Szeto Wah v. The Queen

CACC001084/1981

Magistrates' court - Confused state of record of proceedings. Findings unclear concerning burden of proof.  Failure to advert to contradictions on prosecution evidence.  Conviction unsafe

BETWEEN

Coram: Mr. Commissioner Davies

Date: 8 March 1982

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JUDGMENT

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1. Yesterday, I decided to allow the appeal against conviction in this case. Crown Counsel did not ask for an order for a re-trial, and in all the circumstances I did not in any event consider that course desirable. I now give more fully my reasons for allowing the appeal.

2. The first comment which I wish to make concerns the record of proceedings in the Court below. There are many places in that record where what the witnesses are noted as having said in evidence is incomprehensible. There are other places where what is noted is at best ambiguous. For this reason alone my task has been made immeasurably more difficult than it should have been.

3. It must always be borne in mind that the record of proceedings in the Magistrate's Court is not merely a note for his own reference, but an official document of great importance, particularly in the event of an appeal. This has been emphasized on many occasions, one of which was the judgment in WONG Kui-ping v. R.⁽¹⁾

4. I am very well aware of the pressure of work in the Magistrate's Courts and the resulting need to finish trials as quickly as possible, but a certain standard of record-keeping is essential. With respect to the learned magistrate, I have to say that the record in the present case falls below that standard. Some of it is set out in question and answer form - notably the cross-examinations. The remainder appears to be in narrative form, with a few unmarked questions noted here and there.

5. Many judges and magistrates find it necessary to keep records in narrative form because they are physically incapable of writing fast enough to record question and answer without unduly slowing the proceedings. It is a matter of choice, and there is nothing objectionable about a well-written narrative record. Indeed it is to be preferred to poorly-recorded questions and answers. Wherever a record is kept in question and answer form, however, it is important that it should be clearly shown which is question and which is answer.

6. I turn now to the learned magistrate's findings.

7. The first aspect of them which has made me uneasy is that there is nothing therein to indicate that the learned magistrate kept it in mind that the onus of proof lay upon the prosecution throughout.

8. I am aware that he has said in his findings:  "I was satisfied that the drugs were the Appellant's ..." and: "I was satisfied that the drugs were in the Appellant's possession and convicted him accordingly.

9. Earlier in his findings, however, the learned magistrate set out at some length certain discrepancies which he noted in the defence evidence, and proceeded to reject the evidence of the Appellant and his witness. He then went on to say that he accepted the evidence of the two police officers without hesitation.

10. Unfortunately, he has not made it clear that his acceptance of the prosecution evidence is unconnected with his rejections of the defence case.

11. It is, of course, not necessary to do this in every case, but in the present case, in my view it was, because there were apparent discrepancies and unsatisfactory features in the evidence of the police officers, to which the learned magistrate did not address himself.

12. The most important witness for the prosecution was PW1, PC 13401.

13. He alone gave the vital evidence linking the Appellant with the offence charged - namely, that he saw the Appellant place something underneath a sack lying on the embankment of a garden. Later, when the sack was lifted, a packet containing dangerous drugs was found underneath.

14. At that later stage, Auxiliary PC 2785 (PW2) was present, and his evidence was to the same effect as that of PC 13401. It was ground common to both prosecution and defence that the Appellant denied that the bag of drugs was his.

15. Thus, the evidence given by PC 13401 as to his earlier observation of the Appellant's movements is virtually the crux of the whole case.

16. What disturbs me about that evidence, (but apparently did not disturb the learned magistrate), was 13401's statement that he was observing from a distance of ten shop-spaces away.  (record page 2)

17. The witness was apparently not asked to indicate what distance he meant by that, but I can safely take judicial notice of the fact that a "shop-space" as a description of distance by Hong Kong witnesses invariably means the width of an average shop-front. This of course can be anything from about six feet to two or three times that distance, according to what kind of shop the witness had in mind; but it is rarely taken to mean anything less than about ten feet. The witness should have been asked to clarify this, but in any event, one can safely assume that the distance which he had in mind was a very substantial one.

18. Although the witness, when cross-examined by the Appellant's counsel or solicitor, denied that there were many people in the vicinity at the time, this is somewhat difficult to accept - bearing in mind that it was at about 9.00 a.m. in a resettlement estate where there are restaurants etc. nearby. There is no evidence that the weather was inclement.

19. This is a point which was reiterated by the Appellant in the course of this appeal, and it seems to me a valid one. PC 13401 was in uniform at the time, and would naturally wish to be as inconspicuous as possible. Indeed if there were so few people in the vicinity, how was he able to approach the Appellant at a place only ten feet away from the sack, after moving from his original observation place, apparently unnoticed?

20. These are matters which in my view should have raised a considerable measure of suspicion in the mind of the learned magistrate, as to whether 13401 truly saw what he claimed to have seen.

21. There is also a substantial discrepancy between the evidence given by PC 13401 and that of Auxiliary PC 2785. The former said in evidence (page 2 of the record):  "... Aroused my suspicion I radioed colleague nearby and asked him to come. Auxiliary Constable 2785. He came a few minutes later, I caught hold of the defendant."'

22. The clear tenor of that evidence is that the Appellant was not arrested until after the arrival of 2785.

23. 2785 on the other hand said (record page 5): "... Yes. - went to Block 3 see PW1 there, Police Constable said intercepted man and asked for my assistance."

24. There is a different version of events entirely from that given by 13401, who, according to himself had not yet intercepted the Appellant at that stage.

25. Such a discrepancy is of considerable importance in the light of the Appellant's evidence that 2785 was at that time busy arresting another man, who was later released by PW1. This suggestion was clearly denied by both officers.

26. It was not without some misgiving that I decided to interfere with the learned magistrate's verdict, since he had the advantage of seeing the demeanour of the witnesses and hearing the evidence at first hand.

27. Indeed, there are cases where it is not necessary to give reasons for accepting or rejecting evidences.

28. I respectfully agree with the comments of McMullin J. (as he then was) in YEUNG Chiu v. R.⁽²⁾:

"Now it is always a delicate point for a Court of Appeal to decide to what extent it is entitled to intrude upon the domain of a trial judge or magistrate in respect of findings of primary fact. Certainly, there are cases in which the body of evidence led on behalf of the prosecution and the body of evidence led on behalf of the defence are each of them so simple and straight-forward, and so succinct and within such a short and clear compass that the magistrate can virtually do no more than recite the evidence and then say that he believes one set of witnesses rather than another. Beyond such a simple case I think it may be said that there are cases, somewhat more complicated than that, in which nevertheless the failure of the judge or magistrate to assign reasons for rejecting one b body of evidence rather than another may not necessarily be fatal, since it may be evident, from what has been recited of the evidence, that such discrepancies or incoherences as exist in the story which he eventually does accept are of minor nature and therefore too trivial to have disturbed the judgment of a reasonable magistrate. But where the body of evidence upon which the Crown relies in a criminal case shows on the face of it, difficulties and incoherences of a substantial sort, then I think in any such case it must always be the duty of a magistrate or judge, in giving reasons for deciding which body of testimony he believes, to discuss these difficulties and to give some reasonable indication of the manner in which he has disposed of them."

29. It is my opinion that the present case falls within the third category referred to by Mr. Justice McMullin.

30. There were difficulties which arose from the prosecution's evidence. Since they were not mentioned by the learned magistrate, there is no indication as to whether or not he considered them or if he did, how he disposed of them before wholeheartedly accepting the evidence of the two police officers.

31. For these reasons, I decided that it was unsafe to allow the conviction to stand, and accordingly set it aside.

32. Bearing in mind that the Appellant has been in custody for some four and a half months already, and being uncertain how long it might be before he could be re-tried, I was not moved to order a re-trial.

(1)    Criminal Appeal No. 1019 of 1977

(2)    Criminal Appeal No. 1043 of 1975

Representation:

Appellant in person

Mr. Graham Jackson, Crown Counsel, for Crown/respondent