The Queen v. Mok Chung
Read the full judgment text of HCCC 11/1975 on BabelCite. This High Court CFI judgment.
1. The accused Mok Chung was indicted on charge of murder and appeared before the Court to-day for plea and, if necessary, trial.
|
HCCC000011/1975 IN THE SUPREME COURT OF HONG KONG CRIMINAL CASE NO. 11 OF 1975 -----------------
----------------- Coram: Trainor, J. in Court Date of Judgment: 9th June, 1975. ----------------- RULING ----------------- 1. The accused Mok Chung was indicted on charge of murder and appeared before the Court to-day for plea and, if necessary, trial. 2. Before plea was taken Mr. Wong for the defence drew my attention to what he feared might be such an irregularity in the committal proceedings as to render them a nullity. Mr. Wong was very reluctant to make an issue of the point, as his client has been in custody since the 30th July last and is anxious to have the matter disposed of, but he very properly drew my attention to the irregularity and to two cases in Hong Kong where an analogous incident had been held to render committal proceedings a nullity Mr. Amey for the Crown was equally anxious that the trial should proceed but felt he must associate himself with what Mr. Wong had said. 3. What transpired at the committal proceedings was as follows: 4. One person, an eye witness to the incident which resulted in the death, was examined before the learned magistrate and statements of a number of witnesses were tendered. When this had been completed the magistrate made the following entry in the record of the proceedings:
5. There is then a gap of two lines followed by:
another gap and then:
6. The original record then bears what appears to be the magistrate's initials (but the transcript indicates his signature) and the date: 12/12/74. 7. The point raised by Counsel was that there was nothing to indicate that subsection 3 of section 82 had been fully complied with, and that is so. Indeed, having regard to the specific references to sub-section 1, 2 and 4 it might well be concluded that sub-section 3 had been ignored apart from recording what the accused said. 8. Sub-section 1 of section 82 provides that after the Crown has presented all its evidence the magistrate shall, unless he holds there is no case to answer, read and explain the charge to the accused, tell him of his right to call witnesses and of his right to give evidence. Having done so the magistrate is bound to caution the accused that he is not bound to say anything but whatever he says will be taken down in writing and may be given in evidence. 9. Sub-section 2 provides that before the accused says anything he shall be told that he has nothing to hope for from any promise of favour and nothing to fear from any threat that may have been held out to him to induce him to make any admission or confession of guilt but whatever he then says may be given in evidence on his trial notwithstanding any such promise or threat. 10. Sub-section 3 reads:
11. The relevant parts of that sub-section are:
12. It is of interest to note that a form has been prescribed to cover the requirements of sub-sections 1 and 2. It is, however, surprising that no reference is made in it to the requirement of sub-section 3 that the reply to be read over to the accused, though part of a note in parenthesis reads:
13. The first question to be answered is: was section 82(3) of the Magistrates Ordinance complied with. If one were to apply the maxim, expressio unius est exclusio alterius, the answer is clearly, no. It might, perhaps, be argued that at least part of the sub-section appears to have been complied with in that the magistrate recorded what the accused said and signed the reply. It is arguable, to put it at its best: but where two entries are made after the words spoken by the accused followed by a gap of two lines and then the word "Order", followed on succeeding lines by the committal for trial and certain other notes of compliance with other statutory requirements, it is difficult, specifically, to relate the signature to what the accused said. Had the magistrate stated that the requirements of sub-section 3 been complied with as he did with sub-sections 1, 2 and 4 then it might well have been possible to hold that his signature covered everything: the requirements of the section and the order of committal, but when all reference to that sub-section is omitted, save such as is to be implied from recording verbatim what the accused said, it is impossible to conclude that the magistrate's signature certified the accused's answer. 14. It must also be borne in mind that a form has been prescribed to cover the requirements of the section, even though there is nothing, parenthetically or otherwise, in it to remind a magistrate that it has to be read back to the accused, and it makes provision for the magistrate's signature and the date. It would appear from this that it was never contemplated that a signature at the end of the proceedings would be sufficiently comprehensive to cover the requirements of section 82, any more than such a signature would excuse the absence of magistrate's signature at the end of a witness's deposition. It is also of relevance that section 86 of the Magistrate Ordinance directs that among other things "the statement of the accused and his evidence, certificates signed by the magistrate touching the due observance of the requirements of sections 82, 83 and sub-section (2) of section 85 ..... shall be transmitted to the Registrar ....." In so far as 82(3) has been omitted by the magistrate from his notes and the other sub-sections included can it be said that the due observance of section 82 has been complied with? 15. In my opinion it is necessary for the due compliance with sub-section 3 that the magistrate read back the accused's reply. No suggestion has been made to me that this was in fact done and there is nothing on the notes to indicate it. 16. The accused in this case has been in custody almost a year and is anxious for an early trial. I would have been prepared to go as far as possible to facilitate him and to that extent would have encouraged argument as to whether or not a failure to comply with section 82 rendered the committal proceedings void ab mitio or voidable only on the point being taken by either side. If such a decision were possible it would have had the virtue of common sense, practicality and would have been in the furtherance of justice. A decision of mine in the case of R. v. Lee Chi-wai (1973) H.K.L.R. 505 was cited to me in which I held that the failure of a witness to sign a deposition rendered the committal proceedings a nullity. The circumstances of that case were different, however, in that it was necessary to put the deposition to the witness in cross-examination to show that his evidence at the trial differed from what was in his deposition. As he denied what was in the deposition it was necessary to challenge him with his signed deposition but that was impossible as he had not signed it. The point was then taken by the defence and my decision was inevitable. 17. However, the decision of the Full Court in Chan Kam-chau and The Queen (1971) H.K.L.R. 383, which is binding on me, left me with no choice but to declare the committal proceedings a nullity. In that case the appellants had pleaded guilty to a number of robbery charges in the Magistrates Court and were committed to the Supreme Court for sentence. There, Counsel for the accused drew the attention of the learned judge to the fact that the learned magistrate had failed to record that the offences and the ingredients which at law constitute them were explained to the accused as is, inter alia, required by section 81B(3)(c) of the Magistrates Ordinance. The trial judge declared he was satisfied that to all intents and purposes the accused had been properly committed for the purposes of sentence and proceeded to pass sentences. The accused appealed against the sentences and their Counsel drew the attention of the Full Court to what had occurred, conceding at the same time that the point was purely technical and that he brought it to the attention of the Court because he felt it to be his duty to do so. 18. Reading the judgment of the Court Huggins J. said:
19. There is no evidence that the accused's statement was read over to him and, at the best, it is doubtful if the magistrate signed his name to what the accused said. Indeed the omission to refer to sub-section 3 of the section, having mentioned the other three sub-sections, would suggest that the magistrate overlooked the fact that the sub-section imposed certain obligations on him which have to be performed i.e. read the reply and sign his name to it. This has added weight when one considers section 86(1) which requires that "certificates signed by the magistrate touching the due observance of the requirements of section(s) 82 ....." be forwarded to the Registrar. A certificate that part of the section has been complied with clearly falls short of what is required. 20. I have already declared the committal proceedings to be invalid and on doing so directed that fresh proceedings be held forthwith. But before leaving this case I feel I must express my strongest disapproval of the way the case has been handed from the very beginning. 21. The offence with which the accused is charged is alleged to have been committed on the 31st July 1974. The accused was arrested at the scene on the same date and made his first appearance in Court on the 2nd August. On that date the prosecution asked that the accused be remanded in custody to permit further enquiries to be made. The accused, unrepresented, asked that his case be dealt with as soon as possible. It was adjourned to the 7th August when the prosecution asked for a further remand to enable more enquiries to be made. This time the accused was represented and no objection was made. He was remanded in custody to the 21st August, that is for 14 days. 22. On the 21st August an application was made for a further remand to prepare statements and obtained for forensic evidence. This time Mr. Ip objected on behalf of the accused but despite this, and in clear contravention of section 79(1) of the Magistrates Ordinance the magistrate remanded the accused in custody until the 13th September, a total of 22 days, "for mention only". 23. On the 13th September the accused was remanded in custody to the 2nd October with consent. 24. On the 2nd October the accused was remanded in custody to the 29th October on the application of the Prosection "as", according to the magistrate's notes, "the papers not available. Translation and verification not complete". He also made a note to the effect that there was "no comment" from the accused. There is nothing in the note to say if the accused was represented but, whether or not, the power of a magistrate to remand in custody without the consent of an accused is limited to 8 days. There is nothing to suggest that the magistrate made any enquiry as to why the papers were not available or the translation and verification not complete. If, as appears from the record of this case, all statements from witnesses were completed by the 2nd August with the exception of the police photographer whose statement in English is dated the 7th August then it is little short of scandalous that "the papers" with translations were not available. I note that the translation were certified by Court Translators on the 4th or 5th December but I cannot believe that the translation were with them from August until then. As to when the report of the forcusic pathologist was available I do not know, it is undated, but on the 28th September all the exhibits had been recovered from him and it seems unlikely that it would require a month for him to prepare his report. 25. On the 29th October the accused once more appeared before the Court. There is a brief minute as to what took place:
and so without his consent, it would appear, the accused was remanded in custody for over one month. 26. The result of all that, in what appears to be a very simple case indeed, is that the accused has had to wait for four months for committal proceedings to commence which occupied the time of about one working day. 27. An accused is entitled to much more consideration than that. He is entitled to the benefit of the provisions that limit the extent to which he may be remanded in custody without his consent. If the prosection request repeated remands it is the duty of a magistrate to demand the reason and ensure that any delay is unavoidable. The reasons for persistent remands should be cogent and should be recorded. 28. The result of the decision to which I felt I was constrained to come is neither logical nor practical. A circumstance existed which neither the accused nor the prosection wanted to stand in the way of proceeding with the trial but, I think, both sides considered I had no choice but to rule as I did. It occurs to me that it would be greatly to the furtherance of justice were legislation to be introduced to provide that in similar circumstances committal proceedings be not void ab initio but voidable only on the application of either party.
Representation: Mr. Wesley Wong (D'Almada Remedios & Co.) for Accused. Mr. Amey c.c. for Crown. |