R v. TAM KIN WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1108 of 1996

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of managing a vice establishment and was sentenced to 3 months imprisonment. He now appealed against conviction.

2. The grounds of appeal are essentially :

(1) There was a material irregularity in that the magistrate failed to assist the appellant who was unrepresented, in particular he failed to -

(i) ensure that the appellant was appraised of the relevance of his good character and was therefore deprived of the benefit of a good character direction;

(ii) keep a record of the assistance rendered to the appellant;

(iii) failed to explain to the appellant his right as to the oral statement he made which prosecution proposed to adduce in evidence.

(2) The magistrate failed to remind himself that the appellant who had no previous record and had given pretrial answers was entitled to a good character direction.

(3) There was a material irregularity in that the magistrate refused to grant an adjournment to enable the appellant to obtain legal representation.

3. The appellant first appeared before a magistrate on 10th June 1996 to answer to the charge to which he pleaded not guilty. He was then unrepresented. The case was adjourned to 10th July 1996 for trial. At this first hearing, he was advised by the magistrate that if he intended to have legal representation, he should arrange it as soon as possible. He was granted bail. He was therefore not prevented by reason of being in custody from seeking legal representation.

4. On the adjourned date, 10th July 1996 the appellant appeared before the magistrate and was legally represented. This date was supposed for the trial of the case against the appellant. However, his then legal representative informed the magistrate that the appellant's counsel of choice was Mr Hemmings who was then out of Hong Kong and an application for adjournment was made. The application was granted and 27th August 1996 was fixed as the new trial date.

5. On 27th August 1996, the adjourned trial date, the appellant was represented by counsel Mr Jenkyn-Jones. Counsel informed the magistrate that his instruction was limited to apply for an adjournment. It should be noted that it was not Mr Hemmings, the appellant's counsel of choice, appearing for the appellant on this date. Counsel informed the magistrate the reason for the application for adjournment was the appellant wished to find two women prostitutes who were involved, interviewed and had provided statements to the police to be his witnesses and letters had been sent out on 23rd August 1996 to these women inviting them as witnesses on the advice of Mr Hemmings. However, there was no response and a visit to the address proved to be fruitless. The magistrate refused the adjournment. Counsel then informed the magistrate that he no longer represented the appellant but he asked the magistrate to adjourn the case to the afternoon so that the appellant could attempt to locate these two women and to contact the Duty Lawyer. The magistrate again refused the adjournment. The trial thus proceeded with the appellant acting in person.

6. The magistrate recorded in his notes of proceedings that he had explained to the appellant and understood by him the charge, the law and procedure involved in the trial. The magistrate also recorded that he had read the facts of the case to the appellant before evidence was called by the prosecution so that the appellant was aware of the case alleged against him.

7. The appellant thereupon renewed his application for adjournment but it was refused by the magistrate. The magistrate proceeded to hear evidence from the prosecution. The appellant elected not to give evidence and the appellant was thereafter convicted.

8. The magistrate in his statement of findings set out the reason for his refusal of the applications on the several occasions when they were made. His reasons were mainly that the appellant was given ample opportunity to enable him to have legal representation of his own choice and had 31/2 months time to find his witnesses but the appellant only took steps to locate his witnesses very recently before the trial date of 27th August 1996. His other reason was there was nothing to enable him to know how these two women would be of assistance to the defence, counsel for the defence having previously acknowledged that the police statements given by these two women were not of assistance to them. On his refusal to adjourn to the afternoon, the magistrate considered that it would not advance the position of the appellant any further even if a few hours were given to the appellant.

9. Dealing with ground 3 first, the appellant had been given ample opportunity to be legally represented and on the adjourned trial date on 27th August 1996, the application for adjournment was not made on ground of seeking proper legal representation, but on fresh ground of locating witnesses. The appellant was not without legal advice in preparation of his defence from Mr Hemmings, counsel of his choice. The appellant deliberately instructed Mr Jenkyn-Jones on a limited basis on 27th August 1996 well knowing that that was the date for trial. His attitude was tantamount to using the lack of legal representation to attempt to force the magistrate not to proceed. There was nothing before the magistrate to show it was likely that the two witnesses could be located at short notice, the appellant being unable to locate them previously. There was also little likelihood that the appellant would have taken the benefit of the Duty Lawyer Scheme since according to the record, it was always the desire of the appellant to have Mr Hemmings to represent him at the trial. That the appellant was left without legal representation was a matter of his own choice. The magistrate was entitled in such circumstances to decide to proceed to trial without further delay and no complaint could be made against the magistrate.

10. On the assistance given to the appellant by the magistrate, the magistrate had recorded in short language what assistance he rendered to the appellant e.g. "defendant's rights explained" in respect of cross-examination, election whether to give evidence and submission. Complaint was made that the magistrate did not particularise in his record what he exactly told the appellant.

11. The matters the magistrate put on record as having been explained to the appellant were sufficient to indicate that the appellant was made aware of his rights as a defendant in the trial. It was not necessary for the magistrate to particularise in details every word he said in his explanation.

12. Neither s.34 of the Magistrates Ordinance, Cap.227 which required the magistrate to keep a record of the proceedings nor authorities required what was kept should be with particularity. As pointed out by Pickering J. in Ngo Tai Ting v. R. [1976] HKLR 143, even omissions in putting on record that unrepresented defendant was informed of his rights to call a witness and to cross-examination would not be fatal to a conviction. He said at page 149 :

"I am far from saying that the omission of a professional magistrate specifically to endorse upon the record that an unrepresented defendant was informed of his right to call witnesses, will necessarily result in a successful appeal. Appellant courts must and do recognise that professional magistrates are indeed professionals and as such entitled, as a matter of routine of this sort, to the benefit of any doubt."

13. Cons J. in Lam Kwok-hing v. R. Crim. App.199 of 1976 indicated that the record must show the unrepresented defendant had been informed of such rights but he said at page 4 :

"... But matters of this nature that occur in every trial can easily be recorded by the briefest of abbreviations and need cause no actual delay in the proceedings."

14. Thus there can be no complaint about the lack of particularity in the record kept by the magistrate.

15. Complaint was made that the magistrate failed to assist the unrepresented appellant in several ways namely, he failed to tell the appellant the importance of good character, the need to give evidence in rebuttal of the prosecution witnesses and whether or not his oral statement was voluntary.

16. It was submitted for the appellant that since the magistrate had refused the adjournment so that the appellant was to act unrepresented, it was imperative for the magistrate to see that the appellant was not prejudiced. Reliance was placed on R. v. Joseph Carter [1960] 44 Crim. App.R225 where at page 226 Mr Burge, Counsel for the appellant said :

"If through some misunderstanding an accused person finds himself, contrary to his desire, to be unrepresented and the Court thinks it proper to refuse an adjournment, ... it is imperative on the Court to see that the prisoner is not prejudiced by being unrepresented."

Reliance was also placed on what Lord Parker L.C.J. said at page 230 :

"... it would be impossible to interfere with the discretion in refusing to adjourn the case, for that reason alone it became imperative to ensure that this appellant, who was unrepresented, had every opportunity of putting forward his defence ... and for that purpose the court should have given him every assistance. ... The Court feels that the appellant, unrepresented as he was, did not in the result have a fair trial."

17. It was submitted for the appellant that the appellant had a clear record and he had given a verbal statement to the police admitting he was the manager but was only responsible for greeting customers and collecting money i.e. he had no knowledge of sexual activities on the premises so that the statement was a mixed one. On the authority ofR. v. Aziz [1995] 3 W.L.R. 53 it was submitted that the appellant being a person with no previous conviction who had given a pretrial mixed statement was entitled to a good character direction but the magistrate had failed to do so.

18. It should be noted that in the present case, the appellant did not give evidence and his mixed statement did not in any way, expressly or impliedly show that he was a person with a clear record. There was nothing to indicate that he was a person with no previous conviction. His good character was never put in evidence. The magistrate was never aware of his good character and that being the case, the magistrate could not have given himself the good character direction.

19. Any argument that the magistrate should enquire at the trial if the appellant was a person with a clear record could not be sustained for the simple reason that there was a risk that the appellant might not have a clear record the disclosure of which would be prejudicial to the appellant.

20. It was submitted for the appellant that the prosecution had a duty to inform the magistrate at the trial of the appellant's good character. No authority had been cited in support of this proposition but an analogy was drawn between this duty and the prosecution's duty to disclose material information to the defence. Mr Griffiths for the appellant referred to R. v. Lai Hon Man Crim. App.421 of 1992 where the Court of Appeal held in the case where the defendant had led evidence that he had a clear record, the judge must give a good character direction to the jury. Mr Griffiths drew support for the proposition that the prosecution had a duty to inform court of the defendant's good character from what was said by Sears J. at the end of the judgment :

"We would only add that it is the duty of prosecuting counsel to remind the Judge of non-directions and to correct him on misdirections. This was not done here."

Mr Leung for the prosecution informed me that he could not find any authority on such a proposition.

21. Lai Hon Man was no authority that the prosecution had such a duty. Prosecuting counsel's duty to remind or to correct the judge on matters missed out in his directions should not be taken to mean including matters which had not been put in evidence by either side.

22. The prosecution's duty to disclose to the defence material information did not include a duty to disclose to the court the defendant's character. It would be for the defence to decide whether to put his character at issue.

23. The magistrate could not be faulted in such circumstances for not giving himself a direction on the good character of the appellant.

24. The duty of a judge or magistrate to assist an unrepresented defendant had been considered in a number of Hong Kong cases. In Szeto Ming v. R. [1978] HKLR 61 it was said that a judge or magistrate must be careful not to step into the arena but that he was not prohibited from ensuring that any defence a defendant might have or any point he had to make was fully brought out :

"It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as necessary for the proper conduct of his defence." (At page 62)

25. In Chan Leung v. R. [1979] HKLR 98, Li J. said at page 105 :

"... generally the trial magistrate's duty in assisting an unrepresented accused does not go beyond advising him of his legal rights in matters of procedure and in law. In appropriate circumstances it may be desirable for the magistrate or the trial judge to ask witnesses questions not so much to assist the accused but as to ascertain the truth and to ensure that justice is done. Further his duty may include some assistance to the accused by asking a few pertinent questions if such questions were apparently necessary. There is no duty on the part of the magistrate to conduct the defence as such or take over the cross-examination from the accused."

26. Roberts C.J. in R. v. Tong Kwok Yip Crim. App.798 of 1985 considered the duty referred to by Li J. He said :

"I do not think that Li J. was seeking to impose any obligation on a magistrate to ask questions to assist an accused or to ascertain the truth of the matter where he is unrepresented. As I read his judgment, he is saying that it is perfectly proper for a magistrate to do so if he wishes, not that he must do so."

27. In Yuen Yu Kin v. R. Crim. App.807 of 1979 which was referred to by Mr Leung for the prosecution, Cons J. said :

"The fifth ground of appeal is that the appellant, being unrepresented, the learned magistrate failed to assist him in presenting his case in cross-examination, with the result that the prosecution witnesses' evidence was wholly untested and unchallenged.

I am referred to R. v. Wong Hing Crim. App.193 of 1979 where Trainer J. said :

'But where an accused is unrepresented the burden of seeing that justice is done is heavier on the trial judge. He must ensure that the accused understands the charge that he faces and help him make his defence if he feels that the accused is unable to do so. An example of what I mean arises if an accused when afforded the opportunity to cross-examine a witness persists in making a statement. In such a case, in my opinion the bench should, if possible, formulate a question out of the statement and put it to the witness.' "

28. Later on in the judgment Cons J. concluded :

"He is bound to ensure that an unrepresented defendant has a fair trial. Subject to that it is a wise magistrate who interferes as little as possible with the course of proceedings before him. His good intentions are as likely to hinder as to help the defendant in his defence."

29. Mr Leung referred me to the evidence of PW1 on the record that PW1 went to the premises where appellant told PW1 the fees and what service the girl would perform and he would introduce a nice girl to PW1. The magistrate questioned the witness about what happened on the premises and later the magistrate asked the appellant if he accepted the conversation alleged by PW1. The appellant then made a statement. The magistrate advised him to ask questions about that conversation, as a result the appellant asked pertinent questions.

30. Mr Leung also referred to the evidence of PW2 of what happened inside the premises and the magistrate advised the appellant : "Should ask questions about where disagree with his evidence - for example about his evidence regarding your explanation to him of the services available!"

31. It was submitted that the magistrate was assisting the appellant in his defence.

32. After the prosecution case closed and the magistrate ruled a case to answer, the appellant was advised of his right and the appellant chose to remain silent. The appellant then made a submission to the effect he had no knowledge of the premises involving in sex services. The magistrate then told him that was not submission and ask him if he wished to give evidence . The appellant declined.

33. The appellant had an inherent right to remain silent and being fully aware of the nature of the allegations against him and of his own defence and given twice the opportunity to give evidence in rebuttal but still adhering to his right of silence, he could be heard to complain about not having a fair trial.

34. On the verbal statement given by the appellant, there was nothing to show that the appellant did not accept that he made that verbal admission that he was the manager there. What he did not agree was that he had knowledge that sex services were involved. The appellant in his cross-examination of PW3 who arrested and cautioned the appellant never suggested to PW3 anything which indicated that his verbal statement was not a voluntary statement. Ajodha v. The State [1982] A.C.204 was referred to support the complaint that the magistrate had not informed the appellant of his right to challenge the admissibility of his verbal statement so that the magistrate must inquire into its admissibility first. However, it was only where the circumstances indicated that the verbal statement might be taken involuntarily from the appellant that it would be incumbent for the magistrate to so inquire. Where there was no suggestion from the appellant that his verbal statement might be involuntary, the failure by the magistrate to tell the appellant he could challenge its admissibility was not prejudicial to the appellant.

35. There was nothing to suggest that the magistrate did not do as required of him by the authorities in his duty towards the appellant as an unrepresented defendant at the trial. The appellant had not been prejudiced by being unrepresented and it could not be said that he did not have a fair trial.

36. The appeal against conviction is dismissed.