ATTORNEY GENERAL v. CHANG HUNG HAU

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HEADNOTE

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                Magistrate - Guilty plea - Non-acceptance of brief facts by magistrate - Dismissal of charge without hearing evidence - Breach of (1) magistrate's duty and (2) rules of natural justice.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 465 OF 1986

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JUDGMENT

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1. On the 20th of February 1986, the respondent appeared at the Magistrate's Court in Causeway Bay on a charge under section 4(1)(a) of the Objectionable Publications Ordinance, Cap. 150, alleging that on the 15th February 1986 at the San San Video Tape Company at 557-559 Nathan Road, 13/F, Block B, Kowloon, he did publish an objectionable article, namely, one video cassette tape marked no. bn2, for gain. He pleaded guilty to the charge following which a brief summary of facts constituting the charge was read out to him. He admitted the facts read out, but the magistrate was not satisfied that those facts disclosed the necessary ingredients to support the charge and he accordingly declined to accept the plea tendered by the respondent. However he forthwith dismissed the charge against the respondent without hearing the appellant or hearing any evidence. An application for a date to be fixed for a review of the magistrate's decision was made on the 4th March 1986 but this application was refused.

2. The matter comes before this Court by way of case stated, and the following two questions are posed by the magistrate:

3. From the brief summary of facts, it was disclosed that after receiving information, P.W.2, a police officer proceeded to the above-mentioned premises posing as a customer and on arrival at about 1505 p.m. on the 15th of February 1986 was greeted by the respondent who then claimed to be the person in charge of the premises.  P.W.2 then paid $20 for admission into the TV Room to watch a pornographic video tape. At 1512 hours a party of police officers executed a search warrant on the premises and after the officer in charge revealed his identity to the respondent, the latter claimed to be the person in charge of the premises. A total of ten customers excluding P.W.2 were found watching the pornographic video tape inside the TV Room. The tape was run through a video cassette recorder and the resultant picture was displayed on a television set to the customers. Certain exhibits were seized including the video cassette tape bn2, the video cassette recorder and the television set and the sum of $280 said to be business money and the $20 admission fee paid by P.W.2 which had been marked previously.

4. The magistrate in his decision states that the said facts failed to support the said charge as it did not indicate that the respondent had himself committed any act or acts towards publishing the tape and that he had therefore not published the said tape within the meaning of section 2(2) of the Objectionable Publications Ordinance, Cap. 150. Section 2(2) of the Ordinance provides -

"For the purposes of this Ordinance, a person publishes an article if he -

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(d)	in the case of an article consisting of or containing matter to be looked at or a sound recording, shows, plays or projects the article to, or for the public or a section of the public."

 

5. The fact that the cassette is an objectionable article under the provisions of the Ordinance does not seem to have been disputed by the magistrate and as to whether there was such an article showed and played to a section of the public is beyond question in view of the fact that P.W.2 paid $20 for admission, he being an ordinary member of the public and so also the other ten customers found in the premises at the material time.

6. The respondent admitted both at the time of P.W.2's admittance into the premises and upon his arrest that he was the person in charge of the premises in which an objectionable article was being shown to the said section of the public to come within the definition of "publication". Unless the machinery which had been utilised to show the objectionable article to the paying customers was stated as a fact to be automatically operated, i.e. without the intervention of any human agency, it was open to the magistrate as any judge of fact, to draw the inference that the necessary operation of the machinery must fall to the respondent, he being the person in charge of the premises and the only person in the premises at the time of the raid, and also when P.W.2 was admitted into the premises. Moreover, nothing appeared in the summary of facts to say that he was not the sole person in charge of the premises.

7. At the very lowest, there was made out a prima facie case against the respondent on those facts. I would also draw attention to section 19(1) of the Magistrates Ordinance where it states as follows :

".....Where the defendant is present at the hearing, the substance of the complaint and the whole of the information shall be read over to him and explained, if necessary and it should be asked whether he admits or denies the truth to the complaint or information. If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him and the magistrate shall convict him or make an order against him accordingly."

8. The practice has grown up through the years for a brief summary of the facts to be submitted to the magistrate, and also read out to the defendant, upon the latter pleading guilty to an offence. This practice is not one which is required by law but it is almost the invariable rule that a brief summary of facts is presented to the magistrate and to the defendant, possibly in order that the magistrate, and this is stated in the case stated, may have such facts to assist him in deciding what sentence to impose on the defendant who has pleaded guilty.

9. However, it is clear from the provisions of section 19 (1) of the Magistrates Ordinance that such a presentation of the summary of facts is not in law required upon a plea of guilty being tendered.

10. In the instant case, it was open to the magistrate on the facts as disclosed in the summary to convict the respondent of the offence. In my opinion, the magistrate was wrong in holding that the brief summary of facts did not support the charge and the answer to the first question is 'no'.

11. Assuming that the magistrate was correct in holding that the brief summary of facts did not support the charge, the reasons set out by him in the case stated, cannot in my view, justify the dismissal of the charge against the respondent without hearing evidence both from the appellant and, from the respondent if the latter wished to call evidence. If the magistrate was not satisfied that the facts did not disclose all the necessary elements of the charge, then the proper course for him to have taken was to record a plea of not guilty for the respondent and then proceed to hear the evidence, or preferably, to fix a date for trial before another magistrate. What happens in other cases as the magistrate sets down as his reasons does not detract from the fact that he is in breach of, firstly, his statutory duty as a magistrate (see section 19 of the Magistrates Ordinance), and secondly the rules of natural justice.

12. In Harrington v. Roots (1984) 2 A.E.R. 474, it was stated by Lord Roskill in his judgment :

 

"They (the justices) cannot dismiss any information until after they had heard the parties and what evidence the parties may properly lay before them, save of course where no evidence is tendered by the prosecution.. ...... The justices were in grave error, first, in dismissing the information out of hand and, second, in adhering to that decision when invited to depart from it."

13. In the above-mentioned case, the defendant was charged with assaulting a police officer and using threatening behaviour likely to cause a breach of the peace. When the case came up for hearing the magistrates adjourned the hearing on the application of the prosecutor because the police constable concerned was away on holiday and no objection was raised by the defendant to the adjournment. The case was adjourned to the 24th of August but the defence asked for another day as the defendant would be away on holiday on that day. The magistrates refused to allocate another day for the hearing of the case and without asking the prosecution if they were able to proceed forthwith, decided to dismiss the charge.

14. Further on in his judgment, Lord Roskill stated :

 

"My Lords, I am clearly of the view that what happened in the instant case was, to adapt Lord Sumner's phrase, no trial at all.  The dismissal of these informations was without jurisdiction and was a nullity.   To borrow the phrase of Colerridge J. in Brown's case (1857), the duty of adjudging was declined."

15. In R. v. Birmingham Justices, ex parte Lamb and another application (1983) 3 A.E.R. 23 the prosecutor applied for judicial review of the magistrates' decision by way of orders of certiorari to quash their decision dismissing the charges and of mandamus directing them to hear the case. In the first case the defendant pleaded guilty on two occasions to a charge of obtaining a meal by deception but on both occasions the magistrates refused to accept his plea and entered pleas of not guilty because the defendant honestly believed a third party was going to pay for the meal. The defendant denied that there was any criminal intent. On the second occasion the magistrates indicated to the prosecution that it would not be in the interests of justice to proceed with the charge because in their view the defendant was the innocent victim of circumstances and it would be difficult for the prosecution to prove criminal intent and the sum was a trivial one, i.e. £6.75, and he invited the prosecution to offer no evidence. The prosecution declined that invitation, pointing out that there was a prima facie case against the defendant. The magistrates insisted that the case be heard that morning and when the prosecution were unable to produce the witnesses, they refused an adjournment and dismissed the information. It was held, inter alia, that

 

"Magistrates have no power to dismiss a charge without hearing any evidence simply because in their view it would be unjust or prejudical to the defendant to continue the hearing. They could only reflect their sense of any injustice to the defendant by deciding that the charge had not been made out at the end of the prosecution case, or by acquitting the defendant after they had heard the whole of the evidence or by imposing a penalty which reflected their sense of the injustice."

16. In the instant case, the magistrate in setting out his reasons for dismissing the charge against the respondent, particularly those in para. 6(4) and 6(5) -

 

"6(4) If the case is set down for trial where the defendant pleads guilty even though the brief facts of case do not support the charge the Crown is unlikely to score a conviction as little weight can be given to evidence adduced, if any, outside the ambit of the prosecution's brief facts of case by the trial magistrate.

 

6(5) In my view, such trials are very likely to end up in defendant's acquittal with costs awarded against the Crown : an exercise in wastage of public money and time."

pre-judged an issue which he has not heard, namely that the Crown would not be able to prove the elements of the offence, and secondly, that there will be an acquittal. I think the emphasis which appears in the cases I have cited, is that the law does not permit cases, whether on the grounds of supposed injustice or on the assumption that the Crown cannot prove its case, to be dismissed out of hand without any evidence being heard. In this respect, I would remind the magistrate that the summary of facts is not evidence unless accepted by respondent upon a plea of guilty and that the prosecution are not bound by the summary when the defendant pleads not guilty, and indeed, such a summary of facts should not form part of the papers, in the same way as a record of previous convictions, before the trial magistrate on a not guilty plea.

17. The dismissal of this charge by the magistrate in this case being a nullity, the respondent would not be put in double jeopardy if an order was made that this case be remitted to the magistrate's court for a plea to be re-taken before another magistrate. (See Harrington v. Roots).

18. My answer to (b) is 'no' and the exercise by the magistrate of such a supposed power is an abuse of his powers under the Magistrates Ordinance.

19. The appeal is allowed and the case is remitted to the Magistrate's Court at Causeway Bay for a plea to be re-taken before another magistrate.