HKSAR v. NG SE MAN, MICHAEL

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.278 OF 1997

(On appeal from ESC 4991 of 1996)

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JUDGMENT

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1. The Appellant, NG Se-man, was convicted after trial on three charges of possession of private discs for the purpose of trade and one charge of possession of obscene articles for publication. In respect of each of those charges he was sentenced to 10 months' imprisonment to run concurrently. The Appellant now appeals against both the conviction and the sentence.

2. The allegation by the Prosecution against the Appellant was simple and straightforward, and those allegations were, in fact, not in dispute at the trial. He was seen, together with his co-accused, inside the counter at Shop 323 at this rather infamous 298 Computer Zone in 298 Hennessy road. The Appellant appeared to be soliciting customers by shouting, "If you want to buy them do so quickly or all will be sold out soon." In addition to shouting such words, he also gestured by waving his hands.

3. He was then arrested and upon being cautioned he, according to the Officer, asked for a chance. The exhibits, the subject matter of the charges, were then seized. There was no dispute about the obscenity or the privacy of such exhibits. The Appellant was subsequently taken back to the office of the Customs and Excise Department where he was interviewed under caution. It was agreed that he voluntarily made a statement. In that record of interview he admitted, in effect, that he went to the shop in question because he knew the salesman, whose name is Ah Wah. He didn't know his full name, he only knew him by this nickname of Ah Wah. He said he often went to the shop to patronise it.

4. He was then asked why he would be shouting to customers to attract them to patronise this shop. His explanation was that at that time he was just playing with Ah Wah. He was then asked why he asked for a chance when he was arrested and cautioned. He said at that time he was frightened. He also admitted that this particular shop was, in fact, selling private disc and the price for each of those private discs would be $40 to $50.

5. When the Appellant gave evidence he repeated basically what he said in that cautioned statement. He said he was going to the shop because he knew Ah Wah and he was trying to buy something from him. He did admit that he knew those discs were private copies and they were cheap. He also said he was joking with Ah Wah by shouting out loudly as he thought Ah Wah was shouting in a voice which he considered to be not loud enough, or too low. They were, in fact, according to the Appellant, competing with one another as to who could shout louder. He said he asked for a chance because he was scared. He denied that he was selling anything inside the counter at all.

6. As I said, it's fair to say that the Prosecution's allegation against the Appellant was not challenged. The only issue for the learned Magistrate to resolve was whether he accepted the explanation offered by the Applicant or whether such explanation could give rise to a reasonable doubt about the guilt of the Appellant. The learned Magistrate rejected the explanation offered by the Applicant and convicted him accordingly.

7. In this appeal, counsel for the Appellant raised two matters. Firstly, it was suggested that the learned Magistrate had entered into the arena by actually putting the Prosecution's case to the Appellant when the Appellant was being cross-examined. It appeared from the transcript that towards the end of the cross-examination of the Appellant by the Prosecutor, and when the Prosecutor was starting to put the Prosecution's case to the Appellant, the learned Magistrate seem to get somewhat impatient at the way in which the Prosecutor went about putting his case. He then took over by putting to the Appellant that he was, in fact, selling the private CDs in question.

8. While the learned Magistrate could have been more patient and that he should not have usurped the function of the Prosecutor as such, but it was perhaps sometimes not difficult to understand the anxiety of a busy magistrate in Hong Kong when the Prosecutor was perhaps not functioning as efficiently as one would hope, particularly on formal matters such as the putting of the Prosecution's case to a Defendant when he was being cross-examined.

9. Mr King relied on a case of Hulusi v Purvis, reported in 58, CAR, 378, where it was decided when an Accused gave evidence he must be allowed to do so without being badgered and interrupted as witnesses are liable to become confused and not to do as well as they would have done had they not been badgered and interrupted. No one can argue with such an observation. But to ensure that a case proceeds smoothly, a judge or a magistrate sometimes has to intervene by putting questions to witnesses, including an Accused.

10. Such intervention do not necessarily mean that a conviction is thereby rendered unsafe and unsatisfactory. The ultimate question for the consideration of an Appellate Court is whether the judge's or the magistrate's intervention or conduct is such that it would have caused an informed bystander who has listened to the case to say that the Defendant or Accused has not been given a fair trial.

11. Having considered the circumstances in which the learned Magistrate had put the Prosecution's case to the Appellant, I am not of the view that such a matter would cause any informed bystander listening to the case to say that the Appellant had not had a fair trial. So far as the appeal is based on this particular ground, it fails.

12. I now turn to a perhaps more interesting point. When the Appellant started to give evidence he chose to give his evidence on oath. Somehow, for reasons which were not readily known to this court, the learned Magistrate put a few questions to the Appellant about Jesus, as to his age when he died and where he was born, and then decided that the Appellant should not give evidence on oath. Instead he, in effect, ordered the Appellant to affirm, and then he also made the following observation after the Appellant had affirmed: "Please sit properly and don't ever take the oath on Bible irresponsibly again."

13. Mr King, on behalf of the Appellant, now complains that such behaviour on the part of the learned Magistrate constitutes irregularity and that such matters could be perceived as a factor in disbelieving the evidence of the Appellant. Section 5 of the Oath and Declaration Ordinance makes the following provision:

"An oath may be administered and taken in the following form and manner ..."

and then subsection (2):

"The officer ..."

that, of course, includes a Magistrate presiding over a criminal case ...

"... shall, unless the person about to take the oath objects thereto, or is physically incapable of so taking the oath, administer the oath in the form and manner aforesaid:

Provided that, in the case of a person who is neither a Christian nor a Jew, the oath may be administered in any manner which is appropriate to his religious belief."

And then Section 7 provides, in subsection (1):

"A person, upon objecting to being sworn, shall be permitted to make his affirmation instead of taking an oath for any purpose for which an oath is required by law."

14. It is clear from the wordings of Section 5 and Section 7 of the Oath and Declaration Ordinance that it is primarily for a witness, including an accused, to decide whether he wishes to give evidence on oath or on affirmation. There is no requirement under the Ordinance that a witness needs to be a believer of a particular religion or to know anything about Christianity before he can give evidence on oath in court. To that extent the learned Magistrate's approach in this regard was clearly erroneous.

15. Having said that, it doesn't mean that a judge or magistrate can have no control on this matter at all. In the case of Kemble, reported in (1990) 1 Crim. App. cases 178, the court had to consider if a Muslim witness, taking oath on the New Testament, was lawful when the witness himself had said that whether he had taken the oath upon the Koran or from the Bible or upon the Torah, he would have considered that to be binding on his conscience.

16. In dismissing the appeal the court took the view that the question of whether the administration of an oath was lawful did not depend upon what might be the considerable intricacies of the particular religion which was adhered to by the witness. It concerned two matters and two matters only. First of all, was the oath an oath which appeared to the court to be binding on the conscience of the witness? And if so, secondly and most importantly, was it an oath which the witness himself considered to be binding upon his conscience?

17. If the learned Magistrate, on objections being taken by the Prosecution and after proper inquiry, came to the conclusion that the Appellant was not a Christian and he did not know anything about Christianity and therefore his taking of an oath would render his oath appearing to the court not to be binding on his conscience, or that the oath was not one which he himself considered to be binding upon his own conscience, then the learned Magistrate could have intervened and prevented the Appellant from giving evidence on oath.

18. So far as this aspect of the case was concerned, there was no objections from the Prosecution when the Appellant elected to give his evidence on oath, which he was entitled to do so under the Oath and Declaration Ordinance.

19. The learned Magistrate had no basis to believe that his oath would not bind his conscience or that he did not consider such oath to be binding on his conscience. The learned Magistrate disallowed the Appellant to give evidence on oath solely on the basis that the Appellant was unable to answer the questions as to the age of Jesus when he died and his place of birth. As I said, in that regard the learned Magistrate was clearly in error.

20. But that, of course, was not the end of the matter. The court still had to consider further if such error on the part of the learned Magistrate rendered the conviction unsafe and unsatisfactory.

21. As I've indicated, the case against the Appellant turned solely on the credibility of the Appellant; whether his explanation gave rise to any reasonable doubt about his guilt. The episode of the learned Magistrate questioning the Appellant on his knowledge about Jesus and then preventing him from giving evidence on oath to an informed bystander could have given rise to a perceived prejudice against the Appellant, despite the learned Magistrate expressly declaring that he had not taken such matters into consideration in finding the Appellant guilty of the charges.

22. Such a view was perhaps reinforced by his comment in the course of his reasons for convicting the Appellant, that the Appellant would soon have ample time to learn about when Jesus died and where he was born. Such comments were clearly uncalled for and should never have been said. If the learned Magistrate had approached the matter from a proper perspective instead of dwelling on irrelevant matters, his view on the credibility of the Applicant might well have been different.

23. By reason of the matters that I have outlined above, I am persuaded that the convictions against the Applicant in the circumstances were unsafe and unsatisfactory. The appeal is therefore allowed. The convictions are quashed and the sentences are set aside. The court makes the order accordingly.

(Discussion re costs)

24. The background of this matter clearly indicates that the Applicant had brought great suspicion upon himself which is the reason why he was charged, and in my view the appeal is allowed on perhaps some technical matters. This is not a proper case to award costs in favour of the Appellant. The application is therefore refused.