Tsang Wing Biu and Another v. The Queen
Read the full judgment text of CACC 181/1976 on BabelCite. This Court of Appeal judgment.
1. The appellants in this case were convicted in a Magistrate's Court with conspiring to defeat the course of public justice and each was fined $250. Against that conviction they now appeal.
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CACC000181/1976 IN THE SUPREME COURT OF JUDICATURE HIGH COURT CRIMINAL APPEAL NO. 181 OF 1976 -----------------
----------------- Coram: Trainor, J. Date of Judgment: 26th March, 1976. ----------------- JUDGMENT ----------------- 1. The appellants in this case were convicted in a Magistrate's Court with conspiring to defeat the course of public justice and each was fined $250. Against that conviction they now appeal. 2. The background to the case is as follows: 3. A summons was issued pursuant to section 27 of the Public Health and Urban Services Ordinance in which the second appellant was charged with an offence under that section. 4. On the date of hearing of the summons the appellant asked his brother to attend the Magistrate's Court and represent him there. The first appellant did so and pleaded guilty on behalf of the second appellant. 5. Having heard the first appellant, the Magistrate then ascertained that he was not in fact the person named in the summons. Subsequently, a charge was preferred against the first appellant "for that he did conspire with (the second appellant) to defeat the course of public justice in that he agreed to appear before a magistrate on the 10th December in place of (the second appellant) to answer a summons served to (the second appellant)..." The charge against the second appellant was a similar conspiracy, that he conspired with the first appellant. 6. At the hearing before the magistrate, the appellants pleaded not guilty and a solicitor appearing on their behalf conceded that the first appellant did appear in the Magistrate's Court and enter a plea of guilty on behalf of the second appellant. He said that when the first appellant was asked by the Magistrate if he was in fact the defendant he said "No" and explained that his brother, the second appellant, had a business engagement on Hong Kong Island and had asked him to appear on his behalf. 7. The Magistrate found the two appellants guilty as charged. 8. It is my intention to allow this appeal and there are indeed many grounds in which it could be done but I do not intend to dwell on them. 9. I am firstly of the opinion that the learned Magistrate misdirected himself on a matter of law in arriving at his conclusion. The learned Magistrate in his Statement of Findings has said, and I quote:
He continued and this I think is the vital point:
10. To say that only the defendant named in a summons or his legal representative can plead to a charge is not in the circumstances of the present case correct. Section 8A of the Magistrates Ordinance provides in subsection (1):
11. Subsection (7) of that section reads:
12. In the fourth schedule, among the officers authorized to serve the notices is the Senior Health Inspector and the offence referred to in the second column of the schedule include any offence against Part III of the Public Health and Urban Services Ordinance. The section under which the second appellant was charged is to be found in the third part of the Public Health and Urban Services Ordinance. Therefore, when the second appellant asked the first appellant to appear on his behalf on the hearing of the charge against him in the Magistrate's Court he was doing what he was authorized to do by the Ordinance. The only limitation on the representation by the first appellant was that he had to satisfy the magistrate that he was authorized to enter a plea of guilty and that he was in a position to pay the fine. But what the second appellant did in asking the first appellant to appear for him was perfectly within the rights of that appellant. For the offence of conspiracy there have to be two conspirators. Such does not exist in this case and on that basis I would allow this appeal. 13. But to justify a conviction on a charge of conspiracy there must exist mens rea on the part of those charged. In this case they must have had the intention to defeat the ends of justice. If a person acknowledges that he has committed an offence and is prepared to accept whatever punishment is meted out to him it cannot be said that he is endeavouring to defeat the ends of justice if he sends an emissary to make the admission on his behalf. It would, of course be a different matter if the intention was that the emissary was personally to suffer a penalty of imprisonment posing as the real culprit. But that was not the case here. Indeed when the first appellant was asked if he were the second appellant he said that he was not. 14. Even if, in the circumstances of this case, the case were one to which section 8A of the Magistrates Ordinance did not apply and the appellants did what they did how could they be said to be endeavouring to defeat the ends of justice when in fact what was done was to facilitate the ends of justice i.e. have a law breaker punished. Whatever offence the appellants might have committed if section 8A did not apply it certainly would not have been a conspiracy to defeat the ends of justice.
Representation: Mr. Sanguinetti (H.H. Lau & Co.) for both Appellants. Miss Beeson, C.C. for the Respondent. |