The Queen v. Au Yeung Tat-shing (D1) and Another
Read the full judgment text of CACC 19/1985 on BabelCite. This Court of Appeal judgment was delivered on 8 February 1985 before Li, V.-P., Yang & Barker, JJ.A..
Criminal law – conspiracy to export prohibited articles – video cassette recorders without licence – trial in Magistrates' Court – unrepresented defendant giving evidence but calling no other witnesses – prosecution's right to make closing speech – Magistrates' Ordinance Cap. 227 s.19 – whether prosecution has right to closing address against unrepresented defendant who alone gives evidence – held, yes, section 19(2) gives each party the right to make a closing speech and does not limit this right to cases where the defendant is represented or calls witnesses as to the fact – distinction between trials on indictment (Bryant, Tong Yuk-tim, Man Ching-ip) and Magistrates' Court trials – section 19(1) and (2) draw clear distinction between 'evidence on oath' and what each party has to say – Magistrates' Courts Rules 1981 (England) rule 13 considered but not directly applicable to Hong Kong – case remitted to High Court for remaining grounds of appeal to be determined – suggestion that legislature clarify position regarding prosecution's right to closing address in all circumstances – better practice for prosecuting counsel not to comment on evidence against a defendant who has not given evidence or called witnesses.
Legal issues: Prosecution's right to make a closing speech in a Magistrates' Court when defendant is unrepresented and calls no witnesses except himself
Outcome: Ground of appeal regarding the prosecution's right to make a closing speech rejected; case remitted to the High Court for the remaining parts of the appeal to be determined.
Cited by 11 cases
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CACC000019/1985 IN THE COURT OF APPEAL
BETWEEN
____________________ Coram: Hon. Li, V.-P., Yang & Barker, JJ.A. Date of hearing: 8th February, 1985. Date of judgment: 8th February, 1985. ____________ JUDGMENT ____________ Barker, J.A. 1. On the 13th November, 1984 the Appellants were convicted by a Magistrate of conspiracy with each other and with others to export prohibited articles, namely 78 video cassette recorders without a licence contrary to Common Law and to Regulation 4 of the Import and Export (General) Regulations Chapter 60. 2. At the hearing, each Appellant was unrepresented and each gave evidence but neither called any other witnesses. At the close of the defence cases, the Magistrate permitted the prosecution to make a closing speech. 3. The Appellants appealed against their conviction to the High Court on a number of grounds. One of these grounds only was ordered by the High Court Judge to be argued before the Court of Appeal pursuant to section 118(1)(d) of the Magistrates' Ordinance Cap. 227. 4. This ground is as follows:
5. It is to be observed that all the foregoing three cases involved trial by jury. The present case came before a magistrate and it was argued before us that there is a distinction to be drawn between trial with a jury (and before a District Judge) and a prosecution before a magistrate. 6. Section 19 of the Magistrates Ordinance Cap. 227 provides, so far as is relevant:-
7. It seems to us that section 19(l) and (2) make a clear distinction between "evidence on oath" and what each party has to say (the emphasis is ours). Section 19(2) in our view gives each party the right to make a closing speech, and in no way limits this right to cases where a defendant is represented or, if unrepresented, himself gives evidence and calls witnesses as to the fact. 8. This view finds some support from rule 13 of the Magistrates' Courts Rules 1981 in England subrule 4 of which reads:
and subrule 5 provides:
9. The cases mentioned in the reference to us, and cited before us, were all cases on indictment and in our view are irrelevant to a trial in a Magistrates Court. Whatever be the position as to closing speeches so far as trials by jury or before a District Judge are concerned (and we express no view upon this matter) we are satisfied that the prosecution does have the right to make such a speech in the case of an unrepresented defendant who alone gives evidence in a Magistrates Court. 10. We therefore remitted the case to the High Court for the remaining parts of appeal to be determined. Li, V.-P. : 11. I have the benefit of reading the draft judgment of my brother Barker. I am in agreement with the conclusion albeit with some hesitation. Sect 19(2) of the Magistrates Ordinance appears to provide that each party may make a closing address. Yet the provisions in Sect. 19(1) of the said Ordinance seem to pre-suppose that the Defendant has given evidence and/or called witnesses. 12. In the instant case only one Defendant had given evidence. Prosecuting counsel saw fit to exercise his right to make a closing address. In so doing he commented on the evidence against the other Defendant who did not give evidence or call any witness. Speaking for myself I would have thought prosecuting counsel should have exercised his right to a 2nd address very sparingly. Even if he chooses to exercise it the better practice is that he does not go into the evidence against the Defendant who has not given evidence or called witnesses. 13. If it is the intention of the legislature that prosecuting counsel should have a right to give a closing address in all circumstances I suggest that there should be clear provisions. It is hoped that the proper authority will look into the matter to clarify the position. 14. Whilst it is appreciated that all the English and Hong Kong authorities cited to us apply only to a trial on indictment and are therefore applicable to the District Court it is of interest to observe that a District Judge is also sitting alone without a jury. 15. Before a District Judge prosecuting counsel has no right to a closing address against a Defendant who is not legally represented and has not given evidence or called witnesses. If it is intended that the practice in Magistrates Court be different it is better to make express provisions rather than relying on general terms or to pray in aid the Magistrates' Court Rules in England which have no application to Hong Kong. Representation: R. Whitehead, instructed by (H. M. So & Co.) for Applicants. A. Duckett, Q.C. & S. Stone for Crown/Respondent. |
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