Chiu Chun Chuen v. The Queen

CACC000415/1976

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Coram: Huggins, J.A.

Date of Judgment: 1st June 1976.

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JUDGMENT

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1. The Appellant was charged before the magistrate with membership of a triad society, namely the Luen Ying Sh'e Triad Society. He was not then professionally represented. He was convicted and was remanded for sentence. At the adjourned hearing Mr. Cotterill applied for a review of the conviction, a review which for some reason the magistrate thought could not be entertained until sentence had been passed, although he appears later to have resiled from that view. There were two further adjournments and finally Mr. Hampton appeared to argue the application. In the event the magistrate set aside the conviction and ordered a trial de novo before another magistrate. The Notice of Appeal takes the form of a Notice of Appeal against Conviction, but the case has been argued as an appeal against the order for a new trial and no objection has been taken on behalf of the Crown.

2. It is not necessary for me to decide whether the words "determination .... of any matter" in s.104(1) of the Magistrates Ordinance permits an application for review of a conviction before sentence has been passed: the magistrate in fact eventually adopted the more liberal of the two possible interpretations and the point has not been argued before me.

3. What is in issue is whether the learned magistrate rightly exercised his discretion. His order is attacked on two fronts. First it is said that he wrongly failed to hear the Appellant or his solicitor on the question whether there should be a trial de novo: he granted the application for a review and immediately directed a new trial. In my view that is not justly open to criticism. In deciding whether to grant an application for review a magistrate must of necessity consider what from the further proceedings would take. A party wishing to argue that they should or should not take a particular form ought to make his submissions on that as an integral part of his submissions on the application. It is true that sub-ss.(6) and (7) of s.104 distinguish between the application for review and the review itself and provide that it is "upon the review" that the magistrate shall decide whether to rehear the case wholly or in part or to order a rehearing before another magistrate. One would have thought it would be more convenient that the nature of the review should be decided upon before the review begins and in my experience the matter has always been dealt with at the time of the application. That has been the practice of the courts and it is analogous to the practice of the Court of Appeal (and of the Full Court before it) to treat the hearings of applications for leave to appeal as the hearings of the appeals in cases where the application is granted. The submissions on the application normally include argument on the from the review should take and that seems to me eminently sensible. In my view the decision of the magistrate to order a new trial if there was to be a review at all was so clearly right that even if there had been wrongful failure to hear the Appellant's solicitor on this matter no injustice would have been done and the appeal ought to be dismissed.

4. It is then contended that the magistrate exercised his discretion wrongly in ordering a trial de novo before another magistrate under sub-s. (7). There were two matters upon which the trial was unsatisfactory. Evidence was led of a confession statement, to which objection was taken by the Appellant. He was not asked upon what ground he objected and it is to be noted that he objected to only "part of the statement". I think it must be assumed that the objection was on the ground that the statement was not voluntary, although it may be doubted whether this particular statement could have been in part voluntary and in part involuntary. The important thing is that the magistrate appears immediately to have admitted the statement in spite of the objection and he subsequently made a finding in his judgment that the statement was voluntary. Whether, as I have suggested, the statement was immediately admitted or whether, as has been argued on the Appellant's behalf, the statement was admitted in the course of the judgment is immaterial: in the one case the evidence was admitted without ruling upon the objection and in the other the Appellant was called upon to enter on his defence without knowing the extent of the svidence against him. This was a procedural error for which the prosecution were not to blame, although an experienced prosecutor right have pointed it out to the magistrate. In all the circumstances it cannot fairly be said to be unjust that such an error should lead to a new trial rather than to a reconsideration of the case on the basis that the statement was excluded, a course which, it could be argued, would be most unsatisfactory.

5. The second complaint is that while the magistrate looked at one or more books on triad societies, as he was entitled to do under s.38 of the Societies Ordinance, he failed to reveal to the Appellant on what passages therefrom he based his decision. There is, it is said, on the record still no evidence that the Luen Ying Sh'e is a triad society and it would be wrong to give the prosecution an opportunity to fill the gap in their evidence. Mr. Hampton compares the position of the magistrate to that of an appellate court considering whether to order a new trial and he submits that an appellate court would never order a new trial merely to enable to prosecution to close a gap in its case. I think the answer is that in the present case there may or may not have been a gap in the evidence: it depends on what the magistrate found in the books. If the books proved that the Luen Ying Sh'e was a triad society, there was no gap in the evidence and the error was again one of procedure in that the magistrate failed to place on record and to tell the Appellant before calling on him for his defence what this evidence was. Only if the books did not prove that the Luen Ying Sh'e was a triad society was there a gap in the evidence. The magistrate knew what he had found, although he had not recorded it, and I do not think I ought to assume that he misread or misunderstood the books. Again, I take the view that the only error which has been affirmatively established is one of procedure and that that justified an order for a trial de novo.

6. The last submission is that even if it was otherwise proper to order a new trial that course would not be right in view of the absence of sufficient evidence to support the finding that the Appellant was a member of any society. Counsel for the Crown, indeed, concedes that there was insufficient evidence of membership, but he submits that the order can be supported on the ground that it would have been open to the magistrate, and would be open to another magistrate at the new trial, to convict the Appellant of "claiming membership". The only evidence to support the finding in fact made was that of a threat by the Appellant in the form of a statement that he was a member, and the advocates on both sides argue that such an admission, being in reality an admission of mixed fact and law, was in the circumstances not enough on which to found a conviction in a criminal case. The substance of the argument against treating this as sufficient proof must be that it is not only opinion evidence but opinion evidence upon a matter of law. Opinion evidence on a matter of fact is sometimes receivable even from non-experts. Thus a witness may be asked whether a defendant charged with driving a motor vehicle when he was under the influence of drink was drunk, but he may not be asked whether he was unfit to drive a motor vehicle: Reg. v. Davies 1962 3 All E.R. 97. The reason given for excluding the latter question is that it involves the very point the court has to decide. Evidence of identity is similarly evidence of opinion, but it is that fact which has raised so many doubts about the wisdom of admitting it without safeguards. The courts have tended to treat opinion evidence as admissible where it is in reality a compendious method of ascertaining observed facts, provided that it does not go to the ultimate issue.

7. Is the position different where, as here, the opinion is not as to a matter of fact but as to a question of law - in the present case whether what the Appellant has done has made him a member of a society? The argument suggests that there is this difference, that the Appellant, not being a qualified lawyer, may have believed that he was a member when in law he was not. Where it is sought to prove that a person is married it is not enough for the there party to the alleged marriage to assert that they are married: as a general rule it is necessary to produce expert evidence of formal validity of the marriage, although in some circumstances production of a marriage, although in some circumstances production of a marriage certificate is prima facie evidence of such validity. In R. v. Birtles (1911) 6 Cr. App. R. 177 the Court of Criminal Appeal said that it would not be enough evidence of a previous marriage that a person accused of bigamy had spoken of a woman as his wife, but the court held that such evidence coupled with production of a certificate of the marriage of a woman with the same name and a man with the same name as the prisoner was sufficient. That seems to me directly in point and I do not think the evidence of the Appellant's admission that he was a member of a society was, by itself, sufficient proof of membership.

8. That leaves Mr. Reid's argument that there was sufficient evidence of a claim to membership. I think this argument is sound. If the only reason for applying for a review had been that there was no evidence of membership, or if there had been an appeal on that ground, the magistrate or judge would have been amply justified in substituting a conviction, under the same sub-section, of claiming membership.

9. For those reasons I hold that the learned magistrate came to the right conclusion and I dismiss the appeal.

1st June 1976.

Representation: