THE QUEEN v. TSE YUK MING AND ANOTHER

HEADNOTE

Power of magistrate to order prosecution to supply copies of documentary exhibits to defence - Whether power exists - Distcretionary - Section 32(1) of the Criminal Procedure Ordinance, Cap. 221 - Magistrate failed to exercise discretion - Appeal allowed - New Trial ordered

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1216 OF 1988

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J U D G M E N T

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On 13th January, 1989, I allowed the appeal, of the two appellants, quashed their conviction and set aside the sentences. I ordered a new trial of both them before another magistrate and indicated that and indicated that I would given reasons and this I do now.

1. The first appellant, TSE Yuk-ming was charged with three charges of false accounting contrary to section 19(1)(b) of the Theft Ordinance. The second appellant, who was an employee of the first appellant, was jointly charged with him in respect of one charge referred to as Charge B. Both of them pleaded not guilty before Mr. Evans, a magistrate and the trial proceeded. At the commencement of the trial, Mr. McCoy who appeared for the appellants both here and below, made a number of applications to the magistrate to order the prosecution to supply him with particulars of the charges and statements of certain witnesses. These applications were refused by the magistrate and following this the first prosecution witness was called. In the midst of the evidence of that witness, Mr. McCoy applied to the magistrate to be supplied with copies of exhibits. To this application, prosecuting counsel responded by saying that he would only supply copies to the defence as and when he was tendering them. He also disclosed that solicitors acting for the appellants already had the opportunity to inspect the documents at the office of I.C.A.C. The magistrate then made a ruling to the effect that in fairness the prosecution should make copies of all exhibits proposed to be tendered and have them ready to be supplied to the defence. There was then the luncheon adjournment.

2. When the hearing was resumed after lunch, the magistrate reversed his previous ruling holding that he had no power to make the order and suggested that as a matter of fairness that the prosecution should provide the defence with copies of the relevant exhibits as the trial proceeded. He relied as authority on the decision of R v Holland which was cited in Bruce and McCoy Criminal Evidence Hong Kong. Both authors appeared before me in this appeal and it was pointed out by one of them that that case was decided in 1792 when an accused did not even have any right to given to copies of exhibits and therefore could not be regarded as an authority.

3. Following this ruling, Mr. McCoy applied for a short adjournment and when hearing resumed, the appellants pleaded guilty to all the charges laid against them and they were convicted and in the case of the first appellant he was sentenced to 9 months imprisonment and in the case of the second appellant she was sentenced to 3 months imprisonment.

4. They appealed against both conviction and sentence.

5. Before me, Mr. McCoy complained bitterly that because of the failure to supply him with the materials he requested and in particular copies of the documentary exhibits to be produced by the prosecution at the trial, he was hampered from conducting a proper and effective defence on behalf of his clients and hence he was compelled to advise them to plead guilty first as he could see no other way out. I male no comment as to whether this was in fact the proper course or the only course for him to take.

6. In his submission, Mr.McCoy referred me to some decisions but in the light of our own statutory provisions, I find it unnecessary to deal with those cases or counsels' arguments.

7. Section 32(1) of the Criminal Procedure Ordinance Cap. 221 provides:

``Either party shall be at liberty to apply to the court or a judge for a rule or order for the inspection, by himself or by his witness, of any real or personal property, the inspection of which may be material to the proper determination of the issue and it shall be lawful for the court or judge, if it or he thinks fit, to make such rule or order, on such terms as to costs and otherwise as the court or judge may direct."

8. Subsection 2 says:

"In this section, "court" includes District Court and a magistrate."

9. In my judgment, this provision empowers the magistrate to make the order he was asked to make. No doubt, the exercise of this power is a matter of discretion. The case involves false accounting which is an offence of a commercial nature. It was set down for hearing before the magistrate for four days and this indicates that it was a matter of some complexity. Documents form an important part in a commercial crime trial and it is essential that the defence should have copies of those to be produced to enable them to meet the case. This is a proper case for the magistrate to exercise his discretion in favour of the appellants and he ought to have done so.

    Bearing in mind the principle that justice must not only be done, it must also be seen to be done, I ordered a new trial.