Wong Koon Ching and Another v. Ho Pui and Another

HCA006842/1982

Proof of previous convictions in civil proceedings - meaning of term "convicted" as used in s.62 of the Evidence Ordinance - Effect of order under s.32 of the Magistrates Ordinance that no conviction be recorded.

BETWEEN

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Coram: Hon. Power, J.

Date: 12 April 1983

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JUDGMENT

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1. In this matter the plaintiffs, Wong Koon Ching and Fee Ngar Ming, are suing as the administratrices of the estate of Fee Yung, claiming damages under the Fatal Accidents Ordinance, for loss of expectation of life and for lost years of earnings.

2. The 1st defendant owned and the 2nd defendant drove a vehicle involved in a collision, particulars of which are given in paragraph 2 of the Statement of Claim, in which the deceased lost his life.

3. In paragraph 4 of the Statement of Claim, the plaintiffs pleaded, "The 2nd defendant was convicted on the 23rd July 1980 by a Magistrate, J. Betts, sitting at the Fanling Magistracy of the offence of careless driving contrary to Section 14(1) of the Road Traffic Ordinance Cap. 220. The said conviction is relevant to the issue of negligence and the plaintiffs intend to rely thereupon as evidence in this action."

4. The defendants entered a joint Defence in which they have denied paragraph 4 of the Statement of Claim and in particular, denied that the 2nd defendant was convicted of careless driving.

5. The defendants have taken out a summons asking that paragraph 4 of the Statement of Claim be struck out on the ground that it may prejudice or embarrass the fair trial of the action or that it is otherwise an abuse of the process of the Court.

6. This summons, which was brought under Order 18 rule 19, originally went before Master Betts, as he now is, and he refused to strike out the paragraph. It comes before this Court by way of appeal from that decision.  Miss Burgess who appeared for the applicant defendant submitted that the paragraph was prejudicial to the defendants because, as the magistrate had ordered that no conviction be recorded, whether or not what had happened before him had resulted in a conviction, no reference could be made thereto in any other proceedings.

7. Miss Burgess read an affidavit to which was annexed a copy of an "Information for Summons'' form on which the magistrate had written what appears to be the only record kept of the proceedings on 23rd July 1980.  This sets out that the second defendant was charged that "On the 10th December 1979 at 24½ m. s., Castle Peak Road near Mobil Petrol Station, Ping Shan, New Territories in this Colony he did drive a private car exhibiting the registration mark BA1469 on a road carelessly. There is no suggestion that this incident is not the same one as is referred to in paragraph two of the Statement of Claim.

8. It is difficult decipher the magistrate's written notes in full. It is clear that the 2nd defendant pleaded guilty. The magistrate then appears to have noted that he dealt with the facts and previous convictions.  There is no record as to the facts themselves or as to the previous connections as the note in this regard simply reads "Facts" and "Prev." The next few words are indecipherable however the record ends "Absolute Discharge. No conviction to be recorded."

9. Nowhere, in what can be deciphered, is there any express statement that the 2nd defendant had been "convicted" of the offence charged. It would seem that Master Betts, who was himself the magistrate, must have taken the view, when dismissing the application, that the proceedings had resulted in a conviction to which it was proper, by virtue of s.69 of the Evidence Ordinance, to refer in civil proceedings.

10. However that may be, Miss Burgess submitted that, whether or not what had occurred in the magistrate's Court resulted in a conviction, the effect of the order that "No conviction be recorded" was that reference could not be made to the conviction, if there was one, in any other proceedings. She submitted, that being so, that it was clearly prejudicial to defendants in later civil proceedings to make reference in pleadings to a conviction which, if it existed, could not be used in those proceedings.

11. Mr. Lai, who appeared for the plaintiff/respondents, urged on the other hand, that it was clear from the magistrate's record that the plaintiff had pleaded guilty to the offence, and submitted that, regardless as to whether any reference was made in the record to a conviction, once the defendant pleaded guilty to the offence charged, a conviction resulted. He submitted that the order of the magistrate that no conviction be recorded in no' way affected the right of a plaintiff, relying upon s.62 of the Evidence Ordinance, to prove the fact of that conviction in later civil proceedings.

12. The matters which fell for my decision were : -

13. Miss Burgess, although she submitted that it was in no way material to her case to canvass whether or not there was a conviction, submitted relying upon the case of Li Hok Ming v. The Queen,⁽¹⁾ that the plea of guilty. did not constitute a conviction. When considering the dicta which fell from the learned judge in that appeal, one must bear in mind that he was there concerned with the word "conviction" as it appears in Section 36(1) of the Magistrates Ordinance which reads as follows:-

"36. (1) Where any person is charged before a magistrate with an offence punishable on summary conviction, and the magistrate thinks that the charge is proved but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient tog inflict any punishment or any other than a nominal punishment, the magistrate, with or without recording a conviction, may make an order either-

The learned judge also referred to the word "conviction" as used in s.3 of the Probation- of Offenders Ordinance, s.4 of the Drug Addiction Treatment Centres Ordinance and s.107 (1) of the Criminal Procedure Ordinance. He said:-

"Comparison of these provisions shows t fat in some circumstances it is possible that a person who has been found guilty shall not be convicted. It is wrong in my view to assume that a verdict of guilt is necessarily a conviction. For some purposes it clearly is: see, for example, Rex v Sheridan⁽²⁾"

14. There are conflicting decisions as to the meaning of the word "conviction", however, one thing which can be said to be clear from a consideration of the cases. as the learned judge in Li Hok-ming's case observed, is that cases in which the meaning of the word falls for consideration "turn upon their own particular statutes".

15. He recognized that for "some purposes" a verdict .of guilt was a conviction. Given the circumstances in that appeal, it can fairly be suggested that his mind was directed primarily towards the use of "convictions" in subsequent criminal proceedings.

16. Whether or not such suggestion is correct what is certain is that he was concerned with the meaning of the word "conviction" in Section 32 of the magistrate Ordinance and was, in no way, concerned with s.62 of the Evidence Ordinance. Indeed, no reference of any sort was made thereto in that appeal. In the present application we are, of course, concerned primarily, not with s. 32 of the Magistrates Ordinance, but with s. 62(1) of the Evidence Ordinance.  This section reads as follows:-

"62.  (1) In any civil proceeding the fact that a person has been convicted of an offence by or before any court in the Colony shall, subject to subsection (3), be admissible in evidence for the purpose of proving where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings, but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.,"

The words which fall for consideration in this appeal are the words "In my civil proceedings, the fact that a person has been convicted of an offence by or before any Court." It is, in my view, important to bear in mind the intention of the legislature when considering the meaning of the words set out above.  The legislature clearly intended to facilitate the proof in civil proceeding of. Matters to which the fact of a conviction was relevant.  The legislature was in no way concerned with the use to which such a fact might be put in criminal proceedings. It is clear also from the wording that it was concerned not with a "conviction", as such, but with "the fact that a person has been convicted".

17. The moment at which it can be said that a person has been convicted has caused considerable difficulty in the past. The difficulties that have arisen are clearly exampled in the following passage from Rex v. Manchester Justices, ex parte Lever ⁽³⁾:-

"       This matter is really concluded by Rex v. Sheridan ⁽²⁾ , where the Court of Criminal Appeal rejected the argument that there could not be conviction without a sentence, and Rex v. Grant ⁽⁴⁾, where it was held that a plea of guilty was a conviction on the prisoner's own confession sufficient to found a plea of autrefois convict. Reference was made in Rex v. Sheridan⁽²⁾ to Reg. v. Blaby ⁽⁵⁾, where the question for decision was what meaning was to be given to the word "conviction" in ss. 9 and 12 of the Coinage Offences Act, 1861, which provided that certain consequences should ensue on a conviction under s.9 of the Act. The case came before the Court for Crown Cases Reserved and it was held that the expression "conviction" in those Sections must be taken to include the case of a person who had been found guilty of an offence but had been released on finding a recognizance to come up for judgment when called on, and that it did not necessarily involve a sentence or judgment by the Court. Hawkins J., delivering the judgment of the Court of five judges, said: "We have no difficulty in holding that this conviction should be affirmed, and on this simple ground: that upon carefully considering the language of ss. 9 and 12 of the Coinage Offences Act, 1861, there can be no doubt of the meaning of the word 'convicted' as there used; it appears plain that it is not necessary that there should be a judgment before there can be a conviction. Taking s.9, it is evident that such 'conviction' means the finding of the jury that the person charged is guilty,......... meant 'found guilty,' and the sentence was to follow on the conviction. And a plea of guilty would equally be a conviction."

This decision emphasizes, as I have already indicated, that the meaning to be given is governed by the applicable statutory provisions.

18. The position was summarized by Avory J. in Oatven v. Auty ⁽⁶⁾, where he said, at p.289 : -

"The word 'conviction' has different meanings. Sometimes it means an adjudication that a person has committed the offence charged against him; sometimes it means that, plus the judgment of the Court upon it. In Section 1, sub section 1, I have no doubt the word is used in the second of these senses, namely, an adjudication that an offence has been committed plus the judgment."

It was this second meaning that the learned judge in Li Hok Ming's case attributed to the use of the word "conviction" in Section 36 of the Magistrates Ordinance. Having considered the intention. of the legislature and the words of the ordinance, I am quite satisfied that in Section 62 of the Evidence Ordinance the lagislature intended the word to bear the first of the two meanings, i.e. an adjudication that a person has committed the offence charged against him.

19. I now turn to the second matter that falls ,for consideration. Again in this regard Miss Burgess placed great reliance upon the dicta in Li Hok Ming's case. The learned judge, when dealing with the of feet of an order that no conviction be recorded, said, "Where a breach of the criminal law is de minimis or there are reasons peculiar to the defendant which make punishment inexpedient, the Court may discharge the defendant and order that he be treated as if he had never offended at all". The learned judge went on to say, "I think it was clearly the intention of the legislature that neither the conviction nor the fact that the previous offence had been committed should ordinarily be referred to". I fully appreciate the force of these words, however, for the reasons I have set out above, i.e. that the Court was dealing not with the Evidence Ordinance but with the Magistrate Ordinance, I do not consider that they have any bearing upon the matters which I must decide.

20. Miss Burgess went on to argue that, even if a conviction did arise by reason of the plea of guilty, for the purposes of s.62, once: it was ordered that no conviction be recorded, s.62, by its own terms, became inapplicable. The words in s.62 which she relied upon when making this submission read as follows : -

"But no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

She submitted that, once it had been ordered that no conviction be recorded, the conviction could not be treated as a "subsisting one".

21. Mr. Lai, on the other hand, submitted that the word "subsisting" merely meant a conviction that still stood, i.e. one that had not been quashed by the Court of Appeal or by the Magistrate in the exercise of his power to review. He cited Re Raphael (Deceased) ⁽⁷⁾, in support of this contention, however I do not find this authority of much assistance as it seems to me to bear only peripherally upon the question. Mr. Lai, however, wont on to submit that the magistrate cannot quash a conviction under Section 36 as the section gives him no power 'so to do. By its terms it empowers him simply to order that it be not recorded. I am satisfied that a "subsisting" conviction means a conviction that has not been quashed and that, even though a magistrate may have ordered, under s.32, that. no conviction be recorded, there remains a subsisting conviction for the purposes of section 62.

22. I am satisfied that where a person has pleaded guilty to a charge, he has, for the purpose of Section 62 of the Evidence Ordinance, been "convicted of an offence" and "the fact" that he "has been convicted" may be proved under Section 62 in subsequent civil proceedings. This being so, the pleading of the fact of such a conviction was quite proper and the appeal must be dismissed. I make an order nisi that the appellant pay the respondent's cost of this appeal to be taxed.

(1)    Criminal Appeal No. 176 of 1978.

(2)    (1937) I K. B. 223.

(3)    (1937) 2 K. R.96 at 100.

(4)    100 J.P. 324.

(5)    (1894) 2 Q. B. 170

(6)    (1919) 2 K. B. 278.

(7)    (1973) 3 ALL E. R. 19

Representation:

Miss Burgess of Gallant Y. T. Ho & Co. for applicant/defendant.

Mr. Thomas Lai (Chung & Kwan) for respondent/plaintiff.