SECRETARY FOR JUSTICE v. FAN KIN CHUNG

CACC 381/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 381 OF 2002

(ON APPEAL FROM DCCC 1138 OF 2001)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. This matter comes before us as an appeal by the Secretary for Justice (the Appellant) by way of case stated, pursuant to the provisions of section 84 of the District Court Ordinance, Cap. 336.

2. On 21 March 2002, the Respondent was acquitted of burglary in the District Court and awarded his costs by Deputy Judge A. Chan after he had ruled that there was no case for the Respondent to answer. This was done before the prosecution had formally closed its case, when only 7 out of the 8 witnesses they had wished to call had given evidence.

3. The question of law which is posed for our opinion is whether the judge "erred in law in stopping the proceedings before the last witness was called".

4. The charge against the Respondent alleged burglary at Flat B, 5th Floor, Fuk Lee Building, 1-7 Shell Street in North Point and stealing $2,120 therein. The central issues at trial were, firstly, whether the Respondent was a trespasser when he entered the premises and, secondly, whether he was stealing the money he took from the flat. There was no dispute that the Respondent entered the flat in question or that he had taken possession of money which had been kept at the flat.

The facts

5. The Respondent was arrested after three police officers who had been patrolling in Shell Street became suspicious of the Respondent when they noticed his manner as he went into Fuk Lee Building. The Respondent then took the lift to go upstairs.

6. Following a discussion with the caretaker (PW4), who had seen the Respondent as he entered, the officers (including PW7) went up to Flat B on the 5th Floor and found that the iron grille and the wooden door to the flat were both open. Looking inside, PW7 could see the Respondent taking banknotes from a drawer in the bedroom wardrobe. As the Respondent left the flat, taking with him $2,120 from the drawer, he was stopped and questioned. The Respondent explained that he had been instructed by Wong Kam-woon (PW6), who lived with his wife at the flat, to collect the cash from the drawer and to bring it to PW6's herbal tea shop which was nearby.

7. There were eight keys in the Respondent's possession on arrest. Amongst these, were keys to the iron grille and the wooden door of PW6's flat. One further key fitted the door to PW6's herbal tea shop.

Trial proceedings

8. At trial, the prosecution sought to disprove the Respondent's explanation for taking money from the flat. They called not only PW6 but also his wife, Madam Tse Yuk-lan (PW1), to deal with this issue.

9. PW1 said that she had known the Respondent and his father for many years. She often played mahjong with him. The Respondent occasionally helped out in their herbal tea shop. She and the Respondent were like sister and brother. She had given the keys to her premises to the Respondent in August, 2001 when she and her husband were going on holiday to Thailand so that the Respondent could look after their children. She did not know whether the Respondent returned the keys to her after her holiday. Initially, when giving evidence-in-chief, she said that she did not remember whether she had authorized the Respondent to make copies of the keys, but later she said that she had not given him permission to do so. She said that she kept the cash from the business takings in a drawer of the wardrobe. She did not give the Respondent permission to go to her premises on the day of the offence and take money from the drawer.

10. However, when she was cross-examined, PW1 said that she could not remember whether she had given any authorization to the Respondent to make copies of the keys or whether she had given permission to the Respondent to go to her premises to take the money in question.

11. In re-examination, prosecuting counsel, without any application to treat PW1 as a hostile witness, then showed PW1 her statement to the police which was no doubt consistent with the inculpatory parts of her evidence-in-chief. She confirmed, as counsel had invited her to do, that it was true but she added that when the statement was taken she did not mean to be "serious" about its contents.

12. PW2 and PW3 were the daughters of PW1. They merely confirmed that they had neither given the keys to the flat to the Respondent nor authorized him to take money.

13. The caretaker of the building (PW4) said that he was greeted by the Respondent after he had rung the bell to be let in. PW4 said that there was nothing abnormal or suspicious about the Respondent's manner.

14. PW5's evidence did not relate to the prosecution's case directly. He was merely called to deal with a witness summons which had been served on PW6 as it had seemed, at the stage when PW5 was called, that PW6 might not appear at court to give evidence.

15. In the event, PW6 did attend. He said that he had known the Respondent for a long time. He did not remember whether he had given the Respondent permission to take money from the premises on the day of the alleged offence. Again, there was no application to treat him as hostile but the prosecutor nevertheless showed PW6 the statement he had made to the police, which we can safely assume to have been inculpatory, and asked him if it was true. PW6 said that he could not recall.

16. PW7 was the officer who saw the Respondent open the drawer and take the money.

17. The prosecution then wished to call their last witness (PW8), a police officer, to support PW7's version and to testify about a conversation he had had with PW6. According to the case which the judge has stated, it was at that stage that he stopped the prosecution from calling PW8. Instead, he invited prosecuting counsel to justify the calling of this witness. Having heard counsel give his reasons, the judge expressed the opinion that the calling of PW8 would not advance the prosecution's case. He gave three reasons for this. Firstly, the conversation between the proposed witness (PW8) and PW6, which was said by counsel to relate to permission to enter the premises, was of "insignificant relevance" and would not have been admitted to prove the truth of its contents. Secondly, the Respondent's alleged suspicious behaviour had been refuted by PW4. Thirdly, the Respondent did not deny taking the money in question.

18. The judge considered that any continuation of the proceedings would amount to an abuse of process as nothing was to be gained by calling PW8 and this could only lead to a wastage of legal costs and court time. In the Case Stated, dated 26 July 2002, the judge set out the essence of his approach in the following way:

"I was of the opinion that taking the prosecution case at the highest, given the uncertain nature of both PW1 and PW6's evidence on the crucial issues, the prosecution could not possibly prove that the Respondent entered there as a trespasser and that he was there to steal. It was therefore my duty to stop the trial once it was apparent that no further evidence could cure the defects in the prosecution case would be called."

19. Having given the prosecutor the opportunity to address him, it was then that the judge ruled that there was no case for the Respondent to answer.

The appeal

20. Mr. Grenville Cross, SC, submitted that we should answer the question posed in the Case Stated in the affirmative by finding that the judge had erred as a matter of law in stopping the proceedings before PW8 could be called. Originally, in his written submission, he had indicated that he wished this Court not only to reverse the verdict but also to quash the costs order which had been made in favour of the Respondent and to direct that the Respondent be retried before another judge.

21. This approach needs to be set against the fact that this prosecution had fallen apart and lay in tatters as the judge, in rather milder terms, had indicated. Despite attempts by the prosecutor to revive a failing case by the introduction, which should not have been permitted, of prior inconsistent statements, PW1 and PW6, who were the only witnesses in a position to say that the Respondent was a trespasser who had stolen their money had, when the effect of the whole of their testimony is considered, failed to do so. In such circumstances, without other evidence to prove these two essential ingredients of burglary, no reasonable judge or jury could sensibly have convicted.

22. As the prosecution's case in the District Court had to all intents and purposes collapsed, we enquired whether, in the event that we were minded to allow the Appellant's appeal, it was still being suggested that the Respondent should undergo a retrial before another judge. Mr. Cross replied that he had informed the Respondent's legal representatives that, in the event that the case was remitted to the District Court, pursuant to the terms of Section 84(4) of the District Court Ordinance, the prosecution intended to offer no evidence once the Respondent had re-entered a plea of Not Guilty. The judge, before whom the case was listed, would then be invited to enter a verdict to that effect. Mr. Cross conceded, in this context, that "obviously (PW8's) evidence would not have taken the case very much further at all".

23. It can be seen, therefore, that this appeal amounts to a storm in a teacup with leading counsel for the Appellant accepting that the acquittal was properly recorded on the evidence as it stood, and effectively conceding that the remaining evidence would have contributed nothing which could materially have affected the case, assuming the judge had permitted PW8 to be called.

24. Nevertheless, in pursuing this appeal, Mr. Cross saw fit to provide us with no less than nineteen authorities to establish three principles which are not in dispute. Firstly, he suggested that unless a prosecutor is abusing the process of the court or is seeking to introduce irrelevant or inadmissible evidence, it is improper for a judge prematurely to make up his mind as to whether or not there is a case to answer before the court has had the opportunity to hear the whole of the evidence which the prosecution intends to adduce. His second unassailable contention was that in a criminal trial, fairness applies as much to the prosecution as it does to the defence. The third equally undisputed proposition was that it is for the prosecution, and not the judge, to decide which witnesses should be called subject always to relevance, admissibility and to prosecuting counsel not abusing the process of the court.

25. None of the nineteen cases cited by Mr. Cross bore close factual resemblance to the situation which had arisen in the present case and we propose to make no reference to any of them. Putting these propositions into context, the judge in the present case had seen the obvious demise of the prosecution's case and had realized that whatever PW8 said, his evidence could not have restored the prosecution's case on the two vital ingredients of the charge once PW1 and PW6 had failed to come up to proof.

26. The judge was also aware that the time was fast approaching 4.30 pm on what we have been told was the first day of trial. If the matter was adjourned until the next day for what would have seemed, to any sensible tribunal, to be the inevitable outcome of the case, the Respondent would then have found himself facing a further day's legal costs. In a wholly realistic way, the judge enquired what purpose was to be served in calling the second police officer (PW8). The response he received indicated that counsel wished to use PW8 to corroborate PW7 and the prosecutor went on to say:

"(Counsel):	Your Honour, this next officer is the officer who had the conversation with the house owner .....
(Court):	Yes.
(Counsel):	... about whether or not permission was given.
(Court):	Yes.
(Counsel):	And also ...
(Court):	And how is that going to assist you?
(Counsel):	Well, indirectly it may, your Honour. Indirectly it may.
(Court):	I tell you why, because I incline at this stage to stop the proceedings.
(Counsel):	Yes, well, your Honour, I think that to support the prosecution case that the defendant was caught in the act of taking the money rather than the version put by the defence is important."

27. Quite obviously, counsel had made out a most unconvincing basis for calling PW8. Such support as that witness might have given to PW7 was, in the light of the evidence of PW1 and PW6, not going to make any difference to the outcome of the case. Mr. Cross made the point in these proceedings, while accepting that he was "speculating", that what the prosecutor may have had in mind when referring to the "conversation with the house owner" was more than merely hearsay. Mr. Cross, on a matter upon which he had never focused in his written submission, stated that it was likely that the prosecutor would have had it in mind to ask the witness (PW8) if the occupier of the flat (PW6) had made an allegation of burglary in the Respondent's presence. This was because, we were informed, PW6 had in fact been asked to come to the flat after the Respondent had been arrested. As to this, we observed that PW6 had not been asked about this during the course of his evidence and that PW8 had said nothing about it in his witness statement. However, Mr. Cross said that PW7 had touched upon the matter when he stated, in answer to the prosecutor's questions, that his colleague (PW8) had told him, in the Respondent's presence, that "the owner had not given permission" and that the Respondent had not made any comment.

28. Mr. Cross' point, put shortly, was that however flimsy the additional material might have been, if it made any contribution to the strength of the prosecution's case, or might have done, the judge was duty- bound to hear it and to keep an open mind until he had heard all the evidence. He added that the judge's comment that PW4's refutation of suggestions of suspicious behaviour rendered the calling of PW8 otiose, evidenced an incorrect approach because a prosecutor is not hidebound by the evidence of any one witness.

29. We have very little sympathy for arguments that rely on points which have so little regard to true context and the practicalities of the actual case. On the evidence the judge had heard, the Respondent was bound to be acquitted. In practical terms, the additional evidence that might have been given by PW8 would, as Mr. Cross has accepted, have been more or less worthless. At its highest, it might have shown the Respondent to have remained silent in the face of an allegation of burglary made by PW6 at a time when a response was to be expected. We note in this regard, however, not only the evidence of PW1 and PW6 but also the fact that the Respondent had already reacted with an exculpatory account when first challenged by the police.

30. Nevertheless, Mr. Cross is right when he submits that if relevant and admissible evidence remains to be called by a prosecutor who wishes to adduce it, the judge cannot prevent this unless the conduct of counsel amounts to an abuse of the process of the court. Such an example, not far removed from the facts of the case, would occur where the allegation against a defendant clearly depended wholly on the evidence of a complainant who had failed to support the allegation made in the charge but, in spite of this, all the remaining evidence is called by a prosecutor in the knowledge that it could not possibly make any difference to the outcome of the trial. Indeed, in such circumstances, the evidence would almost certainly also fail the test of relevance and it is hard to imagine that prosecuting counsel would ever engage in conduct of that kind.

31. The question, therefore, that we have had to ask ourselves is whether the prosecutor in the present case was abusing the process of the court when he insisted on calling PW8.

32. Since in this case it cannot, on balance, be said that PW8's evidence was immaterial to the central issue, we do not think we can go so far as to say that the calling of this one extra witness would actually have been an abuse of process. It follows that, strictly speaking, the judge ought not to have stopped the proceedings when he did, although counsel's insistence on proceeding was stubborn, to say the least, presented as he was with evidence that had patently failed to come up to the case which he had presented when opening. It seems that in spite of the stark reality of his situation, he must have decided to persist, perhaps through frustration, instead of accepting the obvious good sense of the judge's approach.

33. In this context, it is not out of place to remind prosecuting counsel, who in this case happened to be instructed on fiat and was highly experienced, of what is contained in 'The Statement of Prosecution Policy and Practice' issued by the Department of Justice which reads:

"13.1

Once a prosecution has been instituted, the prosecutor is under a duty to ensure that its continuation remains in the public interest. If circumstances change, or if new material comes to light, the prosecutor may have to review the prosecution. If it becomes apparent that it is no longer in the interests of justice to proceed with the case, it should be stopped. Alternatively, the prosecutor may decide that it is appropriate to proceed on amended or alternative charges."

34. It appears, as Mr. Cross seemed to have accepted, that the true spirit of this directive had unfortunately, on this occasion, been overlooked by a prosecutor who had failed to give heed to its objectives when he refused to give way to the judge's obvious good reason, common sense and even-handed fairness. Moreover, there were indications of the prosecutor's irritation earlier in the trial when, no doubt in a last ditch attempt to revive a fast failing case, he put to PW1 and to PW6 their previous statements and thereby introduced evidence by a means which was neither acceptable nor permissible.

35. We are extremely surprised that the Appellant has chosen this case upon which to test this particular issue of principle. In doing so, Mr. Cross has, with respect, trivialized an important principle on which there already exists ample authority. Rather than sitting back, nodding at counsel's every whim, this judge acted with commendable concern for a realistic and expeditious disposal of the case. Nevertheless, to the extent that the prosecution's final witness (PW8) might have been able to give marginally material evidence, following Mr. Cross' speculative path of reasoning that the Respondent may have been shown to have remained silent in the face of an allegation from PW6 which could only have been discovered if PW8 had been called, we are reluctantly compelled to the view that the judge's decision to refuse to allow PW8 to be called and, to this limited extent, prematurely to acquit the Respondent after the prosecutor had made his submissions, was strictly speaking a breach of principle. It follows that an answer in the affirmative must be given to the question posed in the case stated, namely, whether the judge erred in stopping the proceedings before the final witness was called.

Disposal

36. This leads us next to a consideration of what should now be done. Under the procedure laid down in Section 84 of the District Court Ordinance, the following is set out:

"84. Appeal by way of case stated

An appeal shall lie at the suit of the Secretary for Justice to the Court of Appeal against a verdict or order of acquittal, which shall include any order quashing or dismissing a charge for any alleged defect therein or want of jurisdiction. Such an appeal shall relate to matters of law only and the following procedure shall apply thereto－

(a) .....

(b) .....

(c) at the hearing of the appeal, whether or not the respondent appears, the Court of Appeal shall－

(i) if is is satisfied that there is no sufficient ground for interfering, dismiss the appeal; or

(ii) reverse the verdict or order and direct that the trial be resumed or that the accused be retried as the case may be, or find him guilty, record a conviction and pass such sentence on him as might have been passed on him by a judge; and

(iii) give all such necessary and consequential directions as it shall think fit." (Emphasis added)

37. Mr. Cross contended that if the question of law posed was answered in the Appellant's favour, the court would be duty-bound to reverse the verdict and direct that the trial should be resumed or, alternatively, to direct a retrial. Since in this case, the Appellant does not wish to prosecute the Respondent further, he invited us to direct a retrial, and he undertook that when the matter came again before the District Court no evidence would be offered against the Respondent. In support of his contention he cited the fact that in Attorney General v. Ip Chong-kwan and others [1978] HKLR 141, the Court of Appeal remitted a case to the first instance tribunal while, at the same time, expressing the strong hope that the prosecution would not proceed. It seems to have been assumed in that case that the court had no choice except to remit the matter, and there is no suggestion that this issue was ever argued.

38. It would be odd if this section deprived the court of the same power given by section 83 of the Criminal Procedure Ordinance to apply a vehicle in the nature of a proviso where it has been shown that no miscarriage of justice has occurred, and in our judgment the court is not, by the terms of section 84, bound to make an order under section 84(c)(ii) whenever the stated question of law is answered in an appellant's favour. An appeal under section 84 is, in the final analysis, an appeal against a verdict or an order of acquittal.

39. Since, under the section, such an appeal relates to matters of law only, it necessarily follows, and the section requires, that "the grounds on which the proceeding is questioned for the opinion of the court" should be stated. The section therefore requires the court to address, firstly, the point of law raised and, secondly, and only then, its impact on the "verdict or order of acquittal".

40. Section 84(c)(i) specifically addresses the verdict or the order of acquittal and requires the court to consider whether there is "sufficient ground for interfering" with the verdict or order. It does not follow that where the point of law stated is decided in favour of the appellant, there is necessarily sufficient ground for interfering with the verdict or order, and the use of the word 'sufficient' is no doubt deliberate. It it were otherwise, it would mean that wherever a case stated has raised a point of law in respect of which the judge has made an error, the court would be bound to make an order under section 84(c)(ii) even where it could be demonstrated that there were sound reasons for the verdict or order of acquittal to stand.

Conclusion

41. For the reasons we have given, it is our opinion that no sufficient ground for interfering with the judge's verdict of acquittal has been demonstrated.

42. Accordingly, the appeal is dismissed and the orders made in the District Court will stand.