Li Shu Pui v. The Queen

CACC000449/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 449 OF 1972

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Coram: Leonard J.

Date of Judgment: 5 August 1972

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JUDGMENT

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1. I have decided that this appeal must be allowed but since I have decided to take the unusual course of directing that the case shall be heard de novo I do not propose to discuss the facts at any length. It will suffice to indicate the two matters which cause me concern.

2. The appellant was charged with two offences firstly possession of an offensive weapon in a public place on the 26th April 1972 and secondly robbery on the 25th April 1972. As to the first offence the evidence of the police was that he was stopped in the street about 4.00 p.m. on the 26th April 1972 searched and the weapon found. As to the second offence the evidence for the Crown was that an unreported robbery was committed on the 25th April 1972 and the victim, proceeds and place of the robbery discovered after the arrest of the appellant. The victim did not identify the appellant.

3. In the course of the trial a statement alleged to have been made by the accused voluntarily after his arrest was tendered and was the subject of objection. The learned magistrate held a voire dire at the conclusion of which he decided that the statement was voluntary and admitted it in evidence. Having done so he was apparently (I do not suggest improperly) afflicted by scruples. He reconsidered his order, set it aside and ruled that the admissibility of the statement would be determined at the close of the case for the prosecution. At the close of the case he ruled the statement inadmissible very properly giving the benefit of a doubt as to voluntariness to the appellant. It is clear from the ruling that he then made that he was acutely conscious as to the burden of proof in criminal cases.

4. The appellant elected to give evidence on oath. His defence (a not uncommon one) was that the case against him was a frame-up from beginning to end. He said he was arrested at noon and not at 4.00 p.m. that he was not in possession of the knife and that he did not assist the police to find the proceeds or place of the robbery. He called his mother to give evidence on his behalf and she swore that the police had approached her at her stall in the market, at 3.00 p.m. on the afternoon of the 26th April 1972.

5. In his statement of findings the learned magistrate makes findings of fact which, if correct, amply justify the conviction. One of the findings however indicates a possibility that he may have been influenced by something that that appeared in the notebook in which statement, which he held inadmissible, was recorded. My second reason for concern arises from the fact that the learned magistrate has failed to refer to the evidence given by the appellant or by his mother. He saw and heard these witnesses. I have not. His duty was to assess them. Complete failure to allude to their evidence is, in my view, failure to observe the provisions of Section 114(b) of The Magistrates Ordinance which requires a magistrate to prepare "a signed statement of his findings on the facts and other grounds of his decision". The learned magistrate has failed to give any grounds of his decision in particular of his assessment of the witnesses for the defence.

6. I was referred in the course of argument to LAM Tin-chung v. The Queen⁽¹⁾. That was an appeal from the District Court. The statutory obligation imposed on a District Judge is to "place on record a short statement of the reasons of the verdict" (Sec. 35 District Court Ordinance). The duty imposed on a magistrate, by Section 114(b) of The Magistrates Ordinance, once notice of appeal has been given, to "prepare a signed statement of his findings on the facts and other grounds of his decision" cannot in my view be less onerous than that cast on a District Judge whether or not notice of appeal is given. In the course of that case the Full Court stated:

"obviously, a tribunal must evaluate the evidence before it ..... But simple justice demands also that it should be made apparent that such an evaluation has in fact been made; the public interest, not only the interest of the parties, requires no less."

Such an evaluation is not apparent from the statement of findings and other grounds in this case. This case therefore differs from those cases in which one is in doubt as to what facts were found, very clear findings of fact which if correct would amply justify the conviction were made. It is the manner in which the facts were found rather than the conclusions to be drawn from them that is in question.

7. For these reasons I would allow the appeal. In all the circumstances of the case I do not think it would be unfair to direct a retrial before another magistrate which I accordingly do and the case will be remitted accordingly.

Representation:

Sakhrani (Kwong, Lam & Chan) for the appellant.

Stevenson for Respondent.