Shum Hung v. Tam Fun

CACC000338/1961

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.338 OF 1961

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Coram: I.CC. Rigby, S.P.J

Date of Judgment: 11 November 1961

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JUDGMENT

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1. The appellant, a Police Corporal of 15 years' service, was convicted by the Magistrate, Mr. Sanguinetti, on two minor charges of causing wilful and malicious damage to property and using abusive language in a public place whereby a breach of peace might be occasioned. On the first charge he was fined $15.00 and ordered to pay $1.00 compensation, and on the second charge, without any conviction being recorded, he was discharged conditional upon him entering into a bond, in his own recognizance, in the sum of $250.00 for a period of three months. He now appeals against the decision and findings of fact of the Magistrate.

2. The facts of the case are briefly as follows:-

3. On the 23rd of June the complainant, a female hawker, pleaded guilty before the Magistrate, Mr. Sanguinetti, to a charge of hawking without a licence. She was cautioned and discharged. Whilst still before the Magistrate she made certain complaints concerning the conduct of the appellant at the time she was arrested on the charge of hawking. The learned Magistrate asked her if she wished to make a formal complaint against the appellant. Upon her intimation that she did wish to do so, he put her on affirmation and recorded her complaint. According to the Magistrate's record, upon being satisfied as to the "bona fides of the complaint", he directed that summonses be issued against the appellant on the two present charges and a further charge of assault, and further directed that the summonses be returnable on the 30th of June, that is to say, in a week's time.

4. Summonses are, of course, normally issued by a Magistrate upon an unsworn complaint or information being laid before him. Since the Magistrate had taken the somewhat unusual - but, I would hasten to add, in no way improper - course of having the complaint made upon oath before him and had satisfied himself as to the "bona fides of the complaint", it might have been better to have made the summonses returnable before another Magistrate rather than himself. But Mr. Bodilly, Crown Counsel, appearing on behalf of the appellant, most properly in my view, has withdrawn any allegation or suggestion of impropriety or bias in the fact that the learned Magistrate himself tried the case after having heard the original complaint of the complainant.

5. The complainant is a hawker who apparently lives and stays and carries on her business in the street outside No.72 Fa Yuen Street, which is in the immediate vicinity of the Victoria Theatre, Kowloon. At about mid-day on the 22nd of June the appellant was on duty. Part of his duty was apparently to clear away hawkers in that particular area. According to the complainant, she had just finished her business of selling noodles and had packed up, or was in the process of packing up, her utensils when the appellant appeared on the scene. In furtherance of his task of removing the hawkers the appellant, according to the complainant's evidence, deliberate kicked over one of her kerosene tins which contained two empty eating bowls. He then picked up the tin and turned it upside down with the result that the two bowls fell out and were broken. He then picked up two further tins which contained drinking water and poured the contents on the ground. When she remonstrated with him he abused her in obscene language and then instructed the Police Constable with him to take her to the Police Station. According to her evidence, she complained of the appellant's conduct both to the Police Constable who took her to the Police Station and to the Police at the Police Station. Her evidence was uncorroborated. When asked by the Court if she had any witnesses she replied in the negative, adding "In a place like Hong Kong, it is very difficult to get witnesses. Even if one hears or sees one does not come forward to be a witness."

6. The appellant in his defence denied the charges. He said that he want to the vicinity of the Victoria Theatre to clear away hawkers. There were several hawkers there. Upon his instructions all of them left with the exception of the complainant. Despite his repeated order to her to leave she refused to go, saying that the most he could do to her was to arrest her. He then instructed P.C.1485 to take her to the Police Station. He denied that he ever kicked over her kerosene tins, abused her, or assaulted her. His evidence was corroborated by that of P.C.1485. Two hawkers, who were also present at the scene, were called as witnesses for the defence. The first of them said that the appellant shouted at them to leave and that there was some argument between the appellant and the complainant, the details of which he gave in examination-in-chief. In cross-examination by the Court, however, he said that he saw the complainant pointing her finger at the appellant. He assumed that she was scolding him but did not hear what was said. Later he saw her being taken by another Policeman. He did not at any time see the appellant kick over the complainant's tins, hear him abuse her, or assault or attempt to assault her. Evidence of a similar nature was given by the second hawker, although he admitted in cross-examination by the Court that when the appellant arrived he started to pack up his things and move away and it was therefore possible that he might not have seen what occurred. Several Police officers were called from the Police Station to which the complainant was taken on her arrest. All of them stated that they did not hear the complainant make any complaint at the Police Station concerning the conduct of the appellant.

7. At the conclusion of the case the learned Magistrate accepted and believed the uncorroborated evidence of the female complainant and rejected that of the appellant, the Police Constable who was with him, and the first hawker. As to the second hawker he said that he appeared to him to have been an "honest witness" but said that he was satisfied that he did not witness everything that transpired. The evidence of the first hawker he described - for reasons which, with respect to the learned Magistrate, it is somewhat difficult to follow - as "too fanciful for words". No reason is given by him as to why he disbelieved the evidence of the Police Constable.

8. The substantial ground of appeal put forward on behalf of the appellant was that the Magistrate's conduct of the trial was so unsatisfactory that it amounted to a mistrial in that (a) the Magistrate to a very great extent took over the conduct of the prosecution; and (b) the Magistrate by his general conduct of the case and by his cross-examination of defence witnesses showed prejudice in favour of the prosecution." In support of that ground of appeal Mr. Bodilly tendered in evidence, and I accepted, a transcript of the shorthand note of the complete record of the case, taken upon the instructions of the Director of Criminal Investigation, and supported by the affidavit of the stenographer - now on leave in the United Kingdom - who took the note and made the transcript. Mr. Bodilly made no attempt to draw my attention to any specific passage in the 74 typewritten pages of this record, but invited the Court to examine the record, and from the number of questions put by the learned Magistrate during the course of the trial, and from the general tenor of those questions, to draw the conclusion - to quote Mr. Bodilly's own words - that "the Magistrate had allowed his sympathy to run away with him and that he was determined to convict the appellant."

9. I have examined the record with anxious care and consideration and I must confess to feelings of some sympathy and understanding with the learned Magistrate in the position in which he found himself in what, I have no doubt, was his genuine anxiety to ensure that justice was done in the case before him. As the learned Magistrate himself repeatedly pointed out in the course of the trial, the case presented considerable difficulty to the Court in that the defendant was represented throughout by Principal Crown Counsel whereas the complainant, an illiterate and educated woman, had not the benefit of legal representation or assistance. The learned Magistrate accordingly regarded it as a necessary part of his duty to cross-examine the parties, and particularly the appellant and his witnesses. In so doing as he himself pointed out in his written grounds of decision, he had to be careful - to quote his own words - (which are of course paraphrased from the well-known judgment of Lord Greene, M.B., in the case of Yuill v. Yuill, 1945 1 All England Law Reports 183 at page 189) - "not to descend into the area of dispute, or even appear to do so, and side with one party against the other." But despite the very words used by the Magistrate in his grounds of decision written subsequent to the determination of the case, I am satisfied  that that is exactly what he did do. On a careful considerat...(illegible) of the written record and of the transcript of the shorthand record of the trial which, indeed, lasted six days, it is, in my view, difficult to resist the conclusion that the learned Magistrate, by the length of his cross-examination and the general tenor of the questions put by him to the appellant and his witnesses, was not simply testing the truth of their evidence, but unconsciously descending into the arena of dispute and assuming the role of counsel for the complainant.

10. On a consideration of the whole record I am impelled to the conclusion that in his anxiety to ensure that justice was done to this illiterate female hawker, unrepresented by counsel, he unconsciously identified himself with her case and that that fact clouded his judgment in a proper assessment of the evidence given before him and of the very considerable weight of that evidence, much of which was based upon the testimony of two independent witnesses, which negatived the truth of the complainant's testimony or at least, ought to have raised a very real doubt as to whether her allegation had been proved with that certainty required to substantiate a conviction in a criminal charge.

11. In the result I am of the opinion that this appeal must be allowed, the convictions quashed and the sentences set aside. The fine and compensation, if paid, must be refunded to the appellant.

11th November, 1961.