THE QUEEN v. CHAN HO LUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL 674 OF 1995

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JUDGMENT

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1. The Appellant was charged with one count of accepting an advantage contrary to s.4(2)(a) of the Prevention of Bribery Ordinance, Cap.201. He was convicted of an alternative charge of theft on the 5th May 1995 and was sentenced to three months imprisonment by the learned magistrate.

2. In brief, the facts led by the Prosecution in this case were that on 12th October 1994, the defendant who is a police officer was on patrol duty in the Lan Kwai Fong area of Central. He entered a public toilet where he intercepted the main witness for the Prosecution. That witness was in the toilet for homosexual purposes and the Appellant told him that he could arrested him for the offence of loitering. He then searched the belongings of the witness and took from his wallet the sum of $100. The witness made a report that night to the ICAC and two days later, fitted with a tape recorder, the witness sought out the Appellant in Lan Kwai Fong and two conversations were taped. That tape was in a particular format which required special equipment to replay it in court. That equipment was not available in court at the time of the trial.

3. At the close of the case for the Prosecution, the prosecutor applied to add an alternative count of theft which application was granted by the learned magistrate. The first ground of appeal arises from the grant of that application.

4. Having granted the application the alternative charge was read and explained to the Appellant who entered a plea of not guilty. The Prosecution then closed the case. Mr Chung argues that in the process of allowing the Prosecution's application and adding an alternative count of theft the learned magistrate failed to follow the mandatory provisions in s.27(b) & (c) of the Magistrates Ordinance and that a material irregularity occurred. Mr Chung referred me to the case of the R. v. Cheng Yiu Kong MA676 of 1987 where O'Dea, J. said:

5. The provisions of s.27(3) are mandatory. But the question which I must decide is whether the learned magistrate in complying with s.27(3)(b) & (c) need invite from an Appellant, who is represented, an application to call or recall or further examine witnesses or ought to solicit from an Appellant, who is represented, an application to adjourn to enable parties to call or recall witnesses and prepare their cases.

6. Had the legislature intended him to do so such words would have been included in the section as they were in subsection (3)(a). It is clear that pursuant to s.27(3)(a) the learned magistrate must read and explain the amended complaint information or summons to the defendant. Having done so, it is for his counsel to ask for leave to recall witnesses or to apply for such adjournment as he may consider necessary. The mandatory provisions of s.27(3)(b) & (c) require the learned magistrate to grant leave, or to grant the adjournment where either application is made and where either application is reasonably necessary.

7. In the event that an Appellant were unrepresented, it is clear that the learned magistrate should explain the provisions of the Ordinance to the unrepresented Appellant but even in that case, it would not be necessary for him to invited an application pursuant to either of these subsections providing he has satisfied himself that the Appellant understands the law.

8. I am satisfied that in this case the learned magistrate having complied with the provisions of s.27(3)(a) and having before him a defendant represented by counsel had needed to neither explain the law nor to solicit any application from counsel. I am satisfied that the learned magistrate complied as far as he need with s.27(3) and there is no sustainable complaint in this ground of appeal.

9. The learned magistrate went on to find a case to answer in respect of both the count on the charge sheet and the alternative count of theft.

10. The Appellant elected to give evidence and having done so, the case for the Defence was closed. At this point the learned magistrate having heard argument, reviewed his decision in respect of his finding made at the close of the case for the Prosecution that the Appellant had a case to answer in respect of the charge contrary to s.4 of the Prevention of Bribery Ordinance, Cap.201, and held that there was no case to answer on the evidence of the Prosecution in respect of that charge. He ruled that he would continue with the theft charge.

11. Mr. Chung argues that a material irregularity in the trial took place as a result of that ruling. Section 24 of the Prevention of Bribery Ordinance, Cap.201 reads:

"In any proceedings against a person for an offence under this Ordinance the burden of proving at the offence of lawful authority or reasonable excuse should lie upon the accused."

12. Section 25 of the same Ordinance reads:

"Where, in any proceedings for offence under s.4 or 5 it is proved that the accused gave or accepted an advantage, the advantage shall be presumed to have been given and accepted as such inducement or reward as is alleged in the particulars of the offence unless the contrary is proved."

And s.26 reads:

"Notwithstanding any law or practice to the contrary it shall be lawful for the court in any proceedings for an offence under part(II) to comment on the failure of the accused to give evidence on oath."

13. The end of the day Mr Chung conceded that the Appellant was not prejudiced in any way by s.24 or 25 of the Prevention of Bribery Ordinance but argued that he may have been prejudiced by s.26 as at the time when he made his election to give evidence there was against him a case to answer in respect of s.4 of the Prevention of Bribery Ordinance and that he may have had in mind that should he fail to give evidence then the learned magistrate may adversely comment upon his failure to give evidence and take that failure into consideration when arriving at his determination. He further argues that if the finding by the learned magistrate that the Appellant had no case to answer in respect of the offence contrary to s.4 of the Prevention of Bribery Ordinance had been made at the close of the Prosecution case then the Appellant may not have given evidence.

14. This matter was not raised during the trial and it seems to me that had this issue been in any way in the mind of the Appellant at the time when he made his election to give evidence then his counsel would have raised it with the magistrate at the time when the magistrate reviewed his decision and found there was no case to answer in respect of the offence contrary to s.4 of the Prevention of Bribery Ordinance.

15. It is not sufficient on appeal for counsel to raise an argument which depends upon speculation as to how an Appellant may have arrived at his decision to give evidence.

16. I cannot accept that in these circumstances this Appellant was in any way prejudiced in his decision to give evidence by the learned magistrate reviewing his decision after the close of the case for the Defence. This ground of appeal must fail.

17. The last ground of the appeal relates to an application made by counsel for the Appellant for the playing of the original tape in court rather than a copy which had been enhanced by the removal of some background noise, the object being to show in the context of that noise the conversation between the Appellant and the Prosecution witness. Reading of the transcript indicates that that application was never refused by the court. The application was made by counsel for the Defence, the response of the Prosecution was that such a playing would require a different type of machine than was set-up in court. The learned magistrate then said:

Counsel for the Defence then said:

"Then tape has been played twice in Court. No reason to play it again."

At that point the court said:

"I take it no requirement for re-playing of tape."

And counsel for the Appellant replied:

"Correct."

18. The counsel for the Appellant had an ample opportunity to make and pursue his application for a playing of the original tape. It was not refused by the learned magistrate and counsel did not pursue his application. There is nothing in this ground of appeal.

The appeal against conviction is dismissed.