ATTORNEY GENERAL v. WONG CHI SING

1988, No. 633

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H E A D N O T E

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No duty on prosecution to have in court all persons served with witness summonses - prosecution entitled to withdraw application for adjournment.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 633 OF 1988

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J U D G M E N T

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1. The respondent appeared in Shatin Magistrates Court on 21st September, 1987, charged with assault occasioning actual bodily harm. His co-defendant pleaded guilty, but the respondent pleaded not guilty and the case was adjourned to 22nd December for trial.

2. On that date the victim was not present and the appellant applied for an adjournment. A witness summons had been served on 1st December.

3. Defence counsel's ambivalent approach was, on the one hand, to oppose the application but, on the other, to indicate that he required the presence of the absent witness. If the magistrate was disposed to grant the application, he asked for costs.

4. The magistrate, Mr Britton, indicated he proposed granting an adjournment and deferring the question of costs to the conclusion of the trial. Counsel thereupon submitted that this might have the effect of depriving the respondent of legal representation at trial - apparently overlooking the fact that juveniles are entitled to free representation, under the Duty Lawyer Scheme, on all but the most trivial charges.

5. This argument apparently found favour with the magistrate but, before any order was made, the prosecutor withdrew his application, stating that he now considered he was able to prove the case without the evidence of the victim.

6. The magistrate took the view that the victim was a vital witness and adjourned the trial to 9th March, 1988 and ordered the appellant to pay the respondent $5,000 costs. No reasons for ordering such a large sum - the maximum permitted - appear on the record.

7. The appellant failed to persuade the magistrate to review his order for costs and has now asked him to state a case for the consideration of this court in these terms:

"(1)     Whether it is the duty of the Appellant in a summary trial to have available in Court the prosecution witnesses for the purpose of cross-examination.

(2)     Whether the application for the adjournment in this case was occasioned by some 'default' on the part of the Appellant within the meaning of section 20(2)(b) of the Magistrates Ordinance.

(3)     Whether I erred in law in acting as I did in making the order for costs in the sum of $5,000 against the Appellant."

8. Section 20 of the Magistrates Ordinance, Cap. 227, provides:

"20. (1)     Before or during the hearing of any complaint or information, a magistrate may adjourn the hearing to such time and place and on such conditions as he thinks fit.

(2)     Where the hearing is adjourned

(a)     ……

(b)     On the application. of the complainant or informant, either personally or by counsel, and the magistrate is satisfied that the application is occasioned by some default, neglect or omission on the part of the complainant, informant or his counsel, as the case may be, he may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000 as the magistrate may think fit."

9. The magistrate referred to the duty of the Crown, in a trial on indictment, to have available those witnesses named on the back of the indictment. As Silke v.-P, said in R. v. Cheng Chung Hai & Anr.⁽¹⁾, an appeal from the District Court, at p.6 :

"Ma Chai's name had been on the Summary of Facts, a practice in the District Court analogous to the names on the back of the Indictment in High Court trials. There is no duty upon the Crown to call all such witnesses. It has a duty to have those witnesses available and, if they do not intend to call them themselves, to let the defence have their statements and either offer them to the defence for cross-examination, as was done here, or to leave the defence free to make up their own minds whether they wished to call them or not."

This reflects the English practice. In R, v. Oliva⁽²⁾ Lord Parker C.J. said at p. 1035 :

"Accordingly, as it seems to this court, the principles are plain. The prosecution must of course have in court the witnesses whose names are on the back of the indictment; but there is a wide discretion in the prosecution whether they should call them, either calling and examining them, or calling and tendering the for cross-examination.

That was a case in which the prosecution had certain witnesses available, but chose not to call them, on the basis that they were unreliable.

10. In R. v. Cavanagh⁽³⁾ the prosecution were anxious to call a witness whom they regarded as reliable. They were prevented from doing so by events outside their control - the witness was an Indian seaman who had been unable to sail from India with the other witnesses because of illness or injury. It was held that, in those circumstances, the passage cited above from the judgment of Lord Parker, C.J. had no application, Geoffrey Lane J. (as he then was) said at p.679:

"The prosecution must take all reasonable steps to secure the attendance of any of their witnesses who are not the subject of a conditional witness order or whom the defence might reasonably expect to be present.......

    If, however, it proves impossible, despite such steps, to have the witnesses present; the court may in its discretion permit the trial to proceed provided that no injustice will be done thereby."

11. That is very similar to the situation in this appeal. and a far cry from that in R. v. Cheng Chung-hai(1), R. v. Oliva⁽²⁾, or the authority cited by the magistrate, R. v. Mok Wei-tak & Anr.⁽⁴⁾.

12. The magistrate considered there was a parallel duty on the prosecution in a summary trial to have in court those persons they intended to call as witnesses, on whom witness summonses had been served. He took the view that -

"^.....if such a witness is not produced in Court by the Crown then the Crown is in 'default' of its duty in a strict and neutral sense and without any negligence being imported."

The magistrate concedes that there is no authority for this proposition. In the light of the decision in Cavanagh, it is clearly going too far even in the case of a trial on indictment.

13. In R. v. Luk Ming Hong⁽⁵⁾, an appeal from a magistrate, in which the witnesses were present in court, but were not called, Blair-Kerr J. said at p. 386 :

"The Crown are not bound to call every person from whom they have taken a statement. If it appears that there is in the statement of any witness whom they do not propose to call material which may be of assistance to the defence it is their duty to give to the defence the name and address of that witness to enable the defence to take a statement from him."

14. I respectfully agree that that is as far as the prosecution, in a summary trial, is required to go. A fortiori, if the prosecution intends to call a witness and takes the proper steps to ensure his attendance, no blame or fault can be attached to the prosecution if the witness fails to appear. They have done all that can reasonably be expected. Their duty extends no further.

15. In the context of s.20, "default" means a breach of a legal obligation. It was the witness who was in "default", when he failed to answer the summons, not the prosecution who were responsible for its issuance.

16. Counsel for the appellant submits that, in any event, s.20(2) (b) was never triggered, the application for an adjournment having been withdrawn, and that the magistrate was therefore wrong to find that the hearing was adjourned "on the application of the complainant or informant".

17. The magistrate refused to allow the prosecution to withdraw the application to adjourn because he felt that the victim was a vital witness. Such an application may, with respect, always be withdrawn before the order is made. If the defence had made a similar application and the magistrate had imposed terms unacceptable to the defence, it could scarcely be argued that the application could not be withdrawn.

18. I am satisfied that, while the magistrate had jurisdiction to adjourn the case, he did so under s.20(1), on his own initiative, and not under s.20(2) (b), on the application of the prosecution. He had therefore no power to award costs under this section.

19. Nor was the application for an adjournment in this case occasioned by any "default, neglect or omission" on the part of the prosecution. The first two questions are answered in the negative and the third in the affirmative. The appeal is allowed and the order for payment of costs quashed.

(1) C.A. No. 401 of 1987

(2) [1965] 1 W.L.R. 1020

(1) C.A. No. 401 of 1907

(2) [1965] 1 W.L.R. 1028

(3) [1972] W.L.R. 676

(4) [1986] H.K.L.R. 1054

(5) [1963] H.K.L.R. 382.