Appellant was convicted by Mr. Brazier, sitting at Tuen Mun, of two offences of aiding and abetting illegal immigrants to remain in Hong Kong without permission of the Director of Immigration. He was sentenced to 18 months imprisonment on each charge concurrently. He appeals against both conviction and sentence.

2. The story of these two illegal immigrants is as sad as it is common. Both came to Hong Kong. Both ended up working and living at factory premises which, in this case, belonged to the Appellant.

3. Mr. Jerome Mathews who appeared for the Appellant, both here and below, made three submissions, each one, he suggested, being enough to allow this appeal.

4. The first point he took was that there was insufficient evidence before the learned magistrate to prove that the two persons or either of them were, in fact, illegal immigrants. The first witness, who was a man, stated that he was born in China. He said he had never been in Hong Kong before. He had never applied for a Hong Kong Identity Card. He said he came for about 10 days in May 1990.

5. The second immigrant was a girl aged 15 who confirmed that she had never applied for a Hong Kong Identity Card or for any other travel documents. She told the usual tale of difficulties in China and said that she was cheated by someone to go to Shun Zhen (sic) where she climbed over a mountain into Hong Kong on the 21st of June.

6. It is to be regretted that no certificate under the Immigration Ordinance was available to prove conclusively that the two persons were in fact illegal immigrants. However, in my judgment, the learned magistrate was perfectly entitled to infer from the evidence before him that both those persons were in Hong Kong illegally without permission and, indeed, that was the only inference that could be drawn from the evidence. In my judgment, there is nothing in the first ground advanced by Mr. Matthews.

7. The second ground is that the learned magistrate entered into the arena and asked many more questions than did Mr. Matthews for the defence. In particular, in relation to the 15-year-old girl, whereas Mr. Matthews asked no questions in cross-examination, the magistrate proceeded to ask some 12 questions. Mr. Matthews further complains that after the learned magistrate had asked these 12 questions, he did not offer Mr. Matthews or the prosecutor any opportunity to ask any questions arising therefrom. On the other hand, Mr. Matthews, for reasons which he attempted to explain to me, did not ask the magistrate for permission to ask any further questions. Mr. Matthews further complains that the learned magistrate asked 10 questions of the first witness. The tally of questions of both immigrant witnesses was 38 from the magistrate and 5 from Mr. Matthews.

8. A magistrate is perfectly entitled to ask questions in order to understand the case that is being presented before him. However, he must not lose "his appearance of neutrality", as it, was put by Cons, V.P. in R. v. Lau Hing On, 1986 C.A. 378. Further, in that case the learned Vice-President said this, after asking whether, in that case, the Defendant had been genuinely deprived of a fair and impartial trial:-

 

"Has that happened in this instance? Of course it is not necessarily the length of the questioning or the number of questions asked that is crucial. We have to consider rather their nature and the purpose that lay behind them."

9. Having read and re-read the questions asked by the learned magistrate in this case, I am not in a position to conclude that he lose his neutrality or that the Defendant was, on that ground alone, deprived of a fair and impartial trial. Having said that it is advisable for magistrates to bear in mind that there is, indeed, a difference between, on the one hand, asking questions which are designed to clear up uncertainties and to better understand the case being presented before them, and on the other, asking questions which it is felt the prosecution should have asked, but did not. In my judgment, this case falls on the correct side of the line.

10. The third ground of appeal has more substance and has given me cause for some concern.

11. The record at p. 13 shows that the 15-year-old girl was affirmed in Chiu Chow. She said she was born in China and was 15 years of age. There then followed this exchange between the learned magistrate and the girl.

         "Court: Been in court before?

12. Take oath again.

13. Does.

14. Although it does not so appear from the record, I was told, and the prosecution did not challenge this, that the next series of questions were asked by the court prosecutor.

 

Wait. At moment I have to be satisfied you understand truth and what it is.

 

Court: Proceed."

15. After the learned magistrate had said "proceed", the prosecutor began examining the girl in-chief. Although the learned magistrate said "proceed", it still appears that the girl took the oath on two occasions and after the second occasion, she stated that she did not understand it. Most unfortunately, at no stage does the learned magistrate make clear whether he is treating her as having affirmed or as giving her evidence unsworn. However, in his findings, he said that he found both immigrants to be honest witnesses. He then added this:-

 

"Thus, whilst I thought they could have told more, I was satisfied that the bit they did tell was the truth."

16. In view of the girl's equivocation in relation to understanding the importance of telling the truth, I feel it behoved the learned magistrate to subject her evidence to closer scrutiny.

17. However, a more serious irregularity occurred by reason of the learned magistrate permitting the prosecution to ask the girl questions as to her understanding of the truth. Allied to this is the point that the defence was not afforded a similar opportunity.

18. Mr. Matthews was able to cite a case in which a court in Victoria in 1889 had to consider a similar situation. In R. v. Lyons 15 VLR 15 , a child of 8 was put in the witness box. The judge asked whether she understood the nature of an oath, and quite frankly she said she did not. Later she told the judge if she told an untruth she "would go into everlasting fire". Defence counsel then sought to cross-examine her further on her competency, but this was refused. At the end of her examination in chief, defence counsel asked "Do you understand the nature of an oath", to which she replied "No".

19. The Court of Appeal held these questions and answers furnished no reason for withholding the evidence of the child from the jury. At p. 18 one finds the following passage in the judgment of the court.

 

"The competency of the witness is a question to be determined by the judge at the trial in civil as well as in criminal cases; and while it is proper and usual that the judge should receive suggestions from prisoner's counsel, that either from tender years or any other cause it would be expedient that he should satisfy himself that the witness proposed to be sworn is a competent witness, yet all such suggestions are offered by counsel as a friend of justice... rather than as standing in the position of the accused person and claiming to exercise a right on his behalf. No authority has been shown, and we are aware of no authority to show that it is the right of any accused person to interpose and cross-examine a witness proposed to be sworn with the view of showing that the witness is not competent. The question whether a witness is competent or not is undoubtedly for the Court and not for the jury.

 

These additional facts raise a question, no doubt, of some importance and proper to be settled, but there seems to be a want of authority upon that question and that want is probably the result of uniformity of practice. Undoubtedly it has been the practice to treat these questions as questions to be put by the Court, and as interrogatories administered merely to satisfy the mind of the Court, and not in exercise of a right of the party. We think, therefore, that neither the additional facts now introduced, nor the question in the case itself, present any ground of objection to the admissibility of this child's evidence, that the evidence was legally admissible, and that the judge exercised a sound discretion in refusing to withdraw such evidence by reason of the question and answer."

20. Phipson on Evidence at paragraph 9-10 (p. 146) states after referring to Section 38(1) of the Children and Young Persons Act 1933 (see Section 4 Evidence Ordinance).

 

"Under this section it is for the judge to satisfy himself (beyond reasonable doubt, it is submitted) that the requirements of the section are present before the evidence is admitted. The judge himself must make the investigation which must be recorded."

21. What the court is obliged to do is to form an opinion whether the child understands the nature of the oath. I am left in doubt what conclusions the learned magistrate arrives at following his and the prosecutor's questioning of the child.

22. The duty of the judge was emphasized in R.V. Surgenor 1940 2 AER 249 where Mr. Justice Humphreys said in the Court of Criminal Appeal when referring to Section 38 of the 1933 Act;

 

"That section quite clearly states and the court has on more than one occasion intimated - that it is the duty of the presiding judge to satisfy himself whether or not a child. of tender age is in a position to be sworn. .... Those who preside on criminal trials ought to remember that it is the duty of the presiding judge to make an investigation himself."

23. In the light of the observations in Lyons, which is cited in cross on Evidence (second Australian edition) and the references in Phipson and the decision of Mr. Justice Humphreys, it does seem clear that only the magistrate should have asked questions designed to elicit the girl's understanding of the truth. The magistrate should not have permitted the prosecution (nor the defence had they applied) to ask her any questions on this subject. The duty to determine whether a witness is competent is solely that of the judge or magistrate.

24. In addition, in this case. I am not satisfied from the record whether the magistrate came to any concluded view on her competency and it is certainly not clear whether she was treated as affirmed or not affirmed. After the enquiry has been carried out, the magistrate must make a determination on this issue and record it. The use of the word 'proceed’is equivocal.

25. In my judgment, the fact that the magistrate did not make clear what his determination was after the girl had been questioned, and the fact that he permitted the prosecution to ask her many questions are sufficient together to render this conviction unsafe and unsatisfactory.

26. I, therefore propose to allow this appeal and the conviction is quashed. In normal circumstances, I would have considered ordering a retrial. But as is common in illegal immigrant cases the two witnesses for the Crown have been repatriated to China and are not available to attend at any subsequent retrial. I, therefore, do not order the Appellant be retried on these charges.