Ngo Ngan Ting v. The Queen

CACC001065/1975

IN THE SUPREME OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.1065 of 1975

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Coram: Pickering, J.

Date of Judgment: 11th February 1976.

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JUDGMENT

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1. The appellant was charged before a magistrate with two charges of blackmail contrary to s.23(1) of the Theft Ordinance (Cap. 210) and one charge of professing to be a member of a Triad Society contrary to s.20(2) of the Societies Ordinance (Cap. 151).

2. The allegation in regard to the blackmail charges came from a former friend of the appellant who said that he came to know the appellant when they were both trying to come to Hong Kong from China as illegal immigrants. The evidence of this witness was that in Hong Kong at the beginning of 1975, the appellant asked him to lend money to the appellant but that he told the appellant that business was slack and that he was unable to do so; that on the 30th September 1975 the appellant visited the witness's factory with five other young men and asked for $10,000; that he was beaten upon refusing to hand over the money and threatened that if he reported the matter he would be beaten to death; and that on the 9th October three persons, not including the appellant, but including three of the five who had previously visited him, came to his factory on three occasions.

3. For some unexplained reason the witness delayed for some eight days in reporting this matter to the police and thereafter, on the instructions of the police, met the appellant by arrangement at a restaurant. At this meeting, the evidence continued, the appellant asked for $5,000. The police having given the witness some $500, the witness told the appellant that he had only $500 on hem whereupon the appellant insisted upon receiving $5,000. The police arrived and apprehended the appellant. It was the appellant's version that he had refused to accept the $500 believing that if he accepted so small an amount he would never recover the balance of what the witness legitimately owed him.

4. With regard to the charge of professing to be a member of a Triad Society the evidence consisted of a confessional statement made by the appellant to the police in reply to a caution.

5. It was the evidence of the appellant that he and the alleged victim had known each other in China since they came from the same native place and that they both came to Hong Kong in 1966. The alleged victim, according to the appellant's evidence, had asked him, when in Mainland China, to help the alleged victim to enter Hong Kong as an illegal immigrant saying that in return, when the appellant arrived in Hong Kong, the former would give him $10,000 to $20,000 for the purpose of starting a business. It was the appellant's complaint that although both were now in Hong Kong the complainant had not paid him any money and he added that whilst the complainant was merely an employee in Hong Kong the appellant, appreciating that the complainant could not pay any money to him, refrained from asking for it but that after a number of years he learned that the complainant had become wealthy and had married; and that accordingly, on the 28th September 1975, he paid a visit to the complainant and had a friendly discussion with him about payment of the money which he alleged was due to him. It was the appellant's further evidence that he had helped the complainant to make his way from one district in China to another, that he had bicvcles for the complainant and others to get up to the hills and instructed them how to get to Macau. He further testified that he had not asked for $10,000 but that the complainant had volunteered to pay $10,000 to $20,000. In cross-examination he denied either of the alleged blackmail demands.

6. One of the grounds of the appeal is that the learned magistrate failed to inform the appellant, who was unrepresented at his trial, of his right to call witnesses in his defence.

7. In the case of Reg. v. Yeung Cheung⁽¹⁾ the Full Court said:

8. I find myself in precisely the same difficulty. I am most reluctant to believe that an experienced magistrate would ever fail to inform an unrepresented defendant of his right to call witnesses and I am extremely doubtful that such a failure occurred in the present case. But the record lacks any positive indication that the appellant was informed of the right to call witnesses whereas on the other hand there was a clear indication that the appellant had in mind witnesses who, he might well have wished to call in relation to the blackmail charges and who were not in fact called; for in his testimony in regard to the alleged demands for respectively $10,000 and $5,000, the appellant said "This matter was known to my native countrymen and they all said he is a heartless man and he should pay". The reference was to the alleged promise to pay in return for assistance in leaving China and illegally entering Hong Kong. In the light of that clear indication that the appellant had in mind witnesses whom he night well have wished to call, can I be certain, in the absence of any indication on the record, that there was no failure to inform this unrepresented appellant of his rights in the matter? The appellant's case was that he had a claim of right to the $10,000 and his evidence-in-chief runs in part as follows:

9. The use of the present tense in the last sentence suggests that the native countrymen in question were people who were at the time of the trial in Hong Kong and who were acquainted both with the defendant and the complainant. What their evidence would have amounted to had they been called, it is impossible to say. It might have been first-hand evidence from persons who heard the offer which the appellant alleged to have been made by the complainant or it might have been useless as constituting mere self-serving hearsay on the basis of what the appellant had told the witnesses. But was the opportunity of putting it forward for evaluation ever offered? I feel strongly that it must have been but I cannot be certain and my nagging uncertainty is not relieved by the following passage in the record which appears immediately after the close of the case for the prosecution:

10. The phrase "courses open to Defendant explained" could mean that the appellant was told of his right to give evidence or to remain silent and also of his right to call witnesses. But the ensuing question and particularly the answer thereto leans somewhat to the view that what had been explained was merely the right to give evidence or to remain silent.

11. The decision upon this ground of appeal has agitated my mind considerably but in the result, and subject to a re-trial, the appeal must succeed upon this ground in regard to the blackmail charges.

12. The case underlines what was said in Reg. v. Yeung Cheung⁽¹⁾ as to the desirability of judges and magistrates noting on the record that they had ascertained from the accused whether he did or did not wish to call witnesses. That is an injunction which I echo in a most heartfelt manner.

13. At the same time I am far from saying that the omission of a professional magistrate specifically to endorse upon the record that an unrepresented appellant was informed of his right to call witnesses, will necessarily result in a successful appeal. Appellate courts must and do recognize that professional magistrates are indeed professionals and as such entitled, upon a routine issue of this sort, to the benefit of any doubt. What bedevils the present case is the ambiguity of the learned magistrate's note in regard to the courses which were explained to the appellant and when that is coupled with the apparent existence of witnesses who may have given material evidence to the effect that the appellant's claim was a claim of right, an appeal court cannot assume what it would otherwise readily and rightly have taken for granted.

14. A further ground of appeal was to the effect that the learned magistrate had failed to inform the appellant of his right to cross-examine the prosecution witnesses. In the light of the note on the record "Cross-examination none" made by a professional magistrate I think it self-evident that the opportunity for cross-examination was in fact given and I repeat that I am extremely doubtful if the opportunity to call witnesses was not also given but I cannot, in the particular circumstances of this case, be sure.

15. So far as the offence of professing to be a member of a Triad Society is concerned, the magistrate had before him a confessional statement of the appellant to this effect and, the learned magistrate having found that statement admissible, I am unable to accept, simply because he did not record the fact upon his record, that he failed to consider the exercise of his residual discretion to exclude the statement. The confession was highly relevant and as such admissible (Kuruma v. Reg.⁽²⁾). The residual discretion, though always in the mind of a professional magistrate, need not in the circumstances of a confession such as this, occupy the forefront of his mind to the point where he must record his mental processes. There was no ground in the present case for the exercise of the residual discretion to exclude the statement.

16. Another matter advanced by Mr. Sanguinetti upon this third charge was a query as to whether or not an admission to a police officer of membership of a Triad Society amounted to professing to be a member. This question was answered in the affirmative by my brother Yang in Criminal Appeal No. 937 of 1975 and, having carefully considered his reasons for that affirmative answer I find no cause for disagreeing. At the same time it may be legitimate to wonder why the offence charged was that of professing membership rather than that of membership simpliciter.

17. A further ground of appeal was that the learned magistrate did not make any sufficient findings of fact and did not properly evaluate the evidence. In the light, however, of the confessional statement held to be admissible it is difficult to see what specific evaluations of fact were necessary upon the issue of professing to be a member of a Triad Society and what further findings of fact were needed.

18. This case again emphasises the importance of the record in the court below. In Criminal Appeal No. 120 of 1975 I was constrained to allow the appeal because the record failed to indicate where questioning by the magistrate ended in some fifteen instances thereby leaving a doubt as to whether or not the magistrate was or was not "in the arena". The present case, again because of a lack of completeness in the record as regards the procedure adopted, leaves a sufficient doubt for it to call to be resolved in favour of the appellant. Those of us to whom it falls in the Supreme Court to hear magisterial appeals are not unaware of the pressures inherent in magisterial trials for most of us have ourselves been magistrates in Hong Kong. But those pressures are pressures are probably greatest upon the individual in any magistracy who, for the time being, is responsible for the morning list and are somewhat more relaxed, though still considerable, in the case of magistrates trying cases in respect of which there have been earlier pleas of not guilty. At this stage, despite the pressures, very considerable care in regard to the completeness of the record as it relates to the procedure adopted, is necessary. I am far from suggesting that magistrates should conduct their trials with one eye on the appeal court but it will be appreciated that in most cases the record is all the appellate court has to go upon. I should not like anything I have said to be taken to imply that this court will encourage nitpicking attacks upon the record for it is the duty of the Bar not to make unjustified attacks (see Reg. v. Morson⁽³⁾. Yet there may be cases, such as Criminal Appeal No. 120 of 1975 and the present case, in which a doubt exists.

19. The appeal as to conviction upon the two charges of blackmail is allowed; the convictions are quashed and the sentences set aside but I order a retrial in respect of those two charges. The appeal upon the charge of professing to be member of a Triad Society is dismissed.

Representation:

A.J.J. Sanguinetti (D.L.A.) assigned for appellant.

G.W. Alderdice, C.C., for respondent.

(1) 1959 H.K.L.R. 338, 340.

(2) (1955) A.C. 197.

(3) The Times 28/1/76