THE QUEEN v. AU YEUNG TAT-SHING (D1) AND ANOTHER

IN THE COURT OF APPEAL

BETWEEN

____________

JUDGMENT

____________

Barker, J.A.

1. On the 13th November, 1984 the Appellants were convicted by a Magistrate of conspiracy with each other and with others to export prohibited articles, namely 78 video cassette recorders without a licence contrary to Common Law and to Regulation 4 of the Import and Export (General) Regulations Chapter 60.

2. At the hearing, each Appellant was unrepresented and each gave evidence but neither called any other witnesses. At the close of the defence cases, the Magistrate permitted the prosecution to make a closing speech.

3. The Appellants appealed against their conviction to the High Court on a number of grounds. One of these grounds only was ordered by the High Court Judge to be argued before the Court of Appeal pursuant to section 118(1)(d) of the Magistrates' Ordinance Cap. 227.

4. This ground is as follows:

"Is the right of the prosecution to make a closing speech including comment on evidence by a defendant in circumstances where that defendant is unrepresented and calls no witnesses to the facts except himself to be exercised sparingly and with becoming brevity or is there no right of address by the prosecution in these circumstances, having regard to the following divisions:

 

5. It is to be observed that all the foregoing three cases involved trial by jury. The present case came before a magistrate and it was argued before us that there is a distinction to be drawn between trial with a jury (and before a District Judge) and a prosecution before a magistrate.

6. Section 19 of the Magistrates Ordinance Cap. 227 provides, so far as is relevant:-

7. It seems to us that section 19(l) and (2) make a clear distinction between "evidence on oath" and what each party has to say (the emphasis is ours). Section 19(2) in our view gives each party the right to make a closing speech, and in no way limits this right to cases where a defendant is represented or, if unrepresented, himself gives evidence and calls witnesses as to the fact.

8. This view finds some support from rule 13 of the Magistrates' Courts Rules 1981 in England subrule 4 of which reads:

"At the conclusion of the evidence for the defence ............ the accused may address the Court  if he has not already done so."

and subrule 5 provides:

"Either party may, with leave of the court, address the court a second time, but when the court grants leave to one party it shall not refuse leave to the other."

9. The cases mentioned in the reference to us, and cited before us, were all cases on indictment and in our view are irrelevant to a trial in a Magistrates Court. Whatever be the position as to closing speeches so far as trials by jury or before a District Judge are concerned (and we express no view upon this matter) we are satisfied that the prosecution does have the right to make such a speech in the case of an unrepresented defendant who alone gives evidence in a Magistrates Court.

10. We therefore remitted the case to the High Court for the remaining parts of appeal to be determined.

Li, V.-P. :

11. I have the benefit of reading the draft judgment of my brother Barker. I am in agreement with the conclusion albeit with some hesitation. Sect 19(2) of the Magistrates Ordinance appears to provide that each party may make a closing address. Yet the provisions in Sect. 19(1) of the said Ordinance seem to pre-suppose that the Defendant has given evidence and/or called witnesses.

12. In the instant case only one Defendant had given evidence. Prosecuting counsel saw fit to exercise his right to make a closing address. In so doing he commented on the evidence against the other Defendant who did not give evidence or call any witness. Speaking for myself I would have thought prosecuting counsel should have exercised his right to a 2nd address very sparingly. Even if he chooses to exercise it the better practice is that he does not go into the evidence against the Defendant who has not given evidence or called witnesses.

13. If it is the intention of the legislature that prosecuting counsel should have a right to give a closing address in all circumstances I suggest that there should be clear provisions. It is hoped that the proper authority will look into the matter to clarify the position.

14. Whilst it is appreciated that all the English and Hong Kong authorities cited to us apply only to a trial on indictment and are therefore applicable to the District Court it is of interest to observe that a District Judge is also sitting alone without a jury.

15. Before a District Judge prosecuting counsel has no right to a closing address against a Defendant who is not legally represented and has not given evidence or called witnesses. If it is intended that the practice in Magistrates Court be different it is better to make express provisions rather than relying on general terms or to pray in aid the Magistrates' Court Rules in England which have no application to Hong Kong.