ATTORNEY GENERAL v. LI HOK TING

Headnote

                    Crown counsel absent on date of hearing - defence solicitor and instructing officer of Crown counsel request to see Judge in chambers - Judge agreed to adjourn case - Judge found both defence solicitor and Crown counsel absent in open court - charge dismissed and accused acquitted.

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JUDGMENT

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Li, V.-P.:

1. This is an appeal by way of case stated on behalf of the Attorney General against the respondent LI Hok-ting. The circumstances giving rise to this application were that on the 10th day of June 1985 a charge was preferred by the Attorney General against the respondent LI Hok-tin under section 31 of the Crimes Ordinance alleging that at a previous trial on the 13th of December 1984 in which the respondent, being called as a witness, willfully made false statements material in the said trial. The case was set down to be heard on the 10th of June 1985. At 10.30 a.m. no one appeared except the defence solicitor, Mr. Shuen, for the respondent and an officer of the Independent Commission Against Corruption. They asked to see the judge in chambers instead of in open court. The officer explained that Crown counsel had been instructed in the case and that although he, the officer of ICAC, tried to contact Crown counsel since 9.50 a.m. he had failed to contact the Crown counsel. At that stage defence solicitor and the officer informed the judge that the case would take only half a day. Upon such information the judge indicated that he would agree to adjourn the case until 2.30 p.m. of the same day. However, at 10.40 the same morning the judge went back to court. By that time both Mr. Shuen and the officer had left the court building. The only person who remained in court was the respondent. The respondent indicated that he would maintain his plea of not guilty. The judge, finding that the Crown did not appear and the respondent was unrepresented, dismissed the charge for want of prosecution and acquitted the respondent.

2. The question on this appeal was whether the magistrate properly exercised his discretion in dismissing the charge and acquitting the respondent in such circumstances.

3. Learned counsel for the Crown contended that the judge had already acceded to an application in chambers in the presence of defence solicitors who raised no objection. The representative of the Crown was not there. The ICAC officer was not a legally qualified person and therefore not familiar with legal procedure. To strengthen the argument counsel contended even if the defence solicitor had misunderstood the judge and had left the court by 10.40 that morning. The judge already knew that the defence had no objection to the trial. There was therefore no prejudice to anybody including the respondent.

4. It was further argued that the judge knew of the failure of communication between the ICAC officer and Crown counsel on the day of trial. In dismissing the case and acquitting the respondent, the judge was acting too hastily. In support of the argument the case of IP Chong-kwan & Others v. The Attorney General ⁽¹⁾ was cited. In that case the prosecution had called witnesses up to a stage at 4.20 p.m. Other witnesses had not been warned to attend. Counsel for the prosecution asked for an adjournment because it was only 10 minutes before the court was due to rise. The judge refused to adjourn the proceedings. Thereupon defence counsel submitted there was no case to answer on the evidence so far before the court. The court sat again the following morning and prosecuting counsel in reply to the submission of no case to answer indicated that he could not advance the Crown's case any further on the prosecution evidence then available. On that basis the judge dismissed the charge and acquitted the respondents. The Attorney General appealed by way of case stated. Having heard arguments Huggins, J. (as he then was) said at page 143:

"I think that the learned judge was wrong and that injustice did result from the course which he took. Justice must be done to the Crown as well as to the defence, although there is no doubt that the court will scrutinize the proceedings with particular care where the defendant may be prejudiced: but justice must be done to both sides. In my judgment justice was not done here and the appeal must be allowed."

The judge in that case gave reasons that it was unfair to the accused that they had this charge looming over their heads for such a long time. This court held that it was not a good enough reason for refusing an adjournment despite the fact that an application was made 10 minutes before the court would have risen on that particular day.

5. Coming back to this case counsel for the respondent submitted that the case stated in this instance is not satisfactory because no reason had been stated why Crown counsel did not appear ands the judge did not know of the reasons for his absence. There was no reason given by the judge why he dismissed the case.

6. A further argument was that what transpired in the judge's chambers was not an application at all. Nor did the defence solicitor agree to an adjournment. The judge was therefore correct in dismissing the charge and acquitting the respondent.

7. We feel that despite the argument by counsel for the respondent the judge had wrongly exercised his discretion. In chambers he was told the reason for Crown counsel's absence and at 10.30 a.m. he indicated that he would agree to adjourn the case to 2.30 in the afternoon. He knew that the case would take only half a day. Nevertheless he dismissed the charge and acquitted the respondent for want of prosecution.

8. In our view the mistake was to hold a conference in the judge's chambers. In a criminal trial everything should be done in open court. The proper procedure would be, if Crown counsel were absent for the ICAC officer to inform solicitor for the defence (who was present in court) to explain the circumstances to the judge in open court at the appointed time, i.e. at 10 o'clock and not 10.30 and certainly not in chambers. It is for the solicitor for the defence to decide whether to take advantage of the circumstances to apply for the defendent to be discharged for want of prosecution or to apply for an adjournment until 2.30 p.m. Unfortunately that was not done. In the event, regardless of where the exchange to place, we found it surprising that on the appointed day, namely the 10th of June at the time set down for hearing being 10 o'clock, Crown counsel should not be present. At least Mr. Shuen, the solicitor presented himself in court at the appropriate time. As we said we felt that the judge acted too hastily in dismissing the charge, even though his agreement with the parties to adjourn to 2.30 P.m. was informal.

9. For these reasons we allow the appeal and answer the question in the negative. We will remit the case to the District Court for a hearing de novo before another judge.

(1)    1979 H.K.L.R. 141