ATTORNEY GENERAL v. PHUNG VAN TOAN AND OTHERS

Headnote

Application for discharge: paper committals: principles applicable: s.16 Criminal Procedure Ordinance, Cap. 221: s.80B et. seq. Magistrates Ordinance, Cap. 227

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J U D G M E N T

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Silke, V.-P.:

1. This is the judgment of the court.

2. On 31st March 1990 an incident, to use a neutral term, took place at Section 1 of the Whitehead Detention Centre in Shatin which involved two feuding groups of the Vietnamese detained there. There was evidence - subject to the arguments we have heard as to whether that evidence should or could have been properly before the committal court - that a large group of Vietnamese attacked one of the huts and in the course of that attack Tran Quoc Thuy was killed.

3. The seven respondents now before us having first been charged with riot were subsequently charged with murder. By use of the provisions of section 80B of the Magistrates Ordinance, Cap. 227, committal papers were placed before the committal magistrate. The respondents elected, and they were represented, not to have a preliminary enquiry and the committal was - and we shall use the term from now on - a "paper committal". The proceedings in respect of respondents 1 to 6 took place on 18th July and that in respect of respondent 7 on 26th September 1990. They were committed for trial.

4. The indictment concerning respondents 1 to 6 was filed on 10th August 1990, not within the 7 days contemplated in section 14(1) of the Criminal Procedure Ordinance, Cap. 221 but no point is being taken on this, and that in respect of respondent 7 was consolidated in the indictment of respondents 1 - 6 by order of Ryan, J. on 14th November 1990. Again no point is taken on this.

5. The respondents, having had the advantage of the assistance of the Director of Legal Aid throughout, applied as was their right to be discharged, relying on the provisions of s.16 of the Criminal Procedure Ordinance, on the grounds that the evidence disclosed in the documents handed to the court under section 80C(1) of the Magistrates Ordinance were insufficient to establish a prima facie case against them.

6. To complete: the application in respect of respondents 1 to 6 was filed on 11th November 1990 - No. 11/90 - and that in respect of respondent 7 was filed on 14th December 1990 - No.13/90. On 8th January 1991 the hearing of the combined applications for discharge came on before Sears J. After a number of adjournments, to which we shall refer in due course, the judge delivered his judgment on 4th February 1991 discharging the respondents.

7. That discharge by virtue of the provisions of section 16(4) of the Criminal Procedure Ordinance amounted to an acquittal.

8. The proceeding before us is an appeal by the Attorney General against the order of discharge and is brought under the provisions of section 81E of the Criminal Procedure Ordinance. Subsection (2) of section 81E reads:

"(2) The appeal may be -

(a) on any ground which involves a question of law;

(b) on the ground that the documents and evidence before the court were sufficient to establish a prima facie case against the accused for the offence set out in the charge or for any other offence for which he might be convicted upon that charge."

9. If this court be minded to allow the appeal then it may quash the acquittals and order one or all of the respondents to be tried.

10. Briefly, the evidence upon which the Crown sought to base their prima facie case came from Madam Tran, the wife of the deceased. She, having at first denied her ability to do so, at a series of identification parades identified various people as being participants in the killing of her husband. That evidence was supported, peripherally, by other Vietnamese witnesses who spoke not to the actual killing but to the presence of the various respondents in the attacking group.

11. The identification evidence of Madam Tran was to be supplemented by the evidence of the officer in charge of the identification parades whose native language was English and who had no understanding of Vietnamese. His statement indicated the nature of the parades, the attendance upon them and the actions of Madam Tran - and of other witnesses - in the course of them. He also made reference to statements made by Madam Tran which, of course, only came to his knowledge through the aid of an interpreter and, at one parade at least, through the aid of double interpretation.

12. It was not alleged that respondent 2, Tran Dinh Qui, had participated in the actual killing but that he was guilty of murder on the basis of counselling and procuring. There was evidence that he was heard to issue commands and that, while speaking, he carried a weapon and a loud hailer. He urged others of the Hoi Pong To Shan group to hit the people of hut B and to tell the women and juveniles of hut B to come out as they wanted to hit the men inside hut 4B to death (per witness Le Si Toan) or, again, was described as holding a pointed iron bar in one hand and a loud speaker in the other shouting 'kill all the Hoi Pong guys" (per witness Bui Van Qua) or again, shouting "brothers, join together and prepared to break into the hut and kill all the Hoi Pong guys" (per witness Madam Tran Thi Hanh). It was unclear as to the time which had elapsed between these exhortations and the killing of the deceased.

13. To understand the issues which lay for consideration of the hearing judge it is necessary first to consider the provisions of section 80B of the Magistrates Ordinance Cap. 227; then section 16 of the Criminal Procedure Ordinance and finally section 81A of the Magistrates Ordinance.

The Committal

14. A return day was appointed in accordance with the provisions of section 80A of the Magistrates Ordinance.

15. It was the duty of the magistrate, and it is not suggested that he failed in any way in this, to, inter alia, inform the accused of his right to apply for legal aid, of the latest time prior to the return day when he will receive the copy of the complaint or information and the copies of witness statements and documentary exhibits. These are intended to be the statements and evidence upon which the prosecution will seek the committal of the accused. Then to inform the accused - and these have importance here - [s.80A(4) (c)] that:

"(c) on the return day, he will have the right to require a preliminary inquiry and, if he does so require, he may, at the inquiry, call witnesses to give evidence on his behalf."

and [s.80A(4) (e)]:

(e) if he does not require a preliminary inquiry, he will be committed for trial without an inquiry unless he pleads guilty to the charge, in which case he will be committed for sentence on that charge."

16. Here the respondents did not require a preliminary inquiry.

17. The latest period for the service of statements and documentary exhibits is at least 7 clear days, unless that period be shortened by consent, before the return day. That which the prosecutor must serve on the accused at that time is set out in section 80B subsection(1) (a), (b), (c) and (d) of the Magistrates Ordinance. Subsection (1) (b) refers to:

"copies of the statements of those witnesses whom the prosecution intends to call at the trial."

Subsection (2) of section 80B requires that the statement or statements referred to in subsection (1) (b) are:

"(a) signed by the person who made it;

(b) contain a declaration by the witness to the effect that it is true to the best of his knowledge and belief and that he made the statement knowing that wilfully making a statement which he knows to be false or does not believe to be true may render him liable to prosecution for a criminal offence;

(c) if in a language other than English, be accompanied by an English translation and, if in a language other than Chinese, be accompanied by a Chinese translation;

(d) if made by a person under 21, give his age;

(e) purport to have been read over to the person who made the statement in the language used by that person in making the statement or to have been read by that person."

18. We note, and will refer to it later, the provisions of subsection(5) of section 80B which reads:

"Failure to comply with the requirements of subsections (2), (3) and (4) shall not render the service of any documents under subsection (1) ineffective or prevent such documents being handed into court under the provisions of section 80C(1) or admitted in evidence under the provisions of section 81A(1) provided that the magistrate is satisfied that (sic) accused is not prejudiced by such failure."

19. When an accused is brought up on the return day, the procedure to be followed is set out in section 80C. If the copies of the witnesses statements and the copies of the complaint made or information laid have been served upon the accused, the prosecutor then hands into court the original of the documents and the accused is informed that the prosecutor seeks his committal and, again, that, unless the accused elects to have the charge heard at a preliminary inquiry, the accused will be committed without such an inquiry. The accused, having indicated their election the magistrate, is, under the provisions of subsection (3) of section 80C, required first to inform the accused that he is not obliged to say anything but that if he pleaded he would be committed for sentence; second, that unless he pleaded to the court he would forthwith be committed for trial on the charge without an inquiry; third, of his right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him. This was done in respect of the respondents here.

20. It came as somewhat of a surprise to the members of this court that the provisions, to which we have just referred, appear to remove from the magistrate any duty to read the papers before him or any discretion to refuse to commit.

21. The scheme of the paper committal in Hong Kong differs from that in the United Kingdom. There section 6(2) of the Magistrates Court Act of 1980, as amended by the Criminal Justice Act of 1982, provides that where written statements are tendered, a magistrates court inquiring into the offence may commit a defendant for trial without consideration of those statements unless: (a) one of the defendants has no solicitor or (b) the counsel or solicitor acting for one of the defendants requests the court to consider his submissions that the statements disclose insufficient evidence to put the defendant on trial by jury for the offence. Our procedure does, however, seem to be in similar terms to that used in New Zealand.

22. It is important to note that it is no longer Mr. McCoy's case that Madam Tran's statement, combined with the statement relevant to the identification parades, if both were properly before the court, were insufficient to identify the respondents in the dock with the persons she identified as being participants in the killing - or in the case of respondent 2 as being a counsellor or procurer. Therefore on the merits a prima facie case was disclosed.

23. Under the provisions of section 81A the witness statement - and the expression "handed into court" is used as it is in section 80C(1) - shall be deemed to have been admitted in evidence on behalf of the prosecution notwithstanding that the person who made that statement is not called to give oral evidence at the hearing unless the accused objects to the admissibility of the statement or any part of the statement and the magistrate after hearing any reply the prosecutor may see fit to make allows the objection. Here no objection was taken to admissibility. That was left until later.

Application for discharge

24. Under the provisions of s.16 of the Criminal Procedure Ordinance a judge may (ss.(3(1)), after a perusal of "the documents" and having heard representations, direct that an accused should not be arraigned on the charge and further direct that he be discharged. The expression "the documents" can only mean the documents handed to the court under the provisions of s.80(c) (1) of the Magistrates Ordinance to which we have already referred. It is upon these that an accused contends an insufficiency to establish a prima facie case thus triggering off the application under s.16. But s.16(1) also contains the important proviso that "the documents" are to be read "with any further evidence the Attorney General has notified the accused he will seek to have admitted at the trial".

25. For the sake of completeness: we are aware of the Criminal Procedure (Appeal Against Discharge) Rules, contained at page F1 of the Criminal Procedure Ordinance, which have all been complied with in these proceedings. We note the prohibition against publication of names by the media a prohibition which we have not lifted.

26. The application to discharge when it first came before Sears J. was based only on the admitted absence, among "the documents", of any statement by any of the interpreters who acted in that capacity on the identification parades. In the course of the hearing this was expanded first to allege that, as there was no statement in Vietnamese of Madam Tran there was a breach of the provisions of subsection (2) of section 80B - its absence is also accepted: and second, although it did not attract submissions in depth, to allege that, accepting for the purpose of argument that the other deficiencies did not exist, there was insufficient evidence to establish a prima facie case of murder in respect of respondent 2 - the counsellor and procurer - on the merits.

27. During one of the adjournments of the hearing before Sears J. the Crown sought to remedy the alleged deficiency in relation to the statement of Madam Tran. They served on the court, and on the Director of Legal Aid on behalf of the respondents, a document which stated "Take notice that the following additional evidence will be adduced against you upon your trial in one count of murder (1) the evidence of Tran Thi Hanh." There were then attached various statements in Vietnamese with translations. They further sought to remedy the absence of the interpreters statements serving another document entitled "Notice of Motion". This asked for leave to make further submissions and to cite additional authorities and for leave to submit that, the interpreter's evidence in respect of the identification parades and in respect of cautioned statements having been inadvertently omitted, the court had a discretion to admit further evidence "after the close of the prosecution's case". This further evidence related to the statement of Wan Tai Hung, one of the interpreters who was used but not to those of all the interpreters.

28. The hearing judge refused to consider the additional evidence holding that there must be a cut off point for the introduction by the Attorney General of additional evidence. He treated that cut off point as being the time of the filing of the application for discharge. He held himself to be without jurisdiction to accept as being properly "the documents" the additional evidence the Attorney General, in a somewhat round about way, indicated that he would seek to have admitted at trial.

29. These proceedings, if they do nothing else, do emphasise the care and accuracy essential to the preparation by the Crown of the "documents handed into court". Regrettably that care - and indeed Mr. Bruce, who was not concerned with the committal matters, accepts this to be so - is here conspicuous by its absence.

30. Mr. McCoy has submitted to us that, even if we were to think that the judge took too strict a view in applying the guillotine at the point he took as decisive, this additional evidence was, in any event, too late for either it should have been introduced after the filing of the indictment and before the hearing of the s.16 application which it was not or, the very latest of all, at the time the hearing of that application began.

The issues

31. The first general issue with which we shall deal is whether there was or was not compliance with the provisions of section 80B(2) in respect of Madam Tran's statement. The second the absence of the interpretation statements.

32. It must be borne in mind overall that the purpose of a committal is to see if there is, on the merits, sufficient evidence to establish a prima facie case against the accused in respect of the offence charged. Further that if an accused elects to have "a paper committal" and raises no objections at that time - and this appears to be the rationale behind the procedure - the magistrate is entitled to accept, on the face of the "documents handed into court", that there is such a case against an accused.

33. We accept that to ground a prima facie case the documents must contain admissible evidence and conform with the requirements of the applicable Ordinances. We are not here directly - other than in respect of respondent 2 - concerned with the test to be applied to the concept of prima facie case but we would fully adopt the test referred to in the Attorney General v. Li Fook Shiu Criminal Appeal No. 3 of 1990 (not as yet reported) where the Attorney General sought to appeal against a successful application for discharge in proceedings concerning the Complex Commercial Crime Ordinance, Cap. 294. Kempster, J.A., in delivering the judgment of the court, having considered the authorities including R. v. Galbraith [1981] 1 WLR 1039, A.G. v. Yau Ka Ping [1977] HKLR 76 and A.G. v. Li Nai Ho and Ors [1980] HKLR 792 said of the judge hearing such an application:

"In relation equally to primary facts and to inferences to be drawn from such facts his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are 'matters generally speaking within the province of the jury' in the language of Galbraith. Both can critically be affected by later evidence of lack of evidence from the defence. Assuming all proper directions the test is not what the judge thinks the jury, and still less he, 'must' conclude at that moment: but what a jury 'could, may or might' properly conclude in the future."

34. At the time of this type of application no word of oral evidence has yet been heard. A court faced with such an application is not enjoined to consider the quality of the evidence. To do so would be to usurp the function of the jury.

The first issue

35. If the statement of a witness is in Chinese language then it must be accompanied by an English translation. If it is in the English language then it must be accompanied by a Chinese translation. That is quite simple and straight forward and of course the majority of witnesses who appear in these courts predominantly speak Chinese. Some speak English. It is where the witness is conversant only with a language other than Chinese or English that difficulties arise. It is Mr. Bruce's contention that here there was sufficient compliance with the provisions of the section though he accepts that the better practice is that the witness statement should be recorded, whatever translation of it then become necessary, in the language spoken by the witness: be it Urdu, Malay or Vietnamese it does not matter. He further submits that once there is an endorsement upon the witness statement that it has either been read over to that witness in the language which he used or, alternatively, to have been read over by the witness himself - and this last must mean that the statement is in the same language as the witness speaks - then the provisions are satisfied.

36. The provisions of section 81 of the Magistrates Ordinance, which relate to the taking of the evidence of witnesses at a preliminary enquiry, requires the magistrate to take the evidence of the complainant or the informant and its witnesses in the same way as is provided for the taking of the evidence of a complaint or information for an offence punishable on summary conviction. Sections 19 and 34 of the Magistrates Ordinance makes provision for the proceedings at such a hearing and the recording of the evidence.

37. The depositions (or evidence of the prosecutor and its witnesses) must, in the presence of the accused, be read over to and signed by the witness. The magistrate also signs. It is open to the magistrate to have the depositions or evidence of a witness recorded by way of shorthand note or by mechanical or electrical recording device and thereafter to have it reduced to writing provided that the writing is made available to the accused or his counsel and that the witness on oath and in the presence of the accused confirms the accuracy of that writing. It is then treated for all purposes as if it had been reduced into writing immediately, read over to the witness and signed by him in the presence of the accused. And that becomes the deposition at trial.

38. The provisions of section 80B, presumably because the matter is a paper committal, appear more stringent than those relating to the taking of depositions in a preliminary enquiry. If a witness makes a statement in a language other than English or in a language other than Chinese then there must be the appropriate translations. But these are translations of the original statement. And the translations of themselves cannot be the witness' statement. We suspect that, when these provisions were drafted perhaps less thought was given to the non-Chinese and non-English speaking witness than that situation requires. There can be no doubt that the practice which we are told is now in force is not only the better one but also the right one in law. How can a witness read over to himself a statement which is not in the language which he understands. How can he be sure, the translation having been read over to him, that his words are accurately recorded? Any other practice could give rise to interminable conflicts at trial as between the oral evidence he gives and his proof of evidence - or deposition.

39. It has never been the respondents' suggestion that they were in any way prejudiced by any deficiency in statements of Madam Tran. As we have indicated no such matter was brought to the attention of the committal magistrate and indeed Mr. McCoy does not seek to rely on prejudice here. That being so, the provisions of subsection (5) of s.80B to which we have already referred would, despite the deficiency which we find to exist, have permitted the documents as they stood to be handed into the court and admitted into evidence, as indeed they were. Deficiencies of this nature are curable. After our consideration of the absence of the interpreter's statement, we will then go on to consider when and if such technical deficiencies can be remedied.

The second issue

40. We have no doubt that an edited version - leaving out Madam Tran's words amoungst other things - of the statement of the officer in charge of the parade could still be introduced into evidence at trial. But that would leave the Crown and here the defence, for it is suggested that part of the parades were conducted improperly - which when it came to trial would be a matter of the weight to be placed upon that which occurred on those parades - in difficulties in making their case.

41. In R. v. Attard (1958) 43 Cr App R 90 the prosecution proposed to call evidence by a police officer of an interview which he had conducted with Attard, a Maltese, through an interpreter. It was submitted that, since neither the police officer nor Attard could understand what the interpreter said one to the other, the evidence of the police officer was inadmissible as being hearsay and that only the interpreter could give evidence of the questions which he put to the prisoner on behalf of the police officer and of the answers given to him by the prisoner in the prisoner's own language. That situation is clearly analogous to the position here where the officer in charge of the parade could not understand the language of Madam Tran nor could Madam Tran understand him. The interpreter, or in certain cases interpreters, were necessary as communicators. The trial judge in Attard, Gorman J., held the submission to be good although it was not a point which had ever been raised before. He held that the evidence ought not to be given through the mouth of the detective superintendent in the witness box.

42. As a result the Home Office in the United Kingdom issued a circular letter advising Chief Officers of police to ensure in future cases that the interpreter is available to give evidence as to oral statements made by an accused as is already done in the case of written statements.

43. Attard, though a ruling by a single judge in the course of a trial, has stood the test of time and has been obliquely approved in this jurisdiction in R. v. Ip Chiu Cr App 99/1977 (unreported). Its principle was accepted in R. v. Li Kin Wai Mag App 102/1985 (unreported) and expressly followed in R. v. Tam Kwok Yeung Mag App 926/1988 (unreported). We also note Gaio v. The Queen [1960] 104 CLR 419 (High Court of Australia).

44. It is clear law, and in our view, law which has been and should be followed, and if the services of an interpreter are used in circumstances such as here then that interpreter is a necessary witness - even if it is only to say that he well and faithfully interpreted the speech of one to another and vice versa. Otherwise there is danger of contravening the hearsay rule. Certainly evidence in some form from the various interpreters used would here be a pre-requisite to the Crown's leading evidence of that which those who spoke only in Vietnamese said to those who did not understand that language and vice versa. This, as we have indicated, not only to assist the presentation of the Crown's case but also in fairness and in justice to the defence.

45. The result of that which we have said is to render the deficient witness statement of Madam Tran a technical breach of section 80B(2) (c). That breach could be cured. What was before the court was admissible evidence. It was incumbent upon the Crown to ensure, and this the more important issue, that the evidence of the interpreters used was before the court. "The documents" were deficient in that respect.

46. If the Crown desires, and as we have indicated clearly they should so desire, to have the whole of the statement of the officer in charge of the identification parades in evidence and if they desire to have the conduct of those parades, as indeed they should so desire, placed under scrutiny then the statements of the interpreters should have been in "the documents" and their evidence called in the course of a trial.

47. Given that the hearing judge was entitled to look at "the documents handed into court", with the extension of that phrase as provided for by s.16(1) Criminal Procedure Ordinance, then it must be on that overall view that he reaches his decision. Here, albeit at the 50th minute of the 11th hour, the Attorney General saw fit to indicate the further evidence he would seek to lead at trial. Though we accept that, on the interpreters, even then there were deficiencies uncured. However the edited statement was, attached to the evidence of Madam Tran, sufficient on the merits to show a prima facie face.

48. Generally, notice of additional evidence can be given up to and during a trial. Mr. McCoy, and this is a submission which appears to have attracted the trial judge, said that here the Crown was attempting to re-open the prosecution case as he put it "in a capital case after the Crown's case is closed." He further submitted to the hearing judge that:

"Now, the stress and thrust of section 16(1) is that the Attorney General must notify during the period after which the application for discharge has been filed and when it comes on for hearing he has no opportunity to patch up his case as holes appear in it."

If requirements on the hearing judge are as we have indicated above then, with respect to Mr. McCoy, the case for the prosecution is not in any technical, or indeed any real sense, closed at the time of the application for discharge.

49. Here, the Crown got, by force of circumstances, an adjournment. It is our view that, had they applied for an adjournment to remedy the "holes" in their case they should have been afforded one. We do not think it necessary to go into the authorities such as Francis [1990] 1 WLR 1264 on the discretion of the court to permit the Crown to re-open its case at trial after it has closed as we do not think the analogy to be a true one - though in exceptional cases there is such a power.

50. The Attorney General can seek to mend his fences and provided that, with those repairs having taken place, there is then a prima facie case on the merits as disclosed by admissible evidence, the application for discharge should not succeed. To take the view as did the hearing judge here that everything becomes solidified the moment an application for discharge is made is, in our view, too restrictive.

51. We can fully appreciate why the judge took the view he did in view of the disarray which was apparent in the case for the prosecution. Mr. Bruce has accepted that the Crown's conduct was such as to stretch judicial tolerance to its limits. But it must be borne in mind that the Crown, as the representative of the public at large, is as equally entitled to consideration as is the accused. Both to the careful scrutiny necessary to ensure that rights are protected, and that the law is not set at nought.

52. To place a restriction upon the right given to the Attorney General to notify additional evidence at any time up to the point when a judge puts pen to paper to render his decision - in particular where the remedy the Attorney General seeks is to overcome technical difficulties - would in our view be wrong. That is the cut off point. When the application for discharge itself is truly closed, that is when all the submissions have been made and all "the documents" put before the hearing judge, it is then that the guillotine comes down and it is then that the hearing judge has to decide on the papers before him whether there is or is not a prima facie case emerging from that material. This is not to provide a licence to the Crown to produce ill prepared paper committals. Adjournments are always at the discretion of the court and ill prepared papers can place the Crown in a hazardous position.

53. Now to turn to the final point in this appeal and that is the position of respondent 2.

54. The evidence relating to him as a counsellor and procurer was in our view sufficient to raise a prima facie case. The quality of that evidence does not lie for our consideration but will be a matter for the jury at trial. On the face of it he was, to put it at its lowest, involved in an armed group which perpetrated an attack from which death of the deceased resulted. He was armed and used words of encouragement.

55. As we have indicated the test is not what we ourselves would think a jury must do but what looking at the evidence a jury might do.

56. In the event, we would allow the Attorney General's appeal, set aside the acquittals and direct that the respondents be tried.