Li Wai-chu v. The Queen

CACC000157/1983

Prosecution witness bound over to keep the peace - record and findings not sufficiently comprehensible to determine facts - witness not warned nor asked to show cause why order should not be made - contrary to natural justice - order discharged.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 157 of 1983

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BETWEEN

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Coram: de Basto J. in Court

Date of Judgment: 29 March 1983

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JUDGMENT

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1. The appellant was called as a witness by the prosecution in respect of a dispute she had with a neighbour in a hawker stall area. The neighbour ("The accused") was charged in the lower court with assault occasioning the appellant actual bodily harm.

2. The appellant testified that the accused had told her to "shift away a bit" and that he had spilled some oil on her goods. She testified that the accused then threw a wok at her - she put up her left hand to ward it off but the wok 'marked' her hand and then hit her body. The appellant summoned the police by dialling 999.

3. A medical report, Exhibit P1, indicated a superficial cut wound over the palm of the appellant's left hand and redness and tenderness over the left side of chest.

4. At the conclusion of the appellant's evidence the accused was advised of his rights but he elected not to cross-examine.

5. The second prosecution witness was an auxiliary police constable. He testified, inter alia :

"I saw a crowd. She was having a dispute - they were both still angry but woman (sic). He had thrown a wok at her. Her hand was bleeding (left palm was cut) ..... She said something to me about being hit on the body .... I said, had there been a fight? Yes, over hawking space .... They both agreed there was a dispute, mostly verbal ....."

6. The accused did not cross-examine the constable.

7. The accused then gave evidence. His evidence is very short - it consists of only 31 words. I set it out in full :

"Hawker. Married. Sunday afternoon. The woman got into her hawking space. She said too much from frying potatoes. She said to leave. She lifted wok and poured oil on me. (Auxiliary police constable confirms that oil was poured on him)."

Then the record goes on immediately as follows :-

"The court is not satisfied with the evidence. It is so confusing. Court will never sort out the issues.

(No cross-examination by Crown as directed by Court.) Both parties to be bound over in the sum of $500 (own recognizance) for a period of one year. Wok to be confiscated".

8. It would appear the constable did not witness the dispute, much less the assault - I say that because the constable testified that he asked whether there "had been a fight?" and because of the learned magistrate's third finding of fact which was that there was no independent corroboration of what had truly transpired.

9. When the learned magistrate recorded the constable as "confirming" that oil was poured on the accused, does that mean the constable was recalled to the witness box? Was the constable saying he actually witnessed oil being poured on the accused? Was this alleged "confirmation" given on affirmation? was it evidence? And what do the words, "No cross-examination by Crown as directed by Court" mean? Does it mean that the court directed that the accused be. not cross- examined by the Crown or does it mean that the prosecutor failed or declined to cross-examine the accused as directed by the court? And if the prosecutor failed or declined to cross-examine, was that not possibly, or probably, because the magistrate had already expressed the view that "the court is not satisfied with the evidence. It is so confusing. Court will never sort out the issues"?

10. The learned magistrate in his statement of findings found :

What does the third finding of fact mean? It does not make sense as it appears but was it intended to read :

That, too, would not make sense as it was not the accused who alleged the wok had been thrown.

Was it intended to read :

If so, how did the learned magistrate come to that finding? It certainly was never suggested to the appellant that she had, so to speak, cast the first stone. And if the magistrate's third purported finding was based on the accused's evidence that "She lifted wok and poured oil on me" that allegation was not tested either because the magistrate ordered that there be no cross-examination or, because the prosecutor failed or declined to cross-examine after the court had already expressed the view that "the Court is not satisfied with the evidence".

11. Magistrates have, under the Magistrates' Ordinance and the Statute of Edward 111 (34 Edward c.1) and at common law, wide general and inherent powers, as conservators of the peace, to bind over such persons whom they think might thereafter commit a breach of the peace.

12. But as Fitzgerald J. said in Reg. v. The Justices of the Queen's County (1882) 10 L. R. Ir. 294 at 303:

"It is a wide judicial discretionary power' to be exercised with great caution and not capriciously, and as it is capable of being abused, to be jealously watched over by this Court."

This appeal also raises important points of law which must be dealt with.

13. A person ought not, especially in the context of Hong Kong, to come to court to give evidence on behalf of the Crown as a complainant or as a witness and to leave court subject to a legal sanction unless (1) there are facts on the face of the record from which it can properly be inferred that there is a danger of such complainant or witness committing, in the future, a breach of the peace, and (2) the complainant, or witness is apprised of those facts and given an opportunity to be heard as to why an Order ought not to be made binding him over to keep the peace.

14. Dealing with the first point, the views of Palles C B. stated in The Ring (Boylan) v. The Justices of Londonderry (1912) 2 I.R. 374 at 381 are apposite :

"The learned solicitor-general has insisted, I confess somewhat to my surprise, that it is not necessary to the validity of an order by Justices directing a person who has not .been convicted to find sureties, and in default suffer imprisonment, that it. should on its face state facts from which an inference can be drawn that there is danger of his committing a future breach of the peace. To my mind the necessity of stating such facts in such an order has always been treated, not only as elementary law, but as essential to personal liberty. It is in truth a branch of the more general rule that not only an order to imprison, but any. order made by any authority, no matter how high, not known to the common law, or although known to it, not acting in pursuance of it, must upon the face of it show the facts which give the jurisdiction to make it."

15. There is no finding, by the learned magistrate that the appellant was or appeared to be, an aggressive, provocative or argumentative person.

16. As was said in R. v. Woking Justices, ex parte Gossage (1973) Crim. L.R. 306 :

"A defendant was clearly in a different position from a witness who not only came before the justices with no suspected prospect of being subject to binding over but also, although he might speak in evidence, could not represent himself through counsel or call evidence on his own behalf."

As regards the second point this was clearly stated by Lord Parker C.J. in Sheldon v. Bromfield Justices (1964) 2 Q.B. at 578 :

"What has concerned the court, however, is the two findings that the appellants were not accorded the opportunity of being heard in their own defence, and that they had not been warned of what was passing through the court's mind. It has been argued here on behalf of the justices that provided, as in this case, the persons whom it is proposed to bind over have had, in effect, their say by being examined, cross examined and re-examined, there is no need at all that they should know what is passing through the court's mind, and indeed that the justices can bind them over without giving them any advance notice or an opportunity of dealing with it. I must say I shudder at the idea that that can be done although it is said it is done quite generally. It seems to me to be elementary justice that, in particular, a mere witness before justices, should, at any rate, be told what is passing through the justices' minds, and should have an opportunity of dealing with it."

17. In Reg. v. Hendon Justices ex parte Gorchein (D.C.) (1973) 1 W.L.R. at 1504 Lord Widgery, C. J. had this to say :

"In the end it seems clear to me that the justices here failed in their duty in not warning the applicant that they had a binding over in mind. I might add that I think it is high time that this particular error should be eradicted, because it is the easiest thing in the world for justices who contemplate binding over to say what they have in mind and ask the intended recipient what he has to say. They ought to observe that rule. If they do not their conclusion is liable to be upset on certiorari ....."

18. R.v. Keighley Justices, ex parte Stoyles (1976) Crim. L.R.573 concerned a case at the conclusion of which the justices had asked the complainant if he consented to being bound over. The complainant did not consent but nevertheless the justices bound him over without giving him an opportunity of being heard in his own defence. Their Lordships held :

"When exercising their ancient power to bind over, the justices were required to warn the one intended to be bound over and should give him an opportunity to meet the allegations against him. In the present case adequate warning was not given."

The commentary to the above case reads :

"It is clear that, if justices have in mind to bind over a complainant, witness or acquitted defendant, they must warn the person concerned and give him an opportunity to advance reasons why he should not be bound over."

19. In the present appeal, the magistrate's record and findings were not sufficiently comprehensible for the court properly to deal with the appeal but, in any event, the order made against the appellant was contrary to natural justice.

20. Therefore, the appeal must be allowed and the magistrate's order quashed in so far as it relates to the appellant.

Representation:

Appellant in person

Miss D. Crebbin for the Crown