LEUNG KIM HUNG v. THE QUEEN

Criminal Law - procedure - record of trial court - challenge as to its accuracy - first step is for appellant to bring the alleged inaccuracy to the notice of trial court - improper for correspondence to ensue direct between appellant's solicitors and trial magistrate - improper for counsel and trial magistrate initially to file affidavit with appellate Court - exceptionally by leave trial Magistrate may be separately represented by Counsel at appeal hearing - Sections 34, 118(1)(a) Magistrates Ordinance, Cap. 227

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 700 of 1984

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BETWEEN

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REASONS FOR JUDGMENT

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1. The appellant appealed against a conviction of common assault contrary-to the common law and Section 40 of the Offences Against the Person Ordinance, Cap.212.  In the Magistrate's Court he had pleaded not guilty to that charge but after trial was convicted. On the hearing of the appeal I allowed the appeal and quashed the conviction. I now give my reasons.

2. This appeal raises several issues. First, the procedure to be followed where an appellant wishes to raise matters which were alleged to have occurred at the trial but were not recorded in the depositions of the trial, supplied for the purposes of the appeal, under Section 118(1)(a) of the Magistrates Ordinance, Cap.227. Secondly, whether the learned magistrate erred in relying on the evidence of the second prosecution witness as corroborating the evidence of the first prosecution witness, when she was present in Court when the first prosecution witness gave evidence. Thirdly, in terms of the final additional ground of appeal, was the learned magistrate prejudiced and had he already made up his mind against the appellant, before the appellant gave evidence.

3. The charge arose from an incident in a camera shop on 20th October 1984 in relation to the proposed purchase by the complainant, who was an Australian tourist, of a video camera. The complainant was accompanied in the shop by her sister. The appellant was a salesman in the shop. The complainant had earlier paid a deposit for one particular type of camera which was then unavailable but when she returned the shop still had not obtained the camera she sought. A salesman attempted to sell her a dearer camera of a different brand which she declined. Eventually the salesman with whom she dealt agreed to refund the deposit. A dispute then developed as to the return by the complainant of the receipt for the deposit. The complainant tore up the receipt and dropped it on the floor. At this stage the appellant, who was another salesman and had not, until then been involved, approached the complainant. According to her evidence, the appellant swore at her and then slapped her once across the face with his right hand.

4. The appellant was arrested and charged and in order that the complainant and her sister's evidence could be adduced, before they returned to Australia, the matter was brought on for hearing with considerable speed on 23rd October 1984. The appellant pleaded not guilty and was represented by a solicitor. The complainant gave evidence. Her sister, who was in Court while the complainant gave evidence was also called and her evidence supported the evidence of the complainant. The appellant gave evidence and also called the other salesman who was directly involved in the camera transaction.

5. The learned Magistrate found the charge established. The appellant was convicted, fined $750 and ordered to pay $250 compensation to the complainant. From that conviction-he has appealed. The notice of appeal was dated 30th October, 1984 and the sole ground of appeal disclosed in that notice, was "Insufficient evidence to convict." In the normal course, a deposition of the trial, including the record of the proceedings taken by the learned Magistrate was, for the purpose of the present appeal, provided under Section 118(1)(a).

6. Turning to the first issue, after the deposition was supplied, the appellant's solicitors were of the view that the record was incomplete. The appeal was then complicated by the fact that the appellant's solicitors did not follow the correct procedure which should be followed where a record is queried. What happened was that the firm's assistant solicitor, who appeared as Counsel for the appellant at the trial, signed an affirmation setting out his recollection of what had occurred and that affirmation was filed with this Court.

7. The affirmation alleged "that when the trial resumed, after a short adjournment between the evidence of the complainant and her sister, the learned Magistrate, in open Court, enquired whether the appellant would change his plea and when Counsel replied that there would be no change of plea the learned Magistrate was alleged to have remarked that the appellant was taking a great risk. The affirmation also asserted that a similar approach had been made by the prosecutor during the short adjournment. The affirmation further alleged that Counsel had made a submission that, because the sister had been in Court during the evidence of the complainant, her evidence could not be accepted as corroborating the evidence of the complainant.

8. The appeal came on for hearing on 27th December, 1984, before another judge, when that Court ordered that the hearing be adjourned. I am informed the purpose of the adjournment was to enable the learned Magistrate to comment on the assistant solicitor's affirmation. On 28th December 1984 the appellant's solicitors wrote direct to the learned Magistrate informing him of the grounds of the adjournment and inviting his comments. An affidavit has now been filed by the learned Magistrate denying the allegations in the assistant solicitor's affirmation.

9. I am surprised that the first step taken by the appellant's solicitors, after receiving a copy of the record, was to file an affirmation by the assistant solicitor who appeared as Counsel, for that is contrary to proper practice, where a record is queried. In addition to his primary judicial responsibilities, a magistrate himself is obliged to take a manual record of proceedings before him. However, he is not obliged to take a verbatim record. Section 34 of the Magistrates Ordinance recognises the practical difficulties of a verbatim record being taken and only requires that a full minute of the matters mentioned therein be taken by the Magistrate," so far as circumstances permit." In practice Magistrates generally take a far fuller record than the bare statutory provision requires.

10. The position may therefore arise on appeal where an appellant considers that a record does not include all matters which are relevant to an appeal. Where that happens the proper procedure is for the appellant's solicitors to cause to be brought to the magistrate's attention the alleged omission and for the magistrate to be given time to consider whether he wishes to amend the record. The appellant's solicitors should not write to the magistrate direct, as was wrongfully done in this case in relation to the affidavit. All correspondence from the solicitors should be addressed to the clerk to the magistrate or to the Registrar. Nor should the magistrate himself personally reply to such correspondence. After the Magistrate has considered the matter, his Clerk should, in writing, convey the Magistrate's response to the Registrar and forward a copy to the appellant's solicitors.

11. That the proper first step to be taken, where a record is queried, is for the queries to be so referred to the magistrate, for his consideration, is mentioned by the Full Court in R. v. Pau Wing-shing (1970) 47, 51. The same basic procedure was also referred to by the Court of Appeal in Lee Yat-lung v The Queen Criminal Appeal No. 210 of 1982. In the majority of cases, after this first step has been taken, hopefully any dispute about the record will be resolved.

12. Occasionally queries may persist and that is in fact what occurred in Lee Yat-lung v. The Queen. As to the position which then arises the Chief Justice, in delivering the judgment of the Court of Appeal, observed:

"Unless the dispute is itself to be the subject of a trial, at which evidence is to be given by counsel and the judge, which would surely be inappropriate, there seems to us to be no alternative, as a general rule in cases of conflict of this kind, but that the version of the trial judge, who is responsible for maintaining the proper record of the proceedings, should be accepted, save only where the judge's record, or his reply to the variations put to him by counsel, suggests that his version of what happened is so inherently improbable that we should not accept it."

13. The Court of Appeal went on in that appeal to adopt the judge's record and the comments which he had subsequently tendered on the alleged defects. It may be noted that in civil appellate proceedings, although the Rules of the Supreme Court Order 59 Rule 12(b), Cap.4 give the Court of Appeal a wide discretion, the general practice, where the only record is the judge's note, is to rely on that note unless all the parties agree to any variation - Thompson v. Andrews (1968) 2 All E.R. 419, C.A. An appellate Court is more ready to allow amendment in a criminal than in a civil case - Wong Kam-tong v. The Queen Cr. App. No.668/81 C.A.

14. A difficulty which arose in this appeal was that before I became seized of the matter, not only had the proper first steps not been taken but counsel, in the court below, had filed an affirmation setting out his recollection of what had occurred and the learned magistrate had filed an affidavit in reply denying the assertions in the affirmation. This course was certainly, in terms of the Chief Justice's observation, "inappropriate." For now as a matter of fact in the appeal papers before me there is conflicting evidence given by counsel and the magistrate.

15. At the beginning of the hearing before me I indicated to Counsel for the appellant that before I could go on to consider the substantive grounds of the appeal, I was obliged first to determine the form of the record on which the appeal would be based. I was unhappy that the affirmation and affidavit had been filed but as they were before me and created a conflict of fact as to what occurred in the lower court, that evidential conflict had to be resolved before the appeal could proceed. Crown Counsel properly indicated that he was only representing the Crown on the appeal and had no instructions from nor had he communicated with the trial magistrate. In the result, I had before me an affidavit relevant to the issues raised on appeal which had been filed by a person not a party to the appeal.

16. The appeal had already been adjourned on a previous occasion and with both counsel again-present and ready to proceed. I was reluctant for it to be further adjourned t6 a further date. In the circumstances I took the course of adjourning the hearing until the afternoon and requested Crown Counsel to cause the hearing to be brought to the learned Magistrate's notice in case he wished to be represented by Counsel. I was aware of that fact that this was an appeal and not an application for judicial review or a proceeding under any of the prerogative writs. However, in view of the conflict of fact in relation to the record and that an affidavit had been filed by the magistrate, I considered that this was an exceptional case for the magistrate to be represented by Counsel, by leave, if he so wished.

17. When the appeal resumed in the afternoon, Crown Counsel indicated that the matter had been brought to the attention of the Registrar of the Supreme Court, who indicated that the magistrate did not wish to be represented. The matter was fortunately further simplified when Counsel for the appellant indicated that she was now prepared to proceed on the basis of the original record, supplemented by the magistrate's affidavit. On that basis the contents of the assistant solicitor's conflicting affirmation were to be wholly disregarded. The appeal then proceeded on the basis that the contents of the record, as supplemented by the magistrate's affidavit were undisputed.

18. As to the second issue, this was only a charge of common assault so, as a matter of law, corroboration was not required. There was ample evidence from the complainant's evidence alone, upon which the learned magistrate could properly have convicted the appellant. However, this ground of appeal was advanced more on the basis that, as the complainant's sister was in Court and heard the former's evidence before she gave evidence, the latter evidence should not have been relied upon in support of the complainant's evidence.

19. I am satisfied that the complainant's sister inadvertently remained in Court during the former's evidence. The prosecution was clearly under considerable pressure of time and had not been able to give the case normal preparation. The short adjournment, after the complainant's evidence concluded and before her sister was called was necessary because the prosecutor was not aware that the sister was available as a witness and had been present in Court. The complainant's sister at the beginning of her evidence confirmed that she had been in Court. The record taken by the learned Magistrate on the day of the trial also records that he overruled the objection then entered by the appellant's Counsel.

20. The learned Magistrate's ruling was unimpeachable. The general custom in Hong Kong, which is certainly convenient, is for Counsel for both parties to ensure that their own witnesses are out of Court until called. Strictly, of course, a witness is entitled to remain in Court until in the exercise of the Court's discretion a formal order is made requiring witnesses to leave the Court and remain out of hearing but within call. No such order was sought by the appellant's Counsel in this case nor was any such order made. However, even where an order excluding witnesses is made and a witness remains in Court in breach of that order, the Court has no discretion to refuse to hear that witness but is obliged to allow that witness to give evidence - Moore v. Registrar of Lambeth Court (1969) 1 W.L.R. 141,142.

21. There were therefore no legal grounds on which Counsel for the appellant could have objected to the admissibility of the sister's evidence. Where a witness remains in Court and hears the evidence of a prior witness, whether or not an order is made excluding witnesses, the evidence of that witness is admissible. In such a case the only relevant consequence of the witness remaining in Court, and it may be highly important, goes to weight.  In each case when a witness remains in court it is for the Court to assess the weight that should be given to the evidence of such a witness, in the light of the fact that she heard the previous evidence. Both in his contemporaneous record and in his Statement of Findings, the learned magistrate refers to the fact that the sister was in Court throughout.  Clearly that was a matter in the forefront of his mind which he took into account when he went on to assess the weight he would give to the evidence of the various witnesses. He found that the sister's evidence supported the complainant's and on the evidence he was clearly and properly entitled to come to that finding. This ground of appeals dismissed.

22. The final ground of appeal was that the learned magistrate was prejudiced and had already made up his mind against the appellant before the appellant gave evidence. I confirm that this ground has to be determined on the basis of the record and the learned Magistrate's subsequent affidavit. In that affidavit the learned magistrate denied that he requested the prosecutor to see whether the appellant would change his plea as the evidence against him was weighty. If any such approach was made by the prosecutor, the learned magistrate deposed that it was not at the instigation of the Court.

23. Counsel for the appellant elected to accept that denial but founded her submission on the contents of paragraph 3(d) of the learned Magistrate's affidavit. It was submitted that in that paragraph the magistrate admitted that in open Court the appellant's Counsel was asked whether the appellant was prepared to reconsider his plea because of the possible consequences, if the appellant were convicted, after a full defended hearing.

24. In my view, if that indication were made by the learned magistrate to the defence, at the stage of the proceedings suggested, it would have been made at an inappropriate time. The crucial question is was such an indication made? If paragraph 3(d) is considered in isolation, Counsel's submission gains some support. However, the express terms of paragraph 3 take issue with and deny the matters set out therein. In those terms the learned magistrate is therefore denying and not admitting that the indication complained of was given. The latter position, which may not have been fully appreciated at the hearing before me, follows from a consideration of the whole of paragraph 3 which, referring to the assistant solicitor's prior affirmation, declares:

25. I recognise that while all the clauses of paragraph 3, including clause (d), refer to matters which in form are expressly denied, at least some of the latter clauses are not denials of allegations in the prior affirmation but represent positive assertions by the learned magistrate. To this extent the affidavit may not be happily drafted. Ideally, those positive allegations should have been recited in separate paragraphs following paragraph 3. They should not have been included in paragraph 3 which opened as an express denial of the allegations particularised in the affirmation.

26. If paragraph 3 of the affidavit had been limited to traversing the allegations in the affirmation and entering denials, where appropriate, there would be little difficulty in holding that the learned magistrate had unequivocally denied that during the course of the prosecution evidence he had indicated to the appellant that he should reconsider his plea.

27. If the whole of the contents of paragraph 3 are considered, is the position unambiguous? Apart from the opening words of paragraph 3 Clauses (a) and (b) thereof are from their contents clearly denials. All the remaining clauses are also formally in terms of the opening words of paragraph 3, denials. However, the contents of paragraphs (c) and (e) are-primarily by way of explanation. Clause (g) rather than being a denial contains a counter allegation as to a finding on another matter.

28. In my view if the whole of paragraph 3 is considered in the context of the rest of the affidavit, the better interpretation is that Clause (d) is not only formally but also in fact, a denial that the suggested interruption was made. On that interpretation I am satisfied that the appellant did not receive anything other than a fair and impartial hearing.  In any event I wholly reject the allegation of prejudice.

29. On the other hand, I recognise that the interpretation of Clause (d) is not beyond doubt. Counsel for the appellant has based her major submission on the contrary interpretation of Clause (d). Counsel for the Crown also shared that contrary interpretation. I accept Counsel for the appellant's general concluding submission, that it is not sufficient that justice was done but it must also manifestly be seen to be done. It was submitted, on the contrary interpretation, that the appellant was justified in being aggrieved. I was referred to the Court of Appeal's judgment in Lai Chuk-ting v. The Queen (1978) H.K.L.R. 402. In that judgment the Court of Appeal held that if there was some justification for such a grievance a conviction should be quashed.

30. If it were not for the residual doubt as to the meaning of Clause (d) I would, in view of my other findings, have no hesitation in dismissing this appeal. The difficulty is how to dispose of the appeal in view of the position that has now arisen on the affidavit. The Court has a very wide appellate discretion. Nevertheless it remains unfortunate that this appeal will have to be determined, not on the real merits of the evidence, but on a doubt as to the true :meaning of Clause (d) of the post-hearing affidavit. However, in the circumstances, I have come to the conclusion if with reluctance, that there is no other alternative. The appellant is entitled to the benefit of that doubt. The appeal is allowed. The conviction is quashed.