Yuen Yat-ming v. The Queen

CACC001111/1981

[Brief Facts of Case - practice in relation to. Magistrate's record - duty to record evidence.]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1111 OF 1981

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BETWEEN

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Coram: O'Connor, J.

Date: 8 January 1982

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J U D G M E N T

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1. The appellant was convicted of possession of a dangerous drug, and sentenced to six months imprisonment.  He appeals against conviction.

2. The counsel, Mr Mackenzie-Ross, who appeared at the trial also appeared on the appeal. He expresses surprise at finding on the file a document entitled Brief Facts of the Case.

3. My own surprise would be greater were it not for the fact that I have previously seen such documents on magistrate's files, when they ought not to be there. Mr Mackenzie-Ross says that no such document was referred to at the trial. Certainly the magistrate's record does not refer to it.

4. The inference appears to be that it was a secret communication between the prosecutor and the magistrate. This ought not to happen.

5. In the District Court there is a practice that prior to plea the prosecution will prepare a summary of facts, to be handed to the court and defence, in the event of a plea of guilty. If there is a plea of not guilty, the prosecution prepare a summary of the evidence they propose to call, and send it to the court and the defence prior to the commencement of the trial.  Those helpful and-sensible practices are based on a Practice Direction issued, by the then Chief Justice, an 26th November 1971. They do not involve any secret communication between the prosecution and the court.

6. I can see no objection to the prosecution, in a Magistrate's Court, preparing a summary of facts and handing it to the court, either as a basis for sentencing following upon a plea of guilty, or as in effect the prosecutor's opening, in a contested case. However what is objectionable is when it is not also given to a defendant or his counsel, and if necessary explained to the defendant.

7. The ground of appeal in the present case is that the learned magistrate did not record some significant evidence. What happened was that two police officers in the course of their evidence, read at some length from their notebooks. What they read was not recorded by the learned magistrate, nor were the notebooks put in as exhibits.  I am in no position to know that they read. The learned magistrate in his findings agrees that they read at length from their notebooks, and says that the passages appeared to generally agree with the rest of their evidence. He also says that it was the duty of defence counsel to note the discrepancies.

8. Whether defence counsel keeps a note of the evidence, or not, does not relieve the magistrate of the duty to keep such a note of the evidence as will enable the appellate judge to perform his duty.  Crown counsel quite properly conceded he could not support the magistrate. He did not seek a retrial.

9. I allowed the appeal and set the conviction and sentence aside.

Representation:

D, MacKenzie-Ross (D.L.A.) assigned for the appellant

P. F. Conran, Crown Counsel, for the Crown/respondent