HKSAR v. Yeoh Kar Miin

HCMA000231/2000

HCMA231/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.231 OF 2000

(ON APPEAL FROM ESCC 2799 OF 1999)

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Coram: Deputy High Court Judge Tong in Court

Dates of Hearing: 10 August and 2 September 2000

Date of Judgment: 2 September 2000

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J U D G M E N T

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1. The appellant faced three charges of agent accepting an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, Cap.201. The appellant pleaded not guilty and was convicted after trial. She was sentenced to concurrent terms of three months' imprisonment. The appellant sought to appeal against both the conviction and the sentence.

2. The appellant had raised a number of grounds in this appeal. The first ground was in relation to some remarks made by the learned magistrate after counsel had completed the no-case submission. The appellant argued that what had transpired amounted to an indication that the learned magistrate would acquit in the end even if he were to rule a case to answer, without having to consider the evidence of the appellant. What in effect happened was that after the submission of no-case to answer, the magistrate asked defence counsel to confirm his assumptions that the appellant would not give evidence, that there would be no defence witness and further that defence counsel would simply adopt the no-case submission as the final submission if he were to find a case to answer. The learned magistrate had also adjourned the ruling to a date when counsel had to return to the High Court at 10:00 am.

3. I have taken time to go through the relevant documents and the transcripts. Having considered the circumstances, I was persuaded that the remarks made by the learned magistrate were capable of and might have given such a misleading impression.

4. Regarding this matter, counsel for the respondent had argued that the magistrate was simply dealing with case management. It may well be true. However, I took the view that even if the remarks were meant to be nothing more than matters of case management, if they were made at the inappropriate time and in the inappropriate manner, they could be perceived in the wrong way. The no-case submission stage is a sensitive time of the proceedings. Trial magistrates tend to be very cautious in what they say at this juncture because any comments from the bench could be misinterpreted as some kind of hint; and in practical terms, counsel might advise their clients based on such comments. In this case, I believed the learned magistrate had perhaps inadvertently given the impression that he was giving an indication.

5. However, having said that, I must point out that defence counsel had some contribution for the development of this state of affairs. The first part of his no-case submission dealt with legal arguments and there was no problem at all. But when he went on to submit on the contents of the interview given by the appellant under caution, he made some observations that could have sparked off the magistrate's subsequent comments.

6. For example, counsel said the appellant could not be convicted based on the evidence in this case, and as the magistrate was "unassisted by the evidence and, therefore, in the absence of assistance in the form of evidence, the magistrate had to give the benefit of the doubt to the appellant" (see Transcript, page 608). At this half-way stage, the magistrate should not be deciding whether there was a reasonable doubt. The transcript also revealed that defence counsel had actually told the magistrate that his submission was a combination of both : no-case and final (see Transcript, page 617). There is, of course, no such thing as a combination submission. It was statements like these that could have caused confusion. Still, it was inappropriate for the learned magistrate to have made such remarks regarding the defence evidence at that time and in that manner. If something need to be clarified for the purpose of case management, the learned magistrate should have clearly predicated his enquiry on that basis.

7. In the present case, speaking objectively, I fear that a state of misunderstanding could have occurred between counsel and bench by the exchange on the subject of defence evidence and the arrangement regarding the adjournment. However, my primary concern here was whether the appellant, in these circumstances, might have been misled and misguided in making her decision to remain silent. If such a possibility existed, I would have no choice but to allow the appeal on this point alone as a material irregularity and that justice had not seen to be done. Having reached that conclusion, it would not be appropriate for me to go on to deal with the other matters raised by the appellant.

8. Having further heard both counsel on the issue of retrial, I would agree with the respondent that such an order would be appropriate in the circumstances.

9. Hence, I shall allow the appeal on conviction and quash the sentence. I would order that this case be returned to the magistracy for a new trial before another magistrate.

Representation:

Mr David Leung, SGC for DPP, for HKSAR

Mr K.B. Egan, instructed by Messrs Massie & Clement, for the Appellant