HKSAR v. CHAN PAK YEUNG

HCMA7/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.7 OF 2006

(ON APPEAL FROM TMCC 2552 OF 2005)

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J U D G M E N T

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1. This is an appeal by the appellant against :

(1)	his conviction by Mr Mackintosh sitting at Tuen Mun Magistrates’ Court of the offence of theft, contrary to the section 9 of the Theft Ordinance, Cap.210 (Charge 1) and the offence of doing an act or acts tending and intended to prevent the course of public justice, contrary to common law (Charge 3), and
(2)	the sentence of one month’s imprisonment imposed upon him following his plea of guilty to the charge of providing false information to a pawnbroker, contrary to section 18(2) of the Pawnbrokers Ordinance, Cap.166 (Charge 2).

2. The case for the prosecution which the magistrate found proved was that the appellant, a serving CSD officer, had made contact with a Mr Leung Ka Lun (PW1) through a homosexual chat room on the internet and met him for the first time on the nights of 28 to 29 May 2005.  They had gone to Mr Leung’s home and while Mr Leung was out of the room fetching the appellant a glass of water, the appellant had stolen Mr Leung’s Rolex wrist watch which Mr Leung had previously taken from his wrist.  The appellant had left Mr Leung’s home shortly afterwards.  Mr Leung did not notice that his watch was missing until the following morning.  He then reported the matter to the police.  The theft is the subject to Charge 1.  

3. On 4 June the appellant had pawned the watch for $20,000 at a pawnbroker’s shop in Tsuen Wan.  Although the appellant had produced his own identity card, he had given a false address.  This is the subject to Charge 2 to which the appellant pleaded guilty. 

4. Having learnt that Mr Leung had reported the matter to the police and after visiting the pawnshop where he was told that the watch had been seized by the police, the appellant attempted to persuade Mr Leung to withdraw his complaint to the police.  Not only had the appellant given Mr Leung $20,000 on 4 July 2005 so that the watch could be redeemed once it was returned by the police to the pawnbroker, but he had gone further, and (Charge 3) had given Mr Leung instructions as to how to withdraw the report to the police by telling them that he had been drinking on the night in question, that he had agreed to lend the watch to the appellant but because he was drunk he had forgotten this and had wrongly reported the watch was stolen.

5. The only ground of appeal against conviction now relied upon by Mr Boyton for the appellant relates to the conduct of the magistrate during the trial.  It is alleged that :

(1)	he failed to, or appeared to have failed to, remain impartial during the trial,
(2)	because he was overzealous to ensure that the trial proceeded quickly he had or appeared to have “descended into the arena” by inter alia controlling the conduct of the prosecution, and
(3)	having himself asked questions after re-examination of witnesses, he refused to allow the prosecution to put further questions to the witnesses.

6. In presenting his case before this court, Mr Boyton made clear that he was not relying on the number of interventions by the magistrate but the nature of the interventions which he argued would have caused a fair-minded person listening to the case to conclude that the magistrate had taken over the role of the prosecutor.  Mr Boyton accepted that the interventions by the magistrate individually might not give cause for complaint but he alleges that cumulatively they would have led a listener to conclude that the appellant had not had a fair trial.

7. I am satisfied that there is no substance whatsoever in the contentions put forwarded by Mr Boyton and that there was nothing in the conduct of the magistrate which would have led a fair-minded person listening to the trial to conclude that this magistrate was not impartial, that he was assisting the case for the prosecution, or that the appellant did not have a fair trial.  

8. Remarkably almost all the matters complained of by Mr Boyton relate to the conduct of the magistrate towards the prosecutor and not the defence.  It is contended :

(1)	that the magistrate prevented the prosecutor presenting the case in the manner that she wanted to do so, and
(2)	that he intervened to prevent her asking questions in re-examination.

9. The first complaint relates to the evidence of the alleged victim, Mr Leung Ka Lun.  It is suggested that the magistrate prevented the prosecutor asking relevant questions about the background to his relationship with the appellant before they met on 28 May.

10. The matter arose after the prosecutor had simply asked Leung what had happened on the night of 28 May but had then allowed the witness, without interruption, to give evidence of the nature of a particular website, his log-on name on the website and the fact that he had chatted on that website with others previously.  The magistrate rightly interrupted the answer and asked the prosecutor to direct the witness to the matters in issue in the trial.  He did not tell her that the matters about which the witness was talking were irrelevant or inadmissible.  He specifically told her that if the defence counsel considered the matters were relevant to the question of credibility and raised them in cross-examination she could ask questions about them in re-examination.  Nor did he tell her to ignore the question of whether the witnesses had contacted the appellant before 28 May.  Indeed he suggested that she did ask this question. 

11. What the magistrate was doing in this incident was a perfectly proper exercise in attempting to prevent time being wasted on matters that might or might not be relevant. 

12. It is further complained that the magistrate curtailed the prosecutor asking further questions in re-examination of two witnesses, Leung Ka Lun (PW1) and Choi Lung Wai (PW4).  It is correct that he did so.  From the transcript it is clear that the prosecutor had difficulty putting concise and readily comprehensible questions in re-examination.  This had led to a degree of exasperation on the part of the magistrate which he eventually led him to take the course he did. 

13. Even if the prosecutor had been prevented from asking questions that she might otherwise have asked and which might have been relevant, it has not been demonstrated that any prejudice was caused to the appellant thereby.  In respect of both witnesses defence counsel had previously had full opportunity to ask all questions that he wished of the witnesses. 

14. Mr Boyton argued that in respect of PW1 Mr Leung, the magistrate had curtailed the prosecutor’s re-examination and then asked questions himself appearing to take over the role of the prosecutor.  While the magistrate did ask two further questions, they did not relate to the area upon which the prosecutor had been attempting to ask questions.  They were perfectly legitimate questions to clarify the position as to the light available in the bedroom of Mr Leung.  The magistrate did not ask counsel whether they wished to ask any questions arising from his two questions but counsel were in a position to ask permission to ask further questions if they wished to do so.  They did not. 

15. It is further alleged that the magistrate’s concern with the pace of the trial led to the appearance of an unfair trial.  I was referred to particular instances in the transcript where the magistrate made references which related to the duration of the trial.  None of these remarks was improper and would in any way lead to an impression that the appellant was not receiving a fair trial. 

16. Even Mr Boyton conceded that at no time in the trial was defence counsel prevented from asking any questions he wanted.  Indeed shortly before breaking for lunch on the first day of the trial while Mr Leung (PW1) was still in the course of his evidence and the magistrate asked defence counsel what the issues in the trial were, he expressly told defence counsel that he did not object to him laying as much foundation for the defence case as he wished in cross-examination.  Indeed he emphasised that it was perfectly proper for him to do so. 

17. There is nothing improper, as Mr Boyton suggested, with the magistrate not taking a morning break on 16 November 2005 after the conclusion of the prosecution case and before the start of the defence case.  The trial had only recommenced at 11:22 a.m. that day.  The close of the prosecution case came very shortly after that time.  If defence counsel had needed any time to consider matters with his client before starting the defence case he would have asked for it.  

18. It must be remembered that magistrates and judges have a duty to ensure that trials proceed expeditiously and that prolixity is avoided.  As Taylor LCJ said in R v. Whybrow (Times Law Reports 14 Feb 1994 at p.75) :

“	… The Royal Commission on Criminal Justice Report (Cm 2233 (1993) p 19) recommended that judges should be more interventionist so as to prevent trials becoming protracted.
	Their Lordships entirely supported that recommendation.
	Judges should intervene to curb prolixity and repetition and to exclude irrelevance, discursiveness and oppression of witnesses.”

The conduct by the magistrate of this trial cannot be faulted.  I dismiss the appellant’s appeal against his conviction on Charges 1 and 3.

19. Mr Boyton has conceded that he could not argue that the sentence on Charge 2 was improper if the appeals against conviction on Charges 1 and 3 were dismissed.  

20. I accordingly dismiss the appellant’s appeal against sentence on Charge 2.