HKSAR v. LI CHI SHING

HCMA 663/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 663 OF 1999

(ON APPEAL FROM NKS 900058 OF 1998)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy on a summons laid under sections 9 and 31 of the Telecommunication Ordinance, Cap. 106 and section 159G of the Crimes Ordinance, Cap. 200. The particulars were that on 26 June 1998 at the Luggage Transportation Office of Chu Kong Passenger Transport Company Limited, China Ferry Terminal, Kowloon the Appellant did attempt to export from Hong Kong apparatus for transmission by radio waves, namely 1297 sets of mobile phone, otherwise than under a permit granted by the Telecommunications Authority. The Appellant was fined $2,000.00 and the phones were ordered to be forfeited.

2. The main ground of appeal was that there was a material irregularity in the trial as the Magistrate failed sufficiently, or at all, to consider an application to stay the proceedings and thereby erred in not exercising her discretion to stay. It was submitted there was no good reason or justification for the Magistrate to depart from the principles in Connelly v. DPP [1964] 2 All ER 401 and that the Magistrate failed to give any reasons for refusing the stay.

3. Grounds (2), (3), (4), (5) and (6) related to complaints that the Magistrate erred in constructing S.9 as an offence of strict liability and failed to consider various aspects of the evidence, but I do not consider any of those grounds were substantiated. A further ground (Ground 8) was that the Magistrate failed to consider the effect of Section 159H of the Crimes Ordinance and wrongly concluded that she had jurisdiction to entertain an application for forfeiture of the mobile telephones and that she erred (Grounds 9,10) in allowing the prosecution to adduce fresh evidence in the forfeiture proceedings. I am quite satisfied that the Magistrate had the power to make the forfeiture order and that she correctly allowed the prosecution to call evidence relating to the functioning of the mobile phones on the forfeiture proceedings.

4. It is the question of stay that has exercised me in this appeal. To understand why, it is necessary to consider the history of the case. The Appellant was charged first with Attempting to Export Unmanifested Cargo, contrary to section 18(1)(b) of the Import and Export Ordinance, Cap. 60 and section 159G of the Crimes Ordinance, Cap. 200.

5. A Magistrate heard that case, and by reasons dated 25 November 1998, acquitted the Appellant because, in his view, the prosecution had failed to prove that the luggage the Appellant was carrying, the portable telephones, was "cargo" as defined in section 2 of Cap. 60. The present summons under the Telecommunication Ordinance was issued on 20 November 1998, after the trial on the first summons had ended, but before the verdict.

6. The trial on the present summons was fixed initially on 9 February 1999 before the Magistrate who presided at the first trial, but was refixed to 26 March 1999 before another Magistrate.

7. The factual basis upon which the Appellant was prosecuted a second time was exactly the same as that for the original summons. The first trial had proceeded on the basis of Admitted Facts and the same Admitted Facts were used at the second trial. They consisted originally of 9 paragraphs; the only difference was that for the second trial, paragraph 8, relating to whether or not the telephones were fully functional, was deleted.

8. At the second trial, Appellant's counsel applied to stay the proceedings, relying on the principle, propounded in Connelly v. DPP, that the court has a discretion (outside the strict limits of a plea of autrefois acquit or autrefois convict) to stay, and in general should stay, a subsequent indictment containing charges founded on the same facts as those on which a previous indictment is based, or forming, or being part of, a series of offences based, on one incident. The principle is stated in the judgment of Lord Devlin (p. 446 C-E) as follows:

"As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with) when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for the prosecution not to use r. 3 where it can properly be used, but a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a particular case be special circumstances which make it just and convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion whether or not he applies the general rule." (Emphasis supplied)

9. In this case, the prosecution chose to proceed initially under the Import and Export Ordinance rather than proceed under the Telecommunication Ordinance. After the first trial, but before the verdict, the prosecution laid a further information under the Telecommunication Ordinance.

10. There is no doubt that the same facts and the same incident gave rise to both summonses. In the ordinary course the Appellant might have good reason to expect the Magistrate to stay the second summons and order it to remain on file, not to be proceeded with without the leave of the court, unless there existed special circumstances of the type Lord Devlin referred to. The Magistrate might be expected to do this unless there were special circumstances which made it necessary, or imperative, or desirable that the second charge be proceeded with.

11. The stay was argued at length and the relevant authorities were put before the Magistrate. The submission finished on 26 March 1999 and the matter was adjourned to 23 April 1999 for a ruling. At that time, as the transcript shows, the Magistrate said "I now give a brief reason for why this matter should be proceeded with. I have considered the submission by both parties and the authorities referred to by Mr Wong and Miss Lau. I do not consider that this is a case that I should exercise my power to stay the proceeding, i.e. summons NKS 900058/98." Although she began by saying she "gives a brief reason" the Magistrate gave no reasons at all for her ruling. Nor did she expand on those "reasons" at any later time. Thus at no time did she set out the special circumstances which, in her view, made it just and convenient that the second trial proceed.

12. That absence of reasons has made it difficult, if not impossible, for this Court to deal with this appeal. Indeed it has been very difficult for Mr Wong for the Appellant to do other than reiterate the matters that he put before the Magistrate, because it is not known, on what special circumstances the Magistrate was relying to enable her to exercise her discretion in a manner other than as suggested in Connelly.

13. I accept that the Magistrate had a discretion as to whether or not to order a stay. However, given the nature of the arguments, I consider that the Magistrate should have given reasons, however brief, to illuminate, or support, her ruling refusing the stay.

14. Mr Wong, for the Appellant, referred to the case of Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634. There, in a civil trial the judge rejected the Appellant's evidence, entered judgment in favour of the Respondent and dismissed the Appellant's counterclaim without giving particular reasons as to why the evidence had been rejected. On appeal the Court of Appeal stated that "a professional judge was under a duty to analyse in his/her judgment the material points and the evidence of the case and give reasons as to why he/she had reached a particular conclusion or decision. This was the only way to make people understand why their evidence was not accepted by the court and why they lost in a case. Only by this could justice be seen to be done. Furthermore, the losing party had to know clearly whether there was any error in the reasons for the decision given by the court before he could decide whether to appeal or not, and, at a later stage, submit to the Court of Appeal his grounds of appeal in order to seek to set aside the original decision. The duty of a professional judge to give adequate reasons for any decision which he/she had made was a principle of paramount importance in the common law system."

15. Those words can apply equally to criminal cases.

16. Where an important point like this is argued and rejected, the Appellant is entitled to know why it was rejected and what special circumstances enabled the Magistrate to order the case to proceed, when it appears there were strong grounds for ordering a stay. The Appellant needs to know whether there was any error in the reasons for the Magistrate's decision before deciding whether or not to appeal. The appellate court too needs this knowledge otherwise, as happened here, the whole application is argued ab initio and the court is required to second-guess the Magistrate.

17. Here, the facts and the incident underlying both summonses were the same. All that had altered was that the prosecution, at a time when the first trial was completed but awaiting judgment, perhaps nervous they might not obtain a conviction, decided, from an abundance of caution, to lay a second charge under another ordinance. The Appellant was at a disadvantage because his admissions on the original charge were available to be used against him on a rather different charge not within his contemplation at the time the Admitted Facts were agreed.

18. In this case, I do not know what special circumstances the Magistrate considered existed to justify the prosecution proceeding on the second charge and neither I, nor counsel, are in a position to speculate. Given that is the case, I consider that the benefit of the doubts that I have in respect of this stay application be given to the Appellant and, accordingly, I allow the appeal on this point and order that the charge be stayed and the summons lie on the court file.

19. Appellant's counsel suggested in argument that the only reason the second summons was laid was so the prosecution could apply to have the telephones forfeited but, I am satisfied that was not necessary for a forfeiture application to proceed. Irrespective of whether or not the second summons was stayed there were grounds which enabled the Magistrate to order the forfeiture according to Section 36 of the Telecommunications Ordinance. For the avoidance of doubt, I rule that the forfeiture order made by the Magistrate at the end of the trial remains in force. The conditions in section 36 have been fulfilled and the forfeiture is affirmed.

20. I order that the fine imposed on the Appellant be returned to him, if it has already been paid.