The Queen v. Mak Lam Po

CACC000399A/1987

Exchange of lists of authorities : Hong Kong Practice.

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Coram: Silke, V.- P., Power & Penlington, JJ.A.

Date of Hearing: 8 March 1989

Date of Judgment: 27 June 1989

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J U D G M E N T

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Silke, V.P. :

1. On 8th March 1989 we entertained an application for costs in this successful appeal. The appeal was allowed on 7th December 1988 but no application was made at that time.

2. Two matters have arisen from the argument in the course of the hearing of the costs application. The first : Mr. Coghlan who appeared for the Crown at trial, at the hearing of the appeal and in this application, informed us that a photostat exhibit which was amongst our papers and marked "P1" had not, in fact, been before the trial judge at all. What had happened was that the main exhibit upon which much argument devolved both at trial and before us, a Black Notebook, had for the purposes of the investigation been photostated. D2, a charged co-conspirator, had turned Queens Evidence. To assist the investigation he was taken through the photostat upon which he and the investigators then made notations and calculations. One of those notations played a substantial pert in the allowing of Mak Lam Po's appeal. We had been under the firm impression that this photostat was before the trial Court and that it should not have been.

3. The Black Notebook was in this, and had been in a number of other trials of like nature, evidence. When the appeal bundle came to be made up, the Black Notebook was itself not available - though we had it before us subsequently in the course of the appellate hearing - and the person who made up the bundle took it upon himself to place the photostat amongst our papers. That this was so became known to Mr. Coghlan before the appellate hearing concluded. But he did not see fit to bring it to our attention. He apparently felt it to be unimportant, that there were a multitude of other points being raised and, in his consideration of those points, he forgot to mention it.

4. We thought it proper to ask the Registrar to cause enquiry to be made as to how this unfortunate occurrence had happened. Its result is that an inexperienced judicial clerk, who has since left the Judiciary, committed the error. Greater supervision will be exercised in the future.

5. The second point was that Mr. Sanguinetti, relying on the Practice Direction relating to the filing of Lists of Authorities which is silent as to such lists being sent to the other side, did not provide the Crown with his List.

6. In this case nothing turned upon that and the Crown were not in any way embarrassed. However, had it been the case that the Crown needed time to consider the authorities to be cited we would have, unhesitatingly, granted an adjournment for that purpose. Common sense and common courtesy dictates that if there is a List of Authorities, then both sides should be aware of it. This is not a game. This Court attempts, subject as always to human frailty, to do justice. It needs the assistance of counsel. It needs to be fully advised. It is highly desirable that both sides have an opportunity to consider and to address us upon the authorities to be relied upon.

7. Further the dangers inherent in the use of unreported judgments undisclosed to the other side and in this Courts becoming per incuriam are considerable. As Viscount Haldane L.C. said in G. and C. Kreglinger v. New Patagonia Meat and Cold Storage Co. Ltd. [1914] A. C. 25 at p.40:

"To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. But when a previous case has not laid down any new principle but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblance in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance."

8. Counsel and instructing solicitors would in future be well advised, and not least in the interests of the lay client, to see that Lists of Authorities are furnished to the other side at the same time as they are filed in Court and that copies of all unreported judgments it is intended to cite be furnished in similar fashion. We say this in full awarness of the provisions of subsection (3) of Section 9 of the Criminal Procedure Ordinance.

9. Now coming to the application itself. As we indicated in the judgment of the Court allowing the appeal at page 14, the "apparent reliance of the trial judge on the possibly misleading certified translation" played a large part in our determination. We felt that this, and the defence relevant only to Mak Lam Po, should have been separately considered by the trial judge and we said:

"(It) clearly was a defence which may well not have been found to have merit but it does not appear to have been properly evaluated."

10. This prosecution was properly brought. Mak's meter had a forged seal upon it. In his cautioned statement he had said that he had been approached by the China Light and Power Company conspirators who desired to bring him into their general scheme of altering meters to show a lesser consumption of electricity than was the reality. He stated himself to have said to them that as his electricity consumption was so low it was not worthwhile. He did not see fit to bring their approach to the notice of China Light and Power, or of anybody else for that matter.

11. While we may have allowed this appeal upon a wrong basis, and we think that any misleading of the Court, with respect, emerged from the Crown rather than from Mr. Sanguinetti, nevertheless it was a successful appeal.

12. We had hoped that this application could have been adjourned to be heard with other applications for costs which had been set down for full argument as to the principles to be applied. But refixing the hearing date for this purpose, suggested by me prior to the hearing day, was rejected by the Applicant and his legal advisors. Our intention, having been fully addressed upon principle, to consult with all other members of the Court of Appeal on the formulation of the principles applicable to Hong Kong, was known.

13. We were and are firmly of the view, whatever the result of those other applications might be, that, exercising our discretion, the Applicant here should have his costs of the appeal but should not have costs in the Court below. The Registrar is directed to ascertain the sum which should include the costs of taking judgment and of the argument leading to it.

Representation:

A.J.J. Sanguinetti, Esq. & Wilson Chan, Esq. (Joseph W.K. Poon & Co.) for Applicant

C.D.F. Coghlan, Esq. for Crown