THE QUEEN v. OR SAI-POR

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL No. 191 of 1987

HEADNOTE

Magistrate making contemporaneous note in record of his provisional impression of a witness - not improper - R. v.  Lam Lai-on [1970] HKLR 325 not followed.

Magistrate's record of trial - must be kept in a manner readily intelligible to a stranger – Magistrates should read “The Magistrate” by Sir Alison Russell.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 191 OF 1987

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JUDGMENT

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1. This is an appeal against conviction on charges of theft and unlawful possession of property.

2. The grounds of appeal are directed mainly to the magistrate's record, his manner of keeping it, and deficiencies therein. It is not suggested that any individual complaint, considered alone, is sufficient to call for setting aside the conviction. It is, however, contended that considered together, they render the trial and conviction unsatisfactory.

3. The first complaint is that just before commencing the trial, the magistrate saw the prosecutor and the defence counsel in chambers, in the absence of the Appellant, and there was a disucssion as to which procedure would be adopted in relation to contesting the admissibility of confessional statements, and additionally the prosecutor outlined the prosecution case. Of course, this being a summary trial, the magistrate did not have depositions from which to get an indication of what the case was about, or the type of evidence which would be led. It appears to me that what occurred was merely a form of pretrial review, in the absence of the Appellant, who I presume was kept in the picture by his counsel. As recent Court of Appeal decisions have demonstrated, one should be cautious about seeing counsel in chambers, but it does not appear that any harm or injustice arose from what happened in this case. Another complaint was that subsequently in open court, the outline of the prosecution case, as it had been given in chambers, was with the consent of the Appellant's counsel, deemed to have been repeated in open court. That is not to be encouraged, but again it has not ~ the present case resulted in any injustice.

4. The next complaint is that the magistrate's record, in respect of a number of witnesses, does not record their names or their full names. A magistrate is, pursuant to 34(1)(b) of the Magistrates Ordinance, required to record the names of the witnesses. In respect of one witness the magistrate has not recorded any name or identification at all. In respect of others he has just recorded in the following manner: "P.W.1 Miss Wong”,"P.W.3 D.P.C. Yeung", "P.W.4 DPC3061", " P.W.6 Station Sergeant Liu”. The surname and other names of a witness should be recorded. In respect of some witnesses the record does not indicate whether they were sworn or affirmed. That should always appear in the record.

5. A number of witnesses gave evidence of such matters as an article being pawned, or a person being arrested and searched, but the witness is not recorded as saying on what date the incidents occurred. Indeed the record contains nothing to indicate that there were any questions or answers related to dates. If no such question had been asked, the magistrate should have asked it himself and recorded it. In the present case, by putting various pieces of evidence together, it is possible to arrive at the relevant dates. It ought not to be necessary for such an exercise to be undertaken on appeal.

6. Part of the typed appeal record reads very strangely. Neither counsel, on appeal, were able to say with any confidence whether what was recorded was the evidence of a witness, or the magistrate's own note of his own compilation of a list of cautioned statements with his own brief commentary on them. I called for the magistrate's original record. It was in manuscript in black ink, with numerous notes, observations, signs and annotations in red ink. Some of these red ink additions had been typed in the appeal record, and some had not. It is quite clear from looking at the original record, that what is in black ink, is the note of the evidence, the official record, and what is in red ink are the magistrate's observations and comments and his own references added later, probably when he was compiling his statement of facts. I am satisfied there was no intention on the part of the magistrate to mislead. However an official record ought not to be added to or written on in this way. Further it appears that the appeal record was not checked, though the magistrate has certified it as correct. If he had checked it, I cannot believe he would have allowed his personal notes to have been included in the record. Having seen his original record, it is clear what was the evidence of the witness and lamentable as is the situation that has arisen there is no good ground of appeal involved.

7. Another ground of appeal was that, in the course of the evidence of a particular witness, the magistrate, in parenthesis, noted “evasive”. It is contended, on behalf of the Appellant, that it is improper for a magistrate to make such a note, as it indicates a prejudgment on credibility, before the conclusion of the case. Reliance was placed on R. v. Lam Lai-on [1970] H.K.L.R. 325. As was pointed out in that case, the Colonial Criminal Procedure Codes, in a number of jurisdictions, contain express provision that a magistrate may record such comments. Indeed there is such a provision in the current Criminal Procedure Code of Brunei. The learned Chief Justice Rigby, in that case took the view that it was an undesirable practice, as it left the magistrate open to the criticism that he had prejudged the credibility of the witness before the case had concluded.

8. I take a different view. I consider that it is quite proper for a magistrate to form a provisional and tentative view at various stages of the evidence. Of course it must go no further than that. It must not be a concluded view. That it is not improper to form such a view is indicated by the decision in Whitford Association v. Manukau City Corporation (1974) 2 N.Z.L.R.340. Preconceived opinions do not constitute bias, as it does not follow that evidence will be disregarded, see also Reynolds v. Reynolds [1973] 1 A.L.R. 318 and re Morling; exparte AMIEU [1986] 66 A.L.R.608. In Prasad v. Comptroller of Customs, noted at (1962) 106 Solicitors Journal 628, the Privy Council is noted as saying that they appreciated that a judge, sitting without a jury, might without impropriety give vent to interim expressions of opinion which it would be gravely improper to express in a trial by jury.

9. The present trial, unfortunately took place on eight different days spread over a period of four weeks. No doubt over that period the magistrate heard many other cases. The magistrate considered it would be helpful to record his interim impressions of witnesses. I do not consider he is open to criticism for doing so.

10. Another ground of appeal was that the prosecutor, in his final address commented on the absence of evidence from the Appellant. Section 54(1)(b) of the Criminal Procedure Ordinance provides that the failure of a defendant to give evidence shall not be the subject of any comment by the prosecution. The comment was made specifically in relation to an offence under section 30 of the Summary Offences Ordinance of being in possession of property reasonably suspected of being stolen or unlawfully obtained, and failing to give an account to the satisfaction of the magistrate as to how he came by it. It is quite understandable that in the light of the wording of the particular offence, the prosecutor observed that in the absence of defence evidence there was no account, from the defendant, of how he came by the property. Before a professional magistrate such a remark has not resulted in a miscarriage of justice.

11. Another ground of appeal is that the magistrate in ruling on the admissibility of confessional statements by the Appellant and a codefendant, did not deal with them separately. In his rulings the magistrate did not go into great detail. He was painting a broad picture. He continually referred to "both defendants". He might equally have referred to "each defendant", and if he had done so, a lot of the criticism would fall away. In his statement of findings the magistrate dealt in more particularity with the evidence and his conclusions thereon in respect of Appellant's statements. It appears to me that while his choice of words in his ruling, were unfortunate, he did not fall into the error of considering that the Appellant and the other defendant stood or fell together as regards their statements, nor did he consider in respect of either matters that were only relevant or admissible in respect of the other.

12. Another ground of appeal is that the magistrate in his findings, descended into advocacy in order to support his decision, and reliance was placed upon R. v. Lam Poon-ho Crim. Appeal 289/71. I do not consider that to be so. He was merely exposing his mental processes in coming to conclusions to acquit on some charges and convict on others.

13. There were some other grounds of appeal, which were sufficiently dealt with in the course of argument, and which do not call for any further comment.

14. Though there are many deficiencies, lapses and errors in the manner in which the record was kept, they do not either individually or together amount to a sufficient ground to set aside the convictions. I would, however, repeat that magistrates should remember they are keeping the official record of the court. It must be kept in a manner that is readily intelligible to a stranger who refers to it. Magistrates should read “The Magistrate" by Sir Alison Russell, which is available in the Supreme Court library. It contains a fund of sensible advice, not only as to how to keep a record, but also in relation to other matters that concern magistrates.

15. Having condemned the magistrate for the manner in which he kept the record of proceedings, I wish to commend him for his statement of findings. They are excellent, set out in a clear logical manner, giving good and adequate reasons and displaying great commonsense allied to a degree of acumen.

16. The appeals against conviction are dismissed.