THE ATTORNEY GENERAL v. LAU CHI YUNG and Another

IN THE COURT OF APPEAL

1992, No. 526
(Criminal)

HEADNOTE

Case Stated - trial stopped by court before close of prosecution case - whether permissible.

IN THE COURT OF APPEAL

1992, No. 526
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is a case stated.

2. The Respondents Lau and Ying appeared before His Honour Judge Yam on charges of blackmail. Lau faced two charges and Ying only the second charge. The alleged victim was a MA Sze-wah.

3. The Crown opened the case. On the first charge it was stated that at about 3 a.m. on 18 January 1992, whilst Ma was selling newspapers in Jordan Road, Lau went up to him and asked for local bullies' fees, at the same time warning him not to report to the Police, otherwise he would chop him dead. Lau took about $200 from Ma's shoebox. On the second charge, it was stated that at about 3 a.m. on 25 January 1992 Lau and Ying approached Ma at the same location. Whilst Lau spoke, Ying stood beside him and kept silent. Lau asked Ma for $200 and Ma refused. At this juncture, two police officers came by and one of them heard the conversation. Lau and Ying were arrested after enquiries. Upon caution both Lau and Ying made admissions.

4. In the opinion of the trial judge, Ma was a poor witness, and he asked prosecuting counsel to invite him to rule on the case on the basis that even if there were admissible cautioned statements, any confessions therein would not be consistent with what Ma had said in evidence. Counsel however indicated that she wished to proceed until the conclusion of the Crown's case.

5. The learned judge then decided to stop the case, obviously prompted by his desire to do justice to the accused and not to prolong the trial unnecessarily. In his judgment, the evidence of Ma was contrary to his witness statement to the Police and contrary to the case opened by the Crown. Ma, the judge considered, had lost all credibility and his evidence was confused and contradictory: no reasonable jury could convict on his evidence.

6. Having stopped the proceedings, the judge dismissed the charges and acquitted Lau and Ying.

7. The question of law which arises is whether the learned judge had erred in law in stopping the proceedings?

8. Counsel for the Respondents conceded - in our view entirely properly - that he could not resist the Crown's argument that the answer to the question posed must be in the affirmative.

9. The law is clear. In The Queen v. LEE Yung-chi, Magistracy Appeal No 1004 of 1986, Roberts, CJ, said: -

" I need not refer to any authorities for the proposition, which is indeed self-evident, that it is improper for a court to reach a decision as to whether or not there is a case to answer until it has heard the whole of the evidence which the Prosecution wishes to put before it."

10. And this dictum was followed by Garcia, J in The Attorney General v. LAM Yuk-chuen, Magistracy Appeal No 178 of 1987.

11. If any further authority is needed, it can be found in R. v. Grafton [1992] 3 WLR 532, where Taylor, LJ (as he then was), said (at P. 536 G-H): -

" Before the completion of the case for the Crown, the decision whether to continue or not must be that of the prosecution. No doubt the judge, if he does not agree with the course proposed, is fully entitled to convey that to counsel and discuss it in the absence of the jury. One would hope and expect that cases where any disagreement remains after such discussion will be rare. In such a case, however, we can see no way in which the judge could properly continue to call evidence for the Crown consistently with his judicial role."

12. On the authorities the question posed in the Case Stated must be answered in the affirmative. It was not contended that the prosecution's decision to persist with its case in the present instance constituted an abuse of the court's process.

13. Having heard submissions we made the order under S.84(c) (ii) of the District Court Ordinance, Cap. 336, that the trial judge's verdicts be reversed and directed that the Respondents be retried.