LAM NGOK-YEUNG v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

Miscellaneous Proceedings

Appearances: Muscroft for the Applicant (on both Motions)

                      Chow for the 2nd Respondent (on the 2nd Motion)

                      Graham for the Intervener, H.M. Attorney-General (on both Motions)

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JUDGMENT

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1. By leave both these Motions were called on and heard together.

2. Mr. Muscroft moves by leave granted ex parte by me on 31st October this year, for a Writ of Habeas Corpus ad Subjiciendum and for Judicial Review by way of an Order of Certiorari in relation to a term of imprisonment of 6 months passed on the Applicant LAM Ngok-yeung by His Honour Judge Cameron sitting in the District Court at Victoria on 15th October 1984 and the Warrant of Committal signed by the learned District Judge on that same day.

3. Because Mr. Muscroft was not in a position, when he appeared before me in October , to give me the full details of what had happened, (for example, the Judge's Notes were not then available and the Warrant was not then available), instead of releasing the Applicant, as I was entitled to do, I admitted the Applicant to bail, and ordered that a Notice of Motion for the Writ do issue and that it be served upon the Commissioner for Correctional Services, the Director of Immigration (who was the prosecutor below) and His Honour Judge Cameron, in order that those 3 parties should be given an opportunity to be heard here to-day, so that I would have a full explanation; and, in relation to the Judicial Review, that a Notice of Motion be served on the Director of Immigration and on His Honour Judge Cameron.

4. When the Motions were called on to-day, Mr. Graham applied, on behalf of the Attorney-General, for leave to intervene and to appear as a party. He did so on the basis of established authority such as Adams v. Adams (Attorney-General intervening) [1971] P. 188, to which reference is made in the 3rd paragraph of note 53/6/8 at p. 181 of the 1985 Supreme Court Practice. The note there reads:-

"The Attorney-General has a right of intervention in a private suit ..... at the invitation or with the permission of the Court, whether suit raises any question of public policy .....",

(I have left out the words that are not applicable to Mr. Graham's application). It was quite clear from the outset that this was a case where The Attorney ought to be allowed to intervene as a party, and I granted his application. In fact, Mr. Graham has been of very considerable assistance to me, both on the technical, and on the wider, issues involved in this matter.

5. I will deal, first of all, with the 1st Respondent, that is the Commissioner for Correctional Services. The Commissioner made a Return to the second Motion, that is the Habeas Corpus Motion: It is in these terms:-

"Garth David Hydes Acting Deputy Commissioner for Correctional Services for Hong Kong in the obedience to the writ herewith do certify and return that LAM Ngok-yeung was detained in prison custody from the 15th day of October, 1984, pursuant to the Warrant issued by His Honour Judge Cameron on the same day."

 

The said LAM Ngok-yeung was released on bail on the 31st day of October, 1984 pursuant to the Order made by the Honourable Mr. Justice Jackson-Lipkin in Chambers on the same day.".

I found that that is a proper and true Return; that the Commissioner was acting correctly on an Order which he had no cause to believe was other than valid, and I am happy to be assured by Mr. Muscroft that no relief is sought now, or will be sought in the future, against the Commissioner for Correctional Services.

6. The 1st Respondent to the 1st Motion and the 2nd Respondent to second Motion appears by Mr. Chow, who has very properly taken the attitude that he should say nothing at all, and takes no part in the proceedings, and I will hear, I hope, from Mr. Muscroft shortly that no action will be taken against the Director of Immigration for anything that has happened in this matter.

        Court:     Is that so, Mr. Muscroft?

Mr. Muscroft:    It is, my lord, yes.

Court:    Yes.

7. I have heard nothing from the other Respondent save this, that, in a private conversation between Crown Counsel and the Registrar of the Supreme Court, Crown Counsel was informed by the Registrar of the Supreme Court that the Registrar had reason to believe that that other Respondent did not wish to appear and would probably take no part in the proceedings. In any event without either return or acknowledgement, the other Respondent has not appeared here before me.

8. On the face of these Motions, they can be resolved very simply, but the matters raised on behalf of Her Majesty's Attorney-General are of wider significance.

9. The Applicant was committed to prison for 6 months on a Warrant issued by His Honour Judge Cameron headed thus "Warrant where a witness has not obyed a summons". That has been amended in ink to "obeyed", and that, therefore, is some indication what whoever drew this Warrant and signed it, was reading it through before signing it, and taking care that it reflected what was intended. It recites four charges against somebody named TSE Kui-ming, and then recites that "A Summons to Witness" (what that means I do not understand, but presumably it means a witness summons) "was duly issued by the Victoria District Court to the said witness". The "said witness" was referred to earlier in these words:

"It having been made to appear that LAM Ngok-yeung of 1912 Tin Chu House, Shun Tin Estate, Kowloon was likely to give material evidence on behalf of the Crown",

and it continues,

"requiring him to appear on Monday the 15th day of October 1984, at 10 o'clock in the forenoon, at the said Victoria District Court before His Honour Judge".

and "Cameron" has been inserted in typescript,

"to testify what he should know."

It then goes on:

"and the said witness having refused to give evidence when duly required to do so, and no just excuse having been offered for such refusal",

and I stress those words,

"These are, therefore, to command you, the said police officers and prison officers to take the witness LAM Ngok-yeung to a prison, and therefore to deliver him to the Commissioner for Correctional Services together with this warrant; and you the said Commissioner to receive the witness into custody in a prison and there to imprison him for the space of 6 months; and for doing, this shall be your sufficient warrant.",

and it is signed in the hand of His Honour Judge Cameron.

10. Before going to other documents, I must observe this; that the person who was committed was a person giving evidence before the learned Judge: That appears from the affirmation of the Applicant sworn in this matter on 31st October of this year, and, therefore, this Warrant was wrong from the first line, because the witness had obeyed the summons; had arrived at Court on the day and at the time specified (because there is no evidence that he was late or that it was the wrong day); and had given evidence. Again, the Warrant is wrong on the face of it because the witness did give evidence when duly required to do so. That, again, is clear from the affirmation that was put before me, and it has not been challenged by the Crown, and it continues "no just excuse having been offered for such refusal". According to the affirmations, the witness did not know what was happening at all. He was just taken away, sent down to the cells, brought up and then committed to prison for six months.

11. Without anything else, I would set this Warrant aside.

12. But, alas, there is more. By the courtesy of the Attorney-General, I have been supplied with a certified true copy of the Judge's Notes of what happened. The date is the 15th of October, the date appearing on the witness summons, (the time does not appear) and a Mr. Ricky Ma, Crown Counsel, appeared to prosecute; Mr. P.K. Lee of Counsel appeared to defend. The witness gave evidence on affirmation, and gave his name, occupation, address, previous address, identified the Defendant and was asked a question by the Crown. Thereupon the Court intervened and asked two questions, and the Crown was able to resume its examination-in-chief: Three questions were asked on behalf of the Crown, when the Court intervened again with two more questions. The Crown had another "go" at examinig-in-chief and got in one further question before the Court intervened again. Three questions later, the Crown tried once more and asked one more question and the learned Judge intervened again with three more questions. Then Crown Counsel managed to get in a number of questions, six in all, and the Court then intervened. The intervention eras this:-

Q.    "Recall giving statements to Immigration Officers in July?"

Q.    "You have not had a copy of those statements?"

A.    "I have seen them".

Q.    "Seen them since July?"

A.    "I can't remember. After I made the statement, it was shown to me."

13. Crown Counsel then asked that the witness be allowed to read the statements to refresh his memory and Counsel for the Accused raised no objection, so there was a 15 minutes adjournment for the witness to read those statements. The witness came back and was reminded of his former oath, and the learned Judge asked if he had read the statement, and the answer was "yes". Then Crown Counsel recommenced his examination-in-chief and that took whole of p.5 and half of p.6. After that the learned Judge intervened: He intervened half way down p.6 and he himself examined this witness for the rest of p.6, the whole of p.7, with the exception of one question put by Crown Counsel, "What happened?" and one answer "I left", the whole of p.8 and the whole of the evidence on p.9. Crown Counsel was not permitted to protect his witness, nor was he asked if he wished to ask any questions arising out of those asked by the learned Judge. Counsel for the Accused apparently was given no part to play in its proceedings at all. At the end of the Judge's long examination, there is this note, "witness sent downstairs. Told he would be dealt with for contempt of court for refusing to give evidence.". That is wrong on the face of it because there had been no refusal to give evidence. I am not proposing in this judgment to go right through these Notes of Evidence, but they do not bear out, and, indeed, Counsel for the Attorney-General urges upon me to the contrary, they do not bear out that there was any refusal at any time to give evidence, and Crown Counsel has pointed out to me, quite properly, where the learned Judge recorded a pause, that is hardly surprising, considering the witness was being asked about events (unimportant to him at tile time when they happened) some 4 years before. The final note reads as follows:

"P.W.1 brought before me."

["P.W.1" is shorthand Hong Kong style, and, I assume refers to LAM Ngok-yeung] and the note continues as follows:

"P.W.1 informed that he had been warned whilst giving evidence of the consequences of failing to answer questions and that despite that warning when later asked to give step by step account of what happened at Sheung Shui he refused to do so."

14. As I have said, there was no refusal apparent on these Notes. That is not only my observation; it is not only apparent from what is typed there; but it is urged upon me by the Crown that there was no such refusal: And then come these words:

"P.W.1 sent to prison for 6 months for contempt of court. Section 36(1)(b), Cap. 221."

"Cap. 221" is short for "Chapter 221 of the Laws of Hong Kong", and is shorthand Hong Kong style, referring to The Criminal Procedure Ordinance. I shall now read section 36(1)(b):

15. But he did not refuse to be sworn; he did not refuse to give evidence: He did give evidence - when duly required to do so. The trouble was that he could not remember "step by step" what had happened four years before, and, as Counsel for the Attorney-General has pointed out, it is a matter to be brought out by Counsel, who will ask such questions as he thinks are right and proper, and of the matters necessary to put before the court. Crown Counsel in this Colony are responsible people, and it can be left them to put before the court what evidence they feel should be put forward for the prosecution. They, and they alone, decide what evidence should be put forward on behalf of Her Majesty to see whether or not the court, or the court and jury, can convict. No Judge in this Colony is a Commissioner in Eyre: We can not conduct investigations of our own, and certainly we can not invite witnesses to recite "step by step" what they did many years before-hand, and then send them to prison if they miss out a step, or can not remember. But, as I have said, nowhere at all was there anything that fell within s. 36(1)(b) of the Criminal Procedure Ordinance: No refusal to be sworn; no refusal to give evidence.

16. As was said in the course of argument (and it may be useful for me to include it at this point): If the witness had made a contemporaneous statment, then, when he said that he could not remember, he could have been shewn such and asked if what he said therein was true at the time when he made it. If the answer were to the effect, "oh, yes, and now I remember", all well and good. If, however, he were to deny the authenticity or the truthfulness of his earlier statement, or to persist in a by-then clearly false failure of recollection, there are prescribed ways in which such conduct could have been punished - if appropriate - and in the appropriate manner and with the appropriate safeguards. But such is far removed from the case with which the learned Judge was, and with which I am, dealing.

17. That, however, does not end the matter, because it was quite possible the learned Judge may have done the right thing under the wrong section, and, if there has been a contempt of court, then of course, such contempt of court should be punished. He has other powers under the District Court Ordinance. He has powers under section 20. Section 20(a) does not enter into this matter: Part of section 20(b) might, because it reads:

"If any person -

(b) ..... commits contempt of the court or otherwise misbehaves in court,

 

any officer of the Court, with or without the assistance of any other person may, by order of the judge, take the offender into custody and detain him until the rising of Court and the judge may if he thinks fit -

 

(i) by warrant under his hand commit the offender to prison for a specified period not exceeding 2 years .....".

Where was the misbehaviour? None: And the Crown concedes there was none. But was his failure to remember, a contempt of court. In my judgment certainly it was not, and I am fortified in that view by the decision in Cheung Yuk-Har v. The Queen [1979] H.K.L.R 95. I do not need to say any more on that; it is clear beyond peradventure that what this witness did or did not do, what this witness remembered or did not remember, could not fall within section 20.

18. The remaining power is under section 21, and that relates to false evidence, it reads as follows: -

"If it appears to a judge that any witness ..... has wilfully given false testimony, the judge may -

 

by warrant under his hand commit the offender to prison for a specified period not exceeding 14 days:";

but this was 6 months. Even if the Judge had been acting under this section, there was a proviso to it, which reads as follows:

"provided that before making any order under this section, the judge shall firstly clearly inform the witness of the specific words which appear to the judge to constitute a false testimony and shall give the witness an opportunity to showing cause why the order should not be made and shall, and if so requested by the said witness, adjourn the proceedings in order to enable the said witness to instruct solicitor or counsel on his behalf."

19. Here I most digress momentarily: The absence of such proviso in s. 20 can not be used to rely upon the expression unius rule. I can not believe, and in this I am unreservedly supported by Mr. Graham and Mr. Muscroft, that the absence of such proviso in s. 20 means that the Legislature expressly intended to exclude the rules of natural justice - audi alteram partem, fairness etc. from the exercise of the powers granted by s. 20 - of course they apply, as, indeed, they do in the case of s. 36(1)(b) of the Criminal Procedure Ordinance.

20. The Judge did none of those things. Crown Counsel described this as an unhappy chapter: I would agree with that euphemism.

21. The power to commit for contempt must be used very sparingly, and only in the clearest of cases. Save in the gravest exceptions, if the power is to be used, the person against whom it is to be used must be told exactly, and in precise terms, why the use of that power is contemplated, and that person must be given an opportunity to explain and/or to exculpate himself (or herself) and, in the majority of cases that will suffice; but, where the Judge is of opinion that such explanation does not suffice, then, in my judgment, it is the duty of the Judge to afford the alleged contemnor an adjournment of the matter for that person to be represented by solicitor or counsel.

22. I would invite the attention of anyone who should be interested in this judgment, to something similar, but not entirely on all fours, which occurred in England; it is the cases of Chowdhury and of Crone which were heard together by the Court of Appeal in England on 29th March, 1984: The Times Newspaper 29/3/84. The heading is self-explanatory: "Judges wrong to fine up unrepresented witnesses for contempt". I do not propose to read that judgment, but merely to refer to it, because I have reached the same conclusion in a different way.

23. Crown Counsel has pointed out to me that this witness was subjected to a lengthy "cross-examination" by the Judge in the middle of his evidence-in-chief, giving Crown Counsel little opportunity to be heard, although it was his witness who was in the box; giving Counsel for the Defendant none, according to the notes; not asking whether or not Crown Counsel wished action to be taken against the witness; and, in fact, consulting neither Counsel.

24. Many aspects of public interest have been raised by Mr. Graham: Most of them I have already dealt with, but there is this other one: Mr. Graham pointed out to me that it is difficult enough in Hong Kong to get witnesses willingly to come forward to assist the Crown in cases, and fewer still will come forward if, because their memory fails them over events of years ago, they face a long term of imprisonment, without even been given a chance to explain: [This, I must emphasise, is not an instance of a clearly contumelious witness giving every appearance of having been "nobbled"] I entirely agree. Of course, a Judge is always entitled to ask questions of a witness in the middle of his examination-in-chief, or his cross-examination or his re-examination, if it is necessary to clear up some ambiguity, or to clear up something not clear in his notes: That goes without saying, but it does not then entitle the Judge to enter into a lengthy cross-examination. At the conclusion of re-examination, it is the privilege of any Judge to ask as many questions as he wishes, in order to clear his mind of doubt, to clear up points where doubts have arisen, to try to get a rational explanation of inconsistencies and so on: Provided always that he follows the time-honoured procedure, which, as Counsel for the Crown assures, me is as much the general practice here in Hong Kong as in England, of turning to each of the Counsel in the case and asking if any of them wishes to ask further question arising out of his, the Judge's, questions. Nothing remotely resembling that happened in this case.

25. When Mr. Graham says to me that the public interest is not served by making an Order such as the one I am about to quash, he is putting it at its lowest.

26. Both these Motions succeed: A Writ of Habeas Corpus will issue; the Applicant is released from custody forthwith; the surety is discharged; and the Order of His Honour Judge Cameron, and the Warrant issued pursuant to that Order, are quashed.

27. It is unfortunate that there are no funds available to this Court to do what would happen in England, but I understand that sympathetic consideration will be given in the matter of costs, if an application is made. I say "sympathetic consideration", because quite clearly the Crown can not, and must not in such circumstances, commit itself here to anything like that: All the circumstances have to be taken into account, but I am assured by Mr. Graham that sympathy will be given if an application for compensation as to the costs of both these hearings is made through the usual channels. I should like to say how very much obliged to Mr. Graham for his assistance, and I am sure Mr. Muscroft will join with me in that.