Chui Ming-fat and Others v. The Queen

CACC000274/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.274 OF 1969

-----------------

Coram: Williams, J.

Date of Judgment: 13 June 1969

-----------------

JUDGMENT

-----------------

1. The appellants are appealing against an Order by a magistrate that they find sureties and binding them over to keep the peace for a period of 3 years.

2. They were to be witnesses at the hearing of two charges of assault occasioning bodily harm preferred against TSUT Kam-tong arising out of a disturbance which occurred in the President Hotel arcade on 20th February 1969. The complainants in the two charges are NG Chun-tung and LAM Hon-choi, which are the names of the 2nd and 3rd appellants.

3. TSUI Kam-tong had pleaded not guilty to both charges which were set down for hearing on 10th March, 1969. On the day of his trial TSUI Kam-tong pleaded guilty to the lesser charges of common assault and an outline of the facts was given to the magistrate in the usual way.

4. It shows that the three appellants were prosecution witnesses and that on 15th February 1969 they had been involved in a dispute in the President Hotel arcade and that the said TSUI Kam-tong had been on the opposing side. A fight had developed but order was restored without the intervention of the police. The second appellant owns a tailoring firm in the said arcade and he employs the other two appellants. On 20th February 1969 there was repetition of the occurrence of the 15th February 1969 in the course of which the said TSUI Kam-tong and some companions had pursued the appellants 1 and 3 into the shop of their employer, appellant No.2. A fight seems to have developed in the course of which two of the appellants received injuries for which they were treated in hospital. The police were called to the scene and TSUI Kam-tong was charged with the offences aforesaid.

5. The foregoing outline of the facts was admitted by TSUI Kam-tong and he was fined $300.

6. As part of the same proceedings TSUI Kam-tong and the three appellants were ordered to find sureties in the sum of $500 to keep the peace for 3 years. The Order as drafted contains the information that they were examined and were unable to show cause and alleges that the court had found that a further breach of the peace could be anticipated.

7. Mr. Ip who appeared for the appellants pointed out that the magistrate's record contained no evidence which referred to the appellants and upon which the magistrate could have been justified in making such an order.

8. In his findings the magistrate states that he informed the three appellants that there were two sides to a quarrel; he says that they agreed that bad blood existed between them and TSUI Kam-tong. The record hears no reference to such a statement being made by the magistrate nor to any admission of any kind being made by the appellants. The magistrate's findings say that TSUI Kam-tong gave evidence on oath - but if he did so the magistrate never recorded it. He says that TSUI Kam-tong had explained in mitigation that he had substantial business connections in the President Hotel arcade and that he was obliged to go there on business, and that it was during such visits that the appellants abused him. As I have said, there is not a note in the record of any such evidence being tendered by TSUI Kam-tong.

9. Had he recorded that evidence, it would probably have occurred to the magistrate that the three appellants would have liked to cross-examine the deponent who was making allegations against them. At that stage the magistrate should have asked the appellants whether they wanted an adjournment to take legal advice because he, the magistrate, was thinking in terms of binding them over. Depending upon their answers he should have granted an adjournment and/or given them an opportunity of giving evidence upon oath, if they so desired, touching upon the disturbances in the arcade(illegible) and they should have been informed of their right to call witnesses. Following that evidence, if they elected to give any, the magistrate would then have had before him sufficient evidence to help him decide whether they should provide sureties.

10. In the instant case, it is possible that the appellants' cross-examination of TSUI Kam-tong and in their own evidence, could point to an allegation that TSUI Kam-tong was a tout in the employ of outside tailoring firms; that he had no connection with any firm in the arcade; that he was simply engaged in poaching customers from the arcade to the detriment of persons, such as the appellants, who made their living in the arcade and, who unlike TSUI had to pay rates and rent for the privilege.

11. Evidence of that nature may have made the magistrate hesitate before including the three appellants in the order for binding over which he imposed upon TSUI Kam-tong.

12. According to his finding the magistrate told the appellants that he was considering binding them over; that he did ask them if they had anything to say; that they protested they were only witnesses; that they did not show cause and that they did not address him on this issue. Once again there is not a note in the record that he did any of these things.

13. It may be that the magistrate feels that he can treat his personal recollections as part of the record of the proceedings. Of course that is not permissible. His findings must be based on what he had recorded in writing at the time of the proceedings. His findings are part of the record but do not form part of the proceedings.

14. I agree with the magistrate's observations that his powers of binding over are wide, if he means that that power can be applied to numerous situations which point to the likelihood of a breach of the peace. But there must still be adequate evidence or clear unequivocal admissions on the part of the suspected persons that there is likely to be a breach and that they are likely to be involved.

15. The magistrate referred to CHENG Loy and others v. The Queen⁽¹⁾ which confirms a magistrate's wide powers on such occasions. But it points out that the persons to be bound over should be given every opportunity of demonstrating that they should not be subject to such an order.

16. In Everett v. Ribbands⁽²⁾ the Court of Appeal stated that the hearing by a magistrate of a complaint requiring someone to find sureties is a trial just as much as any other proceeding; Denning, L.J. at p.204 referred to s.25 of The Summary Jurisdiction Act 1879, which is the basis of s.61 of the Magistrates Ordinance Cap. 227, which permits a magistrate, on complaint, to order persons to find sureties. He stated that persons could no longer be bound over without an opportunity of giving evidence.

17. The appeals of all three appellants are allowed; the order to find sureties is set aside and the sureties are discharged; the order binding over the appellants is set aside.

13th June, 1969.

Representation:

John Ip for Appellant.

M.J. Alexander C.C. for Respondent.

(1) 1963 H.K.L.R. 612

(2) 1952 Q.B.D. 198 at p.201