HKSAR v. CHAN KAM FAI

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 893 OF 1997

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J U D G M E N T

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1. This is an appeal by the Secretary for Justice by way of case stated against a Magistrate's decision to stay proceedings pursuant to S.105 of the Magistrates Ordinance Cap 227.

2. The Respondent was charged with 2 counts of aiding and abetting the remaining of an illegal immigrant in Hong Kong without the authority of the Director of Immigration contrary to S.89 of the Criminal Procedure Ordinance Cap 221.

THE PROSECUTION'S CASE

3. The case against the Respondent is that on the 28th February 1996 Immigration Officers acting on information arrested two Chinese illegal immigrants at Oi Man Restaurant in Lau Fau Shan. The Respondent was the owner of the restaurant and was present when the illegal immigrants were found at that premises. The two illegal immigrants admitted they had entered Hong Kong illegally from China on 26th February 1996 to visit the Respondent and had since remained in the restaurant. The Respondent under caution admitted he was a friend of the two illegal immigrants and was aware of their illegal immigrant status. Despite of his knowledge he still provided them free board and lodging at his restaurant.

EVENTS BEFORE TRIAL

4. The Respondent was charged on 22nd March 1996 and Brief Facts of the case was prepared on 25th March 1996.

5. The two illegal immigrants were repatriated before the Respondent was charged.

THE TRIAL

6. The Respondent appeared before PC White Esq. to stand trial at the Western Magistracy on 21st June 1996.

7. At the hearing, before evidence was called, the Respondent applied for stay of proceedings on the ground that the Respondent had never seen the two illegal immigrants before and they were just casual visitors to his restaurant. The cautioned statement was a pack of lies. The absence of the illegal immigrants deprived the Respondent the chance to cross examine them. The Respondent had no opportunity to apply for their detention. Their absence amounted to an abuse of process and had deprived the Respondent of a fair trial.

8. The learned Magistrate's reasons for his decision were as follows:-

"I, noted that the prosecution had opened its case in its "Brief Facts" on the basis that the two illegal immigrants were available. On the basis of my consideration of the contents of each of their statements during the discussion of the issue, as well as the Respondent's defence, I was of the opinion that it had been established prima facie that their evidence was likely to be material to the defence case, on the general issue as well as to the issue of the credibility of the prosecution witnesses on the special issue. In these circumstances and having regard to the fact that the only significant evidence against the Respondent was his cautioned statement, the admissibility of which was in dispute, I concluded that the repatriation of the two illegal immigrants had caused irretrievable prejudice to the Respondent. I therefore granted the application to stay the proceedings and dismissed the charges accordingly."

GROUNDS OF APPEAL

9. The Ground of Appeal is that the learned Magistrate erred in law in

(1) deciding to stay the proceeding without holding a due inquiry and/or

(2) holding that the absence of the two illegal immigrants caused irretrievable prejudice to the defence case.

10. Mr. Lo for the Appellant contented that the learned Magistrate should consider the contents of the cautioned statements of the illegal immigrants and the Respondent and all the other relevant evidence before coming to that decision.

11. In A.G. v. Ma Chiu Keung [1988] 2 HKLR 64 the prosecution proceeded with the charge of that robbery in the absence of the victim and sought to rely solely on the admission in the cautioned statement. Defence counsel expressed his wish to question the victim as to her description of the robbers and challenge the admissibility of the cautioned statement. The trial judge acknowledged the importance of the victim's evidence and questioned whether the prosecution could rely solely on a cautioned statement the admissibility of which is challenged and dismissed the charge. The A.G. appealed by way of case stated and the Court of Appeal held, inter alia, that

(1) while a trial judge had an inherent discretion to terminate a trial if it was considered that the absence of a victim would prevent a fair trial, the adoption of such course should not be undertaken without the due enquiring. The matters a judge would need to consider, to assist himself in the exercise of his discretion, varied according to the circumstances.

(2) ... the trial judge, although making laudable efforts to have the case brought on for trial was in error in adopting the pre-emptive course of dismissing the charge without holding a preliminary hearing.

12. The learned Magistrate from reading the Brief Facts formed the view that the two illegal immigrants were available to give evidence. He then considered the contents of their cautioned statements and the defence case that the two illegal immigrants were just casual visitors he concluded the two illegal immigrants evidence were likely to be material to the defence case on the general issue as well as to the issue of the credibility of the prosecution witnesses on the special issue and their absence had caused irretrievable prejudice to the Respondent.

THE EFFECT OF THE EVIDENCE OF THE ILLEGAL IMMIGRANTS ON GENERAL ISSUE

13. The illegal immigrants under caution admitted that they were friends of the Respondent who knew they were illegal immigrants and had stayed in his restaurant for 2 days. Had they stayed on to give evidence according to what was stated in their cautioned statement I cannot see how their evidence could be in favour of the Respondent. On the contrary it was most damaging to the Respondent and no irretrievable prejudice could have been caused to him. Assuming that they give evidence which is directly in conflict with the cautioned statement no doubt they will be cross examined about their previous inconsistent statements and their evidence cannot carry much weight. Taking the scenario most favourable to the Respondent, still there is no prejudice to the Respondent.

THE EFFECT ON SPECIAL ISSUE

14. As to the special issue, the cautioned statements of the two illegal immigrants and the Respondent were taken by three different immigration officers separately. I cannot see how their evidence can be material to the defence case on the issue of credibility on the special issue.

WAS THERE SUFFICIENT EVIDENCE TO CONVICT

15. There is nothing to prevent the learned Magistrate to proceed to hear and determine the special issue of voluntariness of the Respondent's cautioned statement and the general issue of whether the Respondent committed the offences charged. If he is satisfied that the Respondent made the cautioned statement voluntarily and that the contents were true then there is sufficient evidence to convict.

INJUSTICE & PREJUDICE

16. Injustice can work both ways. This is a factor which a judge must bear in mind when considering the exercise of his discretion. (A.G. v. Ma Chiu Keung & another p.69 letter I) The burden is on the Respondent to show that the absence of the two witnesses is likely to preclude a fair trial. It is for the Respondent to show or to say what the two illegal immigrant would say. There is no suggestion that the Respondent's lawyers had attempted to interview these two witnesses. In the absence of any statement from those two witnesses it is purely speculation that those witnesses would support the Respondent's allegation that they were mere casual visitors. It is important for Respondent to show that if the illegal immigrants were to give evidence it would more likely than not tend to assist the Respondent. There is no such suggestion. In R. v. D.A. [1992] 76 CCC (3rd) 1 at 8h (Ontario CA per Dubin CJO) "There must be an air of reality that the missing evidence would in fact and in a material way assist the accused."

17. Mr. Buchanan for the Respondent referred to R. v. Holgate [1996] 3 HKC 315. The facts of this case is different from Holgate's case in that in the present case the missing witnesses had made statements and the Respondent had also admitted under caution.

18. He also referred to R. v. Ng Ming [1994] 3 HKC 320. Again the facts of this case is different from Ng Ming's case. In that case the Magistrate was informed that the illegal immigrants wished to be witnesses for the defence and defence had requested the Magistrate to write a letter to prevent their repatriation so as to ensure their presence at the trial. In the present case there was no such request. There is no suggestion that the prosecution had knowledge of the Respondent's intention to call the two illegal immigrants as witnesses.

19. In R. v. Derby Crown Court ex p. Brooks [1984] 80 Cr App R 164 at 168 Sir Roger Ormrod LCJ stated "The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the Defendant of a protection provided by the law or to take unfair advantage of a technicality or (b) on the balance of probability the Defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable ..."

20. Having gone through the evidence available before the learned Magistrate I am of the view that he had not undertaken due enquiry and that the absence of the two illegal immigrants could not have caused irretrievable prejudice to the defence case.

21. The Department of Justice now appeal by way of case stated from the decision of the learned Magistrate the question posed for my consideration is:

"Was I correct in holding that in the absence of the two illegal immigrants, the presentation of the defence was irretrievably prejudiced and that in these circumstances I should order a stay of proceedings"

22. I consider the learned Magistrate had been in error in taking the pre-emptive cause he did and had failed properly to exercise his discretion. I would answer the question posed in the negative.

23. Finally I note that this case was before the learned Magistrate on 21st June 1996 and the case stated was signed by him only on 19th September 1997 i.e. 1¼ years after the hearing. It should be done more expeditiously as undue delay may cause injustice to both the prosecution and the Defendant by way of preservation of evidence and the availability of witnesses in some cases though not likely in the present case.