HKSAR v. SUNG SIU KAM

HCMA1221/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1221 OF 2001

(ON APPEAL FROM WSCC 12031 OF 2000)

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J U D G M E N T

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1. The appellant was convicted on 12 November 2001 of one charge of theft and was sentenced to a fine of $2,500, together with costs of $2,000. She now appeals that conviction.

2. The first ground of appeal is that justice has not been seen to be done as a result of an exchange between defence counsel and the magistrate. Having heard all of the evidence and the prosecution having declined to address the court in respect of that evidence, the court called upon defence counsel, Mr Mitchell-Heggs, to address it on behalf of the accused. After Mr Mitchell-Heggs had addressed the magistrate for some time, this exchange took place :

"COURT : Are you nearly done, Mr Mitchell-Heggs?

MR MITCHELL-HEGGS : I'm sorry?

COURT : Are you nearly done ?

MR MITCHELL-HEGGS : Sorry, Sir, is that - well, Sir, I can take a hint along with anybody else. Thank you very much for that indication and I ask you to say that this defendant, ..."

3. Mr Mitchell-Heggs went on to briefly finish his submission and, upon completion of it, the magistrate convicted the appellant of the offence of theft. This exchange then took place :

"MR MITCHELL-HEGGS : Sir, I'm sorry. I'm sorry. I rise now, for the record, to protest. You, just now, a few minutes ago, misled...

COURT : Yes, I was...

MR MITCHELL-HEGGS : I'm going to finish what I'm going to say for the record.

COURT : No, Mr Mitchell-Heggs, you're not. Please sit down.

MR MITCHELL-HEGGS : Sir, you misled me into thinking ...

COURT : I did not...

MR MITCHELL-HEGGS : ... that I had said all that needed to be said and you indicated that I needed...

COURT : You were saying you had said all that you had to say.

MR MITCHELL-HEGGS : No, I hadn't finished. I had not finished my submission.

COURT : Sit down, Mr Mitchell-Heggs.

MR MITCHELL-HEGGS : I'm going to continue my submission here, Sir. I...

COURT : Mr Mitchell-Heggs, please...

MR MITCHELL-HEGGS : I ask you ...

COURT : Please sit down.

MR MITCHELL-HEGGS : I ask you to recuse yourself now.

COURT : Please sit down, Mr Mitchell-Heggs.

MR MITCHELL-HEGGS : I'm sorry, Sir, I ask you now to order...

COURT : You can take this up in another place if you choose ...

MR MITCHELL-HEGGS : No, Sir, you have a power of review.

COURT : No, I'm not inclined to exercise that power.

MR MITCHELL-HEGGS : I'm asking you now to exercise your power of review...

COURT : I refuse.

MR MITCHELL-HEGGS : I'm asking you - I'm going to say this for the record. I'm asking you to consider your power under section 104 to review your decision to convict and indeed my protest of your indication that misled me into thinking that I needn't say more. I wish to place it on record that because of your intervention, I decided not to continue my submission. I took your indication to mean that you were not going to convict.

COURT : You were mistaken.

MR MITCHELL-HEGGS : That's why I did not continue. I was misled by, Sir, your intervention, 'Are you finished?' you said and, 'Do you need to say more?' you said. And I was misled by that and I wish to make a protest right now that...

COURT : Yes.

MR MITCHELL-HEGGS : ... not that you intended to mislead me, of course I accept that, but was in fact misled.

COURT : Protest noted, Mr Mitchell-Heggs.

MR MITCHELL-HEGGS : Thank you, and now I ask you, in view of the circumstances of the fact that I was misled, to exercise your power under section 104 to order a trial de novo before another court and not to proceed any further.

COURT : I decline, thank you."

4. It is clear from this exchange between counsel and the magistrate that, firstly, the magistrate did nothing to cause in counsel a legitimate belief that he had made up his mind one way or another about the outcome of the case. To ask the question "Are you nearly done?" of counsel is no more than a request for an indication as to how long proceedings may take and it is a necessary part of case management conducted everyday in our courts, by magistrates and judges.

5. What is equally obvious, however, is that whilst the question asked by the magistrate should not have given rise to any belief on the part of counsel that the magistrate would find in his favour, that was what Mr Mitchell-Heggs believed.

6. The exchange that followed between the magistrate and counsel indicates very clearly that Mr Mitchell-Heggs did believe that he had been given a hint, and that he had curtailed his submission on behalf of the appellant because of what he perceived in that exchange. A number of important matters must be considered. Firstly, an application was made to the magistrate to recuse himself which was not answered by the magistrate. Secondly, an application was made by Mr Mitchell-Heggs that the magistrate exercise his power of review to receive the rest of the submission that Mr Mitchell-Heggs wished to make on behalf of the appellant.

7. It is regrettable that that application for review was based upon an error in the recollection of Mr Mitchell-Heggs as to what was said by the magistrate. The magistrate's words to him were "Are you nearly done, Mr Mitchell-Heggs?" The words relied upon by Mr Mitchell-Heggs in his application for review were, firstly, "Are you finished?" and secondly, the words "Do you need to say more?" The magistrate, knowing what he had said to Mr Mitchell-Heggs, was then faced with an application based upon words which he had not said. Given that the application was not founded upon accurate facts, it is not surprising that the magistrate rejected it.

8. The magistrate cannot be said to have had acted improperly, either in the question originally asked by him of Mr Mitchell-Heggs nor in his rejection of the application for review, upon the basis that it was put forward to him.

9. However, at the end of the day, the situation was that the appellant was placed in a position where his counsel wrongly believed that he had been given an indication of the magistrate's thinking. Subsequently, he based an application for review upon a wrong factual basis, and the appellant was placed in the position where the whole of her case was not put to the magistrate for his consideration.

10. None of these events can be laid at the door of the appellant, who nevertheless is the one to suffer from them. The appellant has been put it at a disadvantage as a result of events transpiring as they did, and it is my view that the disadvantages are sufficient to cast doubt upon whether justice has been done.

11. The appeal against conviction is allowed.