The Queen v. Lam Ting Yu

HCMA000903/1986

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Headnote

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Material irregularity to defer cross-examination of prosecution wintness until after defendant's evidence - not necessary to make finding that prosecution witness' evidence malicious - magistrate's anxiety about police evidence.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 903 of 1986

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 8th October, 1986

Date of delivery of judgment: 8th October, 1986

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JUDGMENT

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1. The appellant was convicted of attempted theft. Counsel for the Crown conceded that the conviction should be quashed and I now give my reasons for doing so.

2. The circumstances are unusual. It was a case that depended on the evidence of one police officer. DPC 19426 said he saw the appellant tampering with the zipper of a lady's handbag near a vegetable stall. The woman looked at him and he moved away. He was then arrested but denied touching the handbag. He said he was looking for a job. His evidence in court was to the same effect. He is a man of good character hitherto.

3. The magistrate sentenced the appellant to 6 months imprisonment suspended for 12 months. That was on 29th November, 1985. No notice of appeal was filed, but on 30th July this year the appellant applied for an extension of time for giving notice of appeal against conviction.

4. The magistrate granted this application and then drafted a statement of findings in which he said inter alia

"Since I heard the case I have radically reappraised my attitude in respect of police evidence in such matters where there is no civilian corroboration. The reason for this is that I have determined a number of pickpocket and lesser charges which have persuaded me that as a matter of course some police officers are victimising innocent people and bringing them to court on trumped up charges. I would have liked to have taken issue with these matters but in none of them was there anything that I could use as proof for my conclusions other than my assessment of the word of one man against another.

5. He then cited four of his own cases in which he was dissatisfied with the police evidence.

6. The magistrate concluded by saying that he was now persuaded that he did the appellant a grave injustice by accepting the evidence of PC19426 and he invited this court to allow the appeal.

7. I enquired why an earlier appeal had not been lodged. Mr. Bharwaney - the appellant was unrepresented at trial - told me that he had been brooding with a sense of grievance and had failed to do anything about it.

8. The magistrate's approach to the appeal is a courageous one and I commend him for his initiative. It is a disturbing state of affairs, which I understand is to be brought to the notice of CAPO.

9. Quite apart from this matter, however, it was necessary to quash the conviction both on account of a material irregularity at the trial and a misdirection on the burden of proof in the magistrate's judgment.

10. At the end of the DPC's evidence in chief, the magistrate invited the appellant to cross-examine. Instead the latter began to make a statement. The magistrate then said he would recall the witness for cross-examination after the defendant himself had given evidence.

11. The magistrate asked the officer a few questions, the appellant gave evidence and the magistrate then recalled DPC 19426, who was questioned by the magistrate and by the appellant.

12. When convicting the appellant the magistrate said :

"Police Officers with their powers of arrest and ability to bring complaints as part of their job have considerable powers when dealing with the public. If I am to allow defendant's version to the point that I acknowledge that it raises doubts on the officers version, then that amounts to an acknowledgement that it is possible that officer Tam is so corrupt that he would act out of malice against an innocent member of the public just to enhance his arrest record. I find this possibility falls short of achieving doubts on the clear cut version of officer Tam. In the face of this well given evidence the only sensible course I can adopt is to reject the evidence of the defendant, which was not really enhanced by the dramatics he resorted to."

13. It is a serious irregularity to reserve cross-examination of a prosecution witness, as was done in this case. A defendant must know the whole case against him before he elects to go into the witness box. There is the further objection that it might become necessary to recall the defendant as a result of what the prosecution witness said in cross-examination and so on ad infinitum.

14. The error was compounded by the magistrate's approach to resolving the conflict in the evidence. It seems as though he might have been in doubt about the officer's evidence, but then backtracked in the light of the possible consequences of such a decision. That is not right. If a reasonable doubt exists, that is the end of the matter. The court does not have to go on to make a finding that the prosecution evidence has been given maliciously or corruptly.

15. For these reasons I allowed the appeal and quashed the conviction.

Representation:

Mr. M.J. Kenny, Senior Crown Counsel for the Respondent.

Mr. Mohan Bharwaney, instructed by D.L.A., for the Appellant.