ATTORNEY GENERAL v. HUNG KAM LUNG AND ANOTHER

No. 761 of 1987

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H E A D N O T E

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Criminal law and procedure - evasion of liability by deception - trial magistrate expressed a view at outset that the case was a civil rather than a criminal matter - directed defendant to change an unambiguous guilty plea to one of not guilty - directed defendants not to cross-examine - generally intervened in such a manner so as to prevent a full and fair hearing of Crown's case.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 761 OF 1987

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J U D G M E N T

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1. This was an appeal by way of case stated against the decision of the trial magistrate in dismissing a charge brought jointly against both respondents of evasion of liability by deception contrary to section 18B(1)(b) of the Theft Ordinance, Cap. 210.

2. It is the Crown's contention that the learned magistrate, adopted a certain stand in this matter before any evidence had been adduced and maintained his position throughout the course of the trial. In the light of what transpired I must agree.

3. When the charge was initially put to the respondents, HUNG Kam-lung pleaded not guilty whilst his co-accused, YIU Yeuk-fai pleaded guilty. The magistrate then intervened and requested the prosecutor to take further instructions as he was of the view that the case was a civil matter rather than a criminal one. I can only presume that he formed this view on the information contained in the charge as no other particulars would have been available to him at that time. This seems to me to be a premature and unwise declaration to make at such an early stage in a trial and based on such scanty information.

4. The prosecutor returned to inform the court that he was instructed to proceed whereupon the trial magistrate instructed Mr. YIU to change his plea to one of not guilty. There is always an obligation on a trial magistrate in certain circumstances where a defendant is unrepresented to advise him to plead not guilty. This could arise if the defendant, in mitigation, puts forward an explanation which if accepted would amount to a defence. There are obviously other occasions when such advice can also be properly given. I cannot, however, accept that this was one of them. Quite clearly having adopted the view that he did the magistrate had shown a reluctance to hear the case and despite an unambiguous plea of guilty to a charge which was properly brought under the Theft Ordinance had instructed the respondent to deny the charge.

5. The first prosecution witness gave his evidence and the second respondent was informed by the magistrate that there was no need for him to ask any questions in cross-examination. Prior to the second witness being called the prosecutor was again asked to take instructions. He did so but advised the court he was instructed to proceed. The magistrate told him that he sympathised with his position and it was not his fault but that the Court had given every possible indication as to the view taken based on the evidence of the first witness.

6. It is unfortunate that the learned magistrate felt it necessary to again give such a clear expression of his views knowing that the Crown had further witnesses to call.

7. At the conclusion of the evidence in-chief of the remaining prosecution witnesses both respondents were told by the Court that they should ask no questions in cross-examination. The magistrate then ruled there was no case to answer and awarded costs of $2,000 against the Crown.

8. I record my recognition of the fact that magistrates conducting trials involving unrepresented defendants must be accorded considerable flexibility in the manner in which they intervene to advise and generally protect the interests of such defendants but such intervention must be contained within certain bounds and must not be at the risk of preventing a full and fair hearing of the Crown's case.

9. I am not satisfied that the Crown was afforded a full and fair hearing in this case. The magistrate's instruction to the second respondent to enter a plea of not guilty was motivated solely, in my view, by the prosecutor's instructions to proceed with the trial when the magistrate had earlier formed and declared his preconceived view that the matter was a civil rather than a criminal matter. This is not a proper ground for instructing a party to change his plea and my answer to the first question of law posed is in the affirmative.

10. As to whether the trial magistrate erred in instructing the respondents not to ask questions by way of cross-examination has to be considered within the particular circumstances of this hearing. Clearly he had made up his mind at a very early stage and it seems that the advice to the respondents not to cross-examine was just a further indication of his prejudgement and as such cannot be a proper course to take and I answer that question accordingly.

11. Having found that the Crown were deprived of a fair and full hearing the case will be remitted back to be re-tried before another magistrate and the order awarding costs against the Crown will be quashed.