The Queen v. Cheung Wai Shu

HCMA000022/1984

HEADNOTE

Submission of no case to answer - proper approach to such a submission - test is whether a tribunal of fact, properly directed as to the law, could on the evidence convict the defendant - no findings of fact should be made at that stage - important for magistrate to keep distinct his functions as judge of law and judge of fact.

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Coram: Hon. O'Connor, J.

Date: 28th February, 1984

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JUDGMENT

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1. The Crown appeals, by way of case stated, from, the decision of a magistrate, at the conclusion of the prosecution evidence, that the respondent had no case to answer. The respondent, a detective sergeant, was charged, under section 3 of the Prevention of Bribery Ordinance with accepting an advantage, namely a loan of $50,000.00. The first question of law to which an answer is sought, is :-

"Was my decision that there was no evidence that the said receipt of the sum of $50,000.00 was a loan within the meaning of section 2(1) of the Prevention of Bribery Ordinance, Chapter 201 right?"

2. In the case stated the learned magistrate sets out primary facts which he found to have been proven, and opinions he formed, or inferences he drew, from the primary facts. He sets out that he formed the opinion that the $50,000.00 was not a loan, but a bailment. He states that he 'decided' that the respondent merely 'held the said sum of $50,000.00 on behalf of the owner-simply being given the right to use it if required'.

3. The issue of whether there is a case to answer was a question of law for the magistrate to decide, and he should not at that stage have purported to make any finding of fact. He was in error in doing so: A.G. v. Yau Ka Ping ⁽¹⁾.

4. The question asked in the case stated does not accurately reflect what occurred at the conclusion of the prosecution case. The question supposes, that the magistrate asked himself whether there was any evidence that the $50,000.00 was a loan, but the other paragraphs indicate that what he did was to decide that it was in fact not a loan. A magistrate is not entitled to find no case to answer, because, he thinks the evidence could reasonably be considered to be consistent with innocence, if he also thinks that it could be reasonably viewed as establishing guilt. The question of whether or not there is a case to answer, depends upon whether on the evidence as it stands the defendant could be convicted. That is to say, whether, taking the evidence for the prosecution at its highest, a reasonable tribunal of fact, accurately directed as to the law, could properly convict. The question is not whether he ought to be convicted. A magistrate combines the functions of judge of law and judge of fact. He has to keep the distinctions between the one, and the other clear his mind. He makes his decision, as to whether there is a case to answer, in his capacity of judge of law. At that stage he ought not to find no case to answer, based on the reason that if he were judge of fact, on the evidence as if then stood, he would acquit.

5. I was referred to R. v. Galbraith⁽²⁾ for the approach to be taken to a submission if no cases. That case comes at the end of a line of conflicting authorities in the Court of Appeal in England. A more binding authority, which I consider is in accord with R. v. Galbraith, is that of the Privy Council in Haw Tua Tau v. Public Prosecutor⁽³⁾ where the following passage appears at page 403:-

"The proper attitude of mind that the decider of fact ought to adopt towards the prosecution's evidence at the conclusion of the prosecution's case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cases in 1969. Here the decision-making function is divided; questions of law are for the judge, questions of fact are for the jury. It is well established that in a jury trial at the conclusion of the prosecution's case it is the judge's function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those in essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on. It is not the function of the jurors, as sole deciders of fact, to make up their minds at that stage of the trial whether they are so convinced of the accuracy of the only evidence that is then before them that they have no reasonable doubt as to the guilt of the accused. If this were indeed their function, since any decision that they reach must be a collective one, it would be necessary for them to retire, consult together and bring in what in effect would be a conditional verdict of guilty before the accused had any opportunity of putting before them any evidence in his defence. On the question of the accuracy of the evidence of any witness, jurors would be instructed that it was their duty to suspend judgment until all the evidence of fact that either party wished to put before the court had been presented. Then and then only should they direct their minds to the question whether the guilt of the accused had been proved beyond reasonable doubt.

In their Lordships' view the same principle applies to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judge (or in two judges trying capital cases). At the conclusion of the prosecution's case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence."

6. There was evidence before the learned magistrate that the respondent's, senior or previously senior officer, handed the respondent a cheque for $50,000.00 and that the respondent lodged that cheque to the credit of his own account, used some of the proceeds, and later repaid the money in two instalments. That evidence, clearly and strongly, points to a loan from the senior officer to the respondent. Even if there was no evidence of repayment if appears that the prima facie inference which arises from the payment of money by one person to another is a loan, in the absence of a suggestion of advancement or the possibility of it being repayment of a loan, or being given for cash at the same time: Seldon v. Davidson⁽⁴⁾. The evidence before the learned magistrate ruled out the possibility of advancement or that the respondent received the $50,000.00 in repayment of a loan or in exchange for cash. There was evidence before the learned magistrate that the $50,000.00 was a loans. The respondent could make use of it to his advantage, by merely putting it in an interest bearing account. There was evidence before the learned magistrate that the respondent had put it in his savings account. It is common knowledge that such accounts bear interest on their balance. There was no evidence that the respondent paid or was expected to pay the interest earned, to the senior officer.

7. The magistrate considered that the absence of agreement, as to manner of repayment or rate of interest, showed it was not a loan. The absence of agreement on those matters only indicated a loan repayable on demand.

8. There was evidence before the magistrate of what tire respondent said in interviews with officers of the Independent Commission Against Corruption. His statements were partly inculpatory and partly exculpatory. A tribunal of fact would of course have to consider all the statement, but having done so, would be entitled to give what weight it considered appropriate to the various parts of the statement. It is not surprising that frequently, in the light of all the evidence, weight is given to incriminatory parts but not to exculpatory parts of such statements. It is a matter of common experience that a person who is taxed with criminal conduct, will often admit that which he thinks he cannot get away with, but will put a gloss on it in order to put himself in a better lights.

9. The magistrate found that the $50,000.00 was given to the respondent as bailee. He does not appear to have considered that a bailment refers to chattels that are to be returned in specie. He arrived at his conclusion by accepting everything that was in the respondents statements. What he ought to have done, at that stage of the trial, was to consider the case against the respondent, taken at its highest, and decide whether a reasonable tribunal of fact, properly instructed as to the law, could properly have convicted. If he had done so he would have found a case to answer. Accordingly I answer the question 'No'. There were other questions posed, which would only arise if I had answered the first question affirmatively. As the matters arising in the other questions were not fully argued I do not propose to deal with them. The case is remitted to the learned magistrate with an instruction that he find a case to answer, and thereafter continue in accordance with law.

(1)    (1977) H.K.L.R. 76

(2)    (1981) 73 Cr. App. R. 121

(3)    (1981) 3 W.L.R. 395

(4)    (1968) l W.L.R. 1083

Representation:

Mr. Christopher Harris, Crown Counsel, for Crown (Appellant)

Mr. F.A.L. Eddis (D.L.A.) assigned for Respondent