HKSAR v. SUNG LAI KWAN

HCMA168/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.168 OF 2001

(ON APPEAL FROM NKCC 194 OF 2001)

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J U D G M E N T

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1. The appellant was charged with theft of a mobile phone. She denied the offence and was convicted after trial. She appealed against the conviction. At the trial, the appellant was unrepresented whereas on appeal, she was represented by counsel.

2. The prosecution case was simply that on the material date in Tung Choi Street, two off-duty police officers had seen the appellant unzipping a pedestrian's backpack and took out a mobile phone before walking away. One of the officers immediately followed and told the appellant to stop. The appellant continued to flee and in doing so, she threw the telephone onto the ground. The appellant was eventually caught by the police. The appellant, who had a clear record, also testified. She said that she had gone to the area to do some shopping. After she had purchased a T-shirt, a man approached and apprehended her. There was no chase as the police suggested and that she had not unzipped anyone's bag at the time. She said she was framed by the police.

3. The learned magistrate concluded that he did not believe the appellant and her evidence cast no reasonable doubt on the reliability of the prosecution witnesses. He also stated the following in his Statement of Findings :

"8. It was unfortunate that the telephone was never found and that the owner of the telephone could not be called but I had no doubt and found it proved that :

(1) The appellant had taken a mobile telephone from the back pack of another female pedestrian in Tung Choi Street at the time and date alleged.

(2) Having done so the appellant had left the scene.

(3) She had fled when called upon to stop and.

(4) Had thrown the telephone away during the chase.

I found the irresistible inferences to be that :

(a) The owner of the telephone had been a stranger to the appellant and had not consented to such taking.

(b) the appellant had acted dishonestly with intent to steal.

(c) the appellant had intended to permanently deprive the owner of the item. I convicted the appellant of theft accordingly."

4. In the amended grounds of appeal, counsel for the appellant had proposed a total of four grounds. The first related to the complaint that the learned magistrate had failed to provide adequate assistance to the unrepresented appellant, the second was that the magistrate was wrong in law to state that a "reasonable" doubt was required to cast doubt on the reliability of the prosecution evidence. Counsel submitted that "some" doubt would have been sufficient. The third matter was that the magistrate's interference at the trial had given the impression that he had descended into the arena by taking over the conduct of the prosecution. The last complaint was that the magistrate had failed to allow the appellant the opportunity to call the victim to testify.

5. Regarding these matters, counsel had further explained them in his written submissions. I must say that the 2nd and 4th grounds were clearly unarguable. In my view, it was a misconception to say "some" doubt, and not "reasonable doubt", was sufficient for the magistrate to reject the prosecution case. Counsel was unable to refer me to any authority that supports his contention. As to the issue of the calling of the witness, what transpired was that the victim had already returned to Taiwan. The prosecution informed the magistrate that they would not be calling her and they would amend the charge instead. In the circumstances, it was unrealistic to say the magistrate should have given the appellant the opportunity to call the victim as a defence witness. I do not accept that the magistrate was obliged to do so, especially when there was no such application from her. While the magistrate should assist an unrepresented defendant, he is not the defendant's counsel.

6. However, I was, as I said in the brief oral reasons, somewhat concerned with the other two grounds. One of the specific matters raised by counsel under ground one was that the learned magistrate had failed to ensure the appellant was fully and properly appraised of her right before deciding whether to testify or to remain silent. Counsel argued that the appellant should be advised that no adverse inferences could be drawn as a consequence of her decision. Some authorities were cited in this regard. (See R v. Andrews [1938] 4 All ER 12, R v. Carter [1960] 44 Cr App R 225, cited in Blackstone 2001 - D14.9)

7. The particular part of the transcript that counsel referred to was the stage when the prosecution had completed the prosecution case. (see transcript, page 49) The record shows that the learned magistrate had told the appellant the following :

"COURT: Case.

That is the evidence the prosecution intends to adduce. There is enough evidence for the trial to proceed further.

Before I reach a decision on your guilt or innocence, you will have the opportunity now to give evidence on your own behalf. Whether or not you wish to give evidence yourself, you may call another to testify as a witness in the matter. Before I ...

DEFENDANT: I don't quite understand.

COURT: Sorry, before I invite you to do that, it's alleged -sorry, it's alleged that she said something. Well, I haven't heard that she said any admissions.

MR CHAN: No.

COURT: No.

Yes, what do you want to do?

DEFENDANT: I elect to give evidence.

COURT: All right. Wait. I'll take a ten-minute break."

8. It was apparent that the magistrate was at one time distracted about the issue of admissions. When he returned to the question of the appellant's election, he proceeded to ask what she wanted to do, instead of trying to clarify what the appellant meant by "I do not quite understand". Sometimes there could be a defendant who deliberately tries to be difficult and insists that he does not understand despite repeated explanation from the magistrate. But it did not seem to be the case here or at least one could not say the appellant was obvious trying to be difficult at that stage.

9. In the circumstances, I am of the view that the trial magistrate should have made enquiry in order to find out what was it that the defendant had difficulties understanding. In order to put the matter into its proper context, I had adjourned the hearing and obtained further transcript. As I understand, it is really a standard procedure in the magistracies for a magistrate to explain the trial procedure and the rights to an unrepresented defendant before the commencement of the trial. If the magistrate had given that set of explanation at the very beginning of the trial, then this appellant's subsequent suggestion of not understanding might be less unacceptable. However, the report came back stating that there was in fact no other explanation given to the appellant before the trial.

10. In a way, one could argue that the prejudicial effect of a defendant who elected to give evidence without fully understand his rights would be less significant when compared to the defendant who chose to remain silent. In the latter case, his lack of understanding had deprived him of the opportunity to testify, whereas in the former case he had no cause of complaint as his evidence was simply not accepted by the court. Can it be said that this appellant is in the same position?

11. I had given the matter some thought. I came to the view that the defendant's understanding of his rights, before choosing which course of action to take, is an important matter. Any such decision made should be an informed decision. And if the defendant is not legally represented, it would be incumbent on the trial magistrate to explain what the rights entail. It would not be appropriate to speculate as to what the appellant would elect to do and whether the outcome of the trial would be any different had the learned magistrate gave her a proper explanation. In these circumstances, I considered that the learned magistrate should have responded to her query and where necessary, to give the appellant further explanation so that she could make a proper decision.

12. As to the ground of interference, the transcript does show that the learned magistrate had spoken on numerous occasions during and at different stages of the trial. I found that the magistrate's interference while PW1 was testifying was done with the purpose of guiding the evidence-in-chief and the cross-examination. I saw no problem in this regard. However, when it was PW2's turn to testify, the learned magistrate did appear to have taken over the evidence-in-chief and, to some extent, even the cross-examination. A possible explanation for this situation could be that PW2's evidence was very similar to PW1's account and therefore the magistrate simply wanted the trial to press on quicker. Whilst I appreciate the magistrate's desire not to waste time, there was a limit to what he should do, otherwise, the appellant or a third person, might gain the impression that the magistrate was prosecuting the case for the prosecution. There were also quite a number of interferences by the magistrate when the appellant was being cross-examined. That did not assist the supposedly impartial role and neutral image of a trial magistrate.

13. In the circumstances, despite the respondent's submissions to the contrary, I had decided to allow the appeal on conviction. However, having heard both sides, I would allow the application by the respondent for a re-trial of the case.

14. Hence, I shall order that the case be sent back to the magistracy for a new trial before another magistrate.

15. The appellant would be given bail pending her re-trial.