ATTORNEY GENERAL v NG HOK MING

M.A. No. 1360/88

HEADNOTE

Case stated - Magistrate indicating to prosecutor after reading summary of facts that costs likely to be awarded against prosecution if case proceeded - Undesirable and dangerous practice to be discouraged and avoided at all costs - Appeal dismissed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1360 of 1988

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J U D G M E N T

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1. The facts which give rise to this appeal by the Attorney General are set out in the case stated.

2. On 1st August 1988, the respondent appeared before Mr Banks, a magistrate to answer a charge of careless driving. The respondent was represented by counsel and by consent a summary of facts prepared by the prosecution was submitted together with a sketch plan by way of opening. Having read the summary, the magistrate referred to a decision of Bewley J to the effect that courts should be loathe to convict in careless driving cases where there was no evidence from the road user allegedly inconvenienced and indicated to the court prosecutor that it was likely that costs would be awarded against the prosecution if he elected to proceed. The prosecutor sought advice from the Legal Department and having done so applied to the magistrate to discharge himself from hearing the case. This the magistrate refused to do. He considered the application to be impertinent and ill-conceived as he had not heard any evidence and could not therefore be prejudiced. He was aware that the summary of facts was not evidence.

3. He proceeded to hear two case. The sole prosecution witness was a police constable who was not cross-examined. He upheld a submission of no case to answer and acquitted the respondent. He also awarded costs against the prosecution.

4. The question of law for determination is whether the magistrate erred in law in declining to discharge himself from frying the case?

5. Mr Cross who appears for the Attorney General informed me at the outset that the purpose of bringing this appeal was to seek the opinion of this court on matters of principle and there would be no further proceedings against the respondent whatever the result.

6. A number of grounds were advanced. Firstly, the magistrate erred in law in determining the matter by reference to the summary of facts which was only the opening of the prosecution and not evidence: TAM Kit-nin v R, Criminal Appeal No. 1123 of 1981.

7. Secondly, it was improper for the magistrate to enter the arena because this prevents the prosecution from having a fair hearing Justice must be done to the prosecution as well as to the defence: Attorney General v Tung Ying-chuen, Criminal Appeal No. 20 of 1987. It was also wrong for the magistrate to indicate his view of the prosecution case before its conclusion as it was for him to indicate his view of the defence evidence during its presentation.

8. Thirdly, the magistrate was in error in seeking to dissuade the court prosecutor from proceeding with his case before he had called evidence. He said that it was wholly improper for the magistrate to tell the parties before hearing evidence that his view was that the case could not be substantiated. He referred to the judgment in R v Lee Yung-chi, Magistracy Criminal Appeal No. 1004 of 1986 in which Roberts C.J. said this:

"I need not refer to any authorities for the proposition, which is indeed self-evident, that it is improper for a court to reach a decision as to whether or not there is a case to answer until it has heard the whole of the evidence which the prosecution wishes to put before it."

9. These dicta were cited with approval by Garcia J in R v Lam Yuk-chuen, Magistracy Appeal No. 178 of 1987 where he stated he "would only add that the prosecution is entitled to put its case in full before a judge or a magistrate before it is ruled upon, and it is wrong to indicate his view of the prosecution case whilst evidence is still being adduced on its behalf."

10. Fourthly, he submitted that it was a blatant threat to say to the court prosecutor that costs would be awarded against him if he insisted on proceeding. This constituted a violation of a magistrate's duties in terms of section 19 of the Magistrates Ordinance, Cap. 227 and amounted to a material irregularity in causing the prosecution to be deprived of a fair and full hearing: per O'Dea J in Attorney General v Hung Kam-lung and another, Magistracy Appeal No. 761 of 1987. The threat was of a type deprecated by Jones J in Chung Wah-siu v R, Criminal Appeal No. 1182 of 1982.

11. Lastly he submitted that in view of the stance taken at an early stage by the magistrate, it was a matter of little surprise that defence counsel elected not to cross-examine the only prosecution witness.

12. I am in complete and respectful agreement with the judgments and dicta cited, which are unquestionably correct statements on general principles of law. But like all general principles of law, their application must fit to particular and specific facts of each and every individual case.

13. It is a matter of discretion whether a judge or magistrate should discharge himself from hearing a case. The discretion must be exercised judicially and with the greatest caution having regard to all the factors and circumstances of the case.

14. I think it is too wide a proposition to say that a Judge or magistrate can never stop a trial before he has heard evidence or before he has heard all the evidence. There may be occasions when he would be justified and indeed duty bound to do so. A good example will be if after hearing the opening of the prosecution, the judge or magistrate is satisfied that the facts relied upon by the prosecution does not in fact disclose any offence. Similarly, in a jury trial, a judge may, in appropriate cases, stop a case after hearing part but not all the evidence if he is satisfied that the evidence adduced does not support the charge and further evidence will not improve the prosecution case. Instances like these are rare and I would say extremely rare. In any event, courts cannot be expected to have to hear cases which are completely unmeritorious.

15. In this case, the magistrate was fully aware that the summary of facts was not evidence and in refusing the application to discharge himself, he was satisfied that he was not prejudiced and it also appears that he took into consideration all relevant matters. The fact that the prosecution witness was not cross-examined is to my mind, immaterial. If this is a fact to be relied upon, then it will become necessary to ask whether the uncross-examined, unchallenged and uncontradicted evidence of the police constable was sufficient to establish a prima facie case to which the respondent should be called upon to answer. No such material is placed before me. If that is to be the case, it seems to me that the appeal should have been brought on that basis and the present appeal is perhaps misconceived.

16. As the matter stands and with some measure of reluctance, I would answer the question in the negative I must however, issue a strong warning to magistrates that this practice is not only undesirable but also highly dangerous and is to be discouraged and avoided at all costs.

17. The appeal is dismissed.