Re John Keppel Stonham

HCMP000334/1979

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Coram: Full Bench (Silke, J. and Mr. Commissioner Mayo in Court.)

Date of Judgment: 18 October 1979

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JUDGMENT

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Silke J.:

1. The applicant, Dr. John Keppel Stonham, by leave mover for an order of certiorari to remove into this Court and quash an order made by the learned magistrate sitting at South Kowloon Magistracy on the 26th February 1979 that his sentence should be reviewed and on the 5th March 1979 that the sentence passed on him on 23rd February 1979 be set aside and that fines of $2,00 and $500 be substituted therefor.

2. Shortly the history of the matter is as follows. The applicant appeared for trial on the 21st February 1979 before P.M. Corfe, Esq., at South Kowloon Magistracy upon two charges 1 (a) of assault occasioning actual bodily harm contrary to Section 39 of the Offences against the Persons Ordinance CAP. 212, (b) Resisting a Police Officer in the execution of his duty contrary to Section 63 of the Police Force Ordinance CAP. 232.
To both of these offences the applicant pleaded guilty, he admitted the summary of facts and the learned magistrate recorded a finding of guilty.

3. Mr. Jackson-Lipkin, who appeared for the applicant both here and in the Court below, then called certain evidence in mitigation and handed in by consent some letters relevant to the applicant. A submission was made and the matter was adjourned for sentence to Friday the 23rd February.On that date the learned magistrate discharged the applicant absolutely with no conviction to be recorded.

4. On Monday the 26th February the learned magistrate, having seen certain newspapers reports over the weekend which made reference to a previous court appearance by the applicant, made an order under the provisions of subsection (5) and (6) of Section 104 of the Magistrates Ordinance that the case be reopened and that it be set down for review on the 2nd March 1979.

5. On that day after an interchange between counsel and the learned magistrate the latter held that at the previous hearing the character of the applicant had been let in, that his character was in issue, and that the fact of the previous offence ought to have been put in. He further held that "Since the previous offence was not put in and the Court was excluded from all knowledge of it by counsel, I ought to consider the previous case now in relation to my duty under subsection (5) To vary, amend or confirm my order.

6. The matter was adjourned to the next day and on that day after hearing considerable argument from Mr. Jackson-Lipkin and counsel for the Crown the matter was further adjourned to the 5th March.

7. On the 5th March the sentence passed on the 23rd February was varied and the sentence complained of substituted.

8. In the applicant's Statement before us there is a ground numbered 5(g). This reads "5 There is error on the face of the proceedings particularly as:

9. The learned Magistrate in reviewing the said sentence erred in law and in practice in that -

10. In his argument Mr. Jackson-Lipkin subdivided this ground into: -

11. If there is no evidence before the Court of a previous conviction can the Court take cognisance of it?

12. If so what?:

13. Is it possible for the Court to take judicial notice of it?

14. By agreement we rule on this matter first and without considering the rest of the applicant's grounds or Mr. Jackson-Lipkin's other main heads of argument. For if we were to rule in the applicant's favour on this ground then that would dispose of the application.

15. Before going on to consider the matter in detail there is one point which we think we should dispose of now.

16. It was suggested by Mr. Reid, who did not appear in the Court below, that references made in the review to the previous offence and submissions thereon placed this before that Court. He felt that this of itself would be enough to dismiss this application.

17. Mr. Jackson-Lipkin however tells us that, in effect a compromise was reached in the Court below to the effect that the learned magistrate having held as we have indicated on the 2nd March counsel could, without prejudice to his right to say that the learned magistrate was in error in so holding, address the learned magistrate upon that previous offence. He did not feel that he could sit back and allow it to go unremarked for fear of the weight which the learned magistrate might attach to it.

18. We accept that which Mr. Jackson-Lipkin says and view the reference to the previous offence in that light.

19. Mr. Reid has submitted that the Crown is not a party to the sentencing procedure in the same manner as it is to that portion of the trial which concerns the guilt or innocence of an accused. It is its duty, of course, to be of assistance to the Court if it can. Mr. Jackson-Lipkin expressed his pleasure at hearing this submission drop from the lips of counsel but we think it really to state the obvious. The Crown does not participate in the sentencing process except insofar as to inform a magistrate of the known history of an accused, where it is appropriate for it so to do, and to inform the magistrate of such a thing as the prevalence of the offence for which the accused has been convicted should it be asked to do so.

20. It is agreed by both counsel that a magistrate is not bound solely by that which the prosecution tells him. He may seek the assistance of such valuable aids to sentencing as Probation reports and reports from the Commissioner of Prisons. Indeed in certain circumstances he is enjoined by statute so to do.

21. These are put in before the magistrate at the appropriate and are open to challenge by an accused.

22. If some of the foregoing seems trite law we make no apology for there is a point.

23. A previous conviction, or possibly in certain circumstances a finding of guilt, is in a different category to the matters we have mentioned. It must be evidenced before a Court. By this we mean that it must either be proved by the calling of evidence or by being put to the accused and admitted by him.

24. In particular if the latter is the case then a magistrate would be well within his rights to call for the convicting magistrate's minute or the register, kept under the provisions of Sections 34 and 35 respectively of the Magistrates Ordinance, so as to have the facts of the previous conviction before him should he deem it necessary.

25. In certain circumstances, upon which we do not intend to delineate, if the previous offence is one which is capable of being referred to but is also are of which no certificate of conviction can be produced - there being no conviction - then the offence can be proved by the evidence of some person present at the time in the other court who can speak of his own knowledge as to the ...(illegible) admission of guilt therein.

26. We have been referred to Craven v. Smith (1869) L.R. 4 Ex.146. We do not consider this to be authority for the proposition that a court may look at all records of its own. Upon considering the judgments of the Court of Exchequer Chamber what it really says is that a Court is limited to the record of the matter which directly concerns that Court - the subject matter of the hearing.

27. There, under the procedure then extant, a rule as to costs was applied for. The action in the lower Court was for slander - the plaintiff recovered E5 depriving him of costs. He wanted then. The affidavits in support of the rule did not make it known to the Court of Exchequer Chamber that the action was for slander. They therefore thought it fit to look at the record to find out what the subject matter of the action was. And that was all. The headnote in this respect is misleading.

28. We do accept Mr. Reid's point that the strict rules of evidence are relaxed when the Court comes to the sentencing process.

29. He goes on to argue from this the provisions of subsection (2) of section 35 of the Magistrates Ordinance which provides that the register kept under the provisions of subsection (1) of that section, being prima facie evidence of the matters entered therein, and further that as all minutes kept under the provisions of section 34 of that Ordinance and the register referred to being under section 35A, open to inspection by, inter alia, a magistrate, the magistrate can of his own motion inspect, acquire certified extracts and in effect, bring these matters before him.

30. He prays in aid of this proposition the passage in Harris "The Criminal Jurisdiction of Magistrates" at p.154 under the heading "Powers Available to the Court" and which reads "Upon conviction of a criminal offence it is the duty of the Court after taking such steps as it desires or is required to inform itself of the circumstances of the case and of the offender ..... to impose a sentence".

31. Mr. Reid laid particular emphasis on the words "Such steps as it desires".

32. We accept that a magistrate is entitled to adjourn proceedings to enable "enquiries" to be made.

33. But it is our view that Section 35 of the Magistrates Ordinance is simply evidential and that Section 35A is simply procedural. The latter in effect providing in criminal matters the power of inspection provided by 0.63 of the Rules of the Supreme Court in civil matters.

34. Also Section 35 allows the important right of challenge to that which is prima facie.

35. "Enquiries" in our view means the calling for such as Probation reports or, after a conviction has been proved, of the convicting magistrate's minute.

36. We note the provisions of Section 36 of the Magistrates Ordinance which empowers the Court to consider certain matters, including antecedents, in its making of an order under that section. But again these have to be evidenced before the Court.

37. The magistrate is a creature of Statute and unless there is specific provision to permit his introducing into evidence of his own volition previous convictions or offences he in our view cannot do so. This also applies to the taking of judicial notice of such matters. There are no such provisions. Indeed Section 29 of the Ordinance militates against such possibility. For if a Court ...(illegible) take judicial notice of something which we think must be proved before it this section would not need to exist.

38. The Courts of Magistrates in Hong Kong operate the adversary and not the inquisitorial system.

39. We can fully understand and sympathise with the learned trial magistrate who clearly felt that something which he thought should have been before him for his consideration as to sentence was not.

40. We express no concluded view on whether or not it was possible for the Crown to adduce evidence of the previous offence at either the original trial or on the review.

41. It is clear that in certain cases the Crown cannot prove a conviction for none exists. However much this may be calling a spade a toasting fork.

42. We have been referred to Reg. v. Li Hok Ming [1978] K.K.L.R. 128. For the purpose of the narrow compass of this ruling we do not intend to consider it further.

43. We decline the invitation of Mr. Jackson-Lipkin to delve into what is the correct, or incorrect, practice in Hong Kong as to the method of production of antecedent statements. This is not germane to the issue under consideration.

44. The fact remains that neither at the original trial nor in the Review was it sought to place evidence before the learned trial magistrate of the previous offence. Even if character had been let in, upon which, as it has not been argued before us, we express no opinion.

45. We do not think it was open to him, however desirable it may have been to have the full antecedents of the accused before him, to, as it were, introduce them into the proceedings himself. We agree that a magistrate has a duty not only to the offender but also to the community at large to see that a proper sentence is passed. But he must exercise that duty on matters put before him and he cannot be faulted in the exercise of his duty if, for some good reason or a reason thought to be good, certain matters are not "put before him" which, had they been, could have affected the sentence he imposed.

46. For these reasons we think there to be an error in law on the face of the record and that being so we grant the relief asked.

Representation:

Mr. Jackson-Lipkin Q.C. & Mr. Winston Poon (J.S.M.) for applicant

Mr. Reid, Mr. Dick and Miss Lee for Crown.