HKSAR v. YIU CHONG TAK

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1059 OF 1998

(On Appeal from SPC 5385 of 1998)

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J U D G M E N T

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1. I dismissed the appeal of the Appellant on 11th December 1998. I said I was going to give reasons later. This I now do.

2. The Defendant was charged with possession of dutiable goods contrary to S.17(6) as read with S.46(3) of the Dutiable Commodities Ordinance Cap. 109, Laws of Hong Kong. The particulars of the offence alleged that the Appellant on 27th June 1998 outsided Exit A, Wong Tai Sin MTR station, Wong Tai Sin, Kowloon, he had in possession dutiable goods, namely 11,400 pieces of cigarettes otherwise than in accordance with the provisions of para. A or B of S.17(6) of the Dutiable Commodities Ordinance.

3. The case for the prosecution. Only one witness was called by the prosecution. From the dialogue between the bench and the bar, it appeared that the prosecution had in possession certain cautioned statements but it was indicated that they did not seek to put in the cautioned statements. PW1, a police officer, gave evidence to the effect that on the day in question at about 10.28 p.m., he was on uniform patrol, he walked to the Exit A1 of the MTR station and saw the Defendant with 2 cartons, exhibit P1 before him. He further saw the Defendant open the carton and put his hand inside. He then questioned the Defendant. The Defendant then said: "Ah Sir, give me a chance." It was then found out that there were cigarettes of many different brand names, the duties of which had not been paid. These cigarettes were placed inside the 2 cartons. PW1 then cautioned the Defendant. The Defendant said under caution: "Ah Sir, I just open that stall, I not yet sell any of these cigarettes, please give me a chance." That in short was the prosecution's case.

4. The case for the defence. The Appellant elected to give evidence in addition he called a witness. In short, his evidence was that he did not have the cartons in front of him. The cartons were found by the police on the other side of a wall nearby where the Appellant had been standing. The contents of the cartons were not his, nor did he make any admission. The defence witness who was a security guard of the MTR confirmed the Appellant's version in a material way.

5. The trial was a short one. It started at 12.23 p.m. and ended at 4.30 p.m. The learned Magistrate rejected the evidence of the Appellant as being unconvincing and lacking any ring of truth. He, likewise, rejected the defence witness' evidence for the same reasons. As for the prosecution witness, the Magistrate's finding was he gave his evidence clearly, truthfully and reliably. Many grounds of appeal had been lodged and sought to be relied upon by counsel for the Appellant.

6. The first ground was the learned Magistrate erred in rejecting the evidence of the Appellant and his witness. I am of the view that the case for the prosecution and the case for the defence are on the evidence diametrically opposed to each other. The acceptance of one must lead to the rejection of the other. I see no merit at all in this ground of appeal.

7. In the second ground of appeal, it is said that the learned Magistrate's understanding and evaluation of the Appellant's evidence appeared to be hasty, prejudicial and misconceived. Counsel for the Appellant who also appeared in the trial further criticised that the learned Magistrate has been hasty and prejudicial in the course of the trial. These are very serious criticisms that could possibly be levelled against a professional tribunal, and yet counsel could not refer me to any passage in the transcript suggesting that such was the conduct of the learned Magistrate. On a careful perusal of the transcript, the learned Magistrate did not intervene in the cross-examination of PW1, nor did he intervene defence counsel in the examination in chief of both the Appellant and his defence witness.

8. I further note that the learned Magistrate did not in any way seek to interrupt defence counsel when she was addressing the court in her closing speech. There is no merit in the second ground of appeal as well.

9. In the third ground of appeal, and I quote:

"There was a material irregularity in the conduct of the trial in that the learned Magistrate directed and coached the prosecutor, to put this case when the latter had finished his cross-examination of the Appellant's witness. The learned Magistrate thereby entered into the areana."

10. In order to understand this ground better, one has to look at the alleged coaching in its proper context. The prosecutor indicated to the learned Magistrate that he had no further question for the defence witness.

And the court then said: "I think you will need to put the prosecution's case, Mr. Wong."

Mr. Wong: "Yes, I will. For the whole case you mean, your worship."

Court: "You will need to put to him the essence of the prosecution's case, namely that when the police officers ran up to Defendant, the carton boxes were next to him, that's what PW1 says."

Mr. Wong: "Yes, Yes, your worship."

Court: "You have to put that to him and that they were not taken from behind the wall which is his evidence. You see, you must put the prosecution's case."

11. In my judgment, what the learned Magistrate did was to direct the prosecutor's attention to the issues that were before the tribunal. A similar, albeit not identical complaint was considered by Yeung J. in the case of HKSAR v. Ng See Man Michael [1997] 2 HKC, p.570. There, the learned Magistrate was criticised for having entered the areana by putting the prosecution's case to the Appellant during his cross-examination.

12. The text that was adopted by Yeung J. was

"to ensure a trial proceeded smoothly, sometimes a Magistrate had to intervene by putting questions to witnesses including the accused. Such interventions would not render a conviction unsafe and unsatisfactory unless the Magistrate's intervention was such that it would have caused an informed by stander to say that the accused had not been given a fair trial".

I respectfully adopt the text in Ng See Man Michael. The alleged coaching when understood properly would not have caused an informed bystander to say that the accused had not been given a fair trial.

13. I tend to share the sentiments expressed by Yeung J., when he said at p.572 of the judgment:

"While the learned Magistrate could have been more patient and that he should not have usurped the function of the prosecutor as such, but it was perhaps sometimes not difficult to understand the anxiety of a busy magistrate in Hong Kong. When the prosecutor was perhaps not functioning as efficiently as one would hope, particularly on formal matters such as to putting of the prosecution's case to a defendant when he was being cross-examined."

There is again no merit in the third ground of appeal.

14. For the reasons that I have given, this appeal must be dismissed.