Tam Wai-keung and Another v. The Queen

CACC001114/1981

Criminal procedure - characteristics of trial in "open court" - magistrate's order to exclude section of the public authorised by S. 122 of the Criminal Procedure Ordinance and his discretion properly exercised.

BETWEEN

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Coram: Fuad J. in court

Date: 22 February 1982

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J U D G M E N T

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1. The two appellants, aged 17 and 15 respectively, were convicted by a Magistrate's court of two offences of blackmail contrary to section 23(1) of the Theft Ordinance. The 1st appellant, who appeals against conviction and sentence, was ordered to be detained in a Training Centre. The 2nd appellant, who appeals only against conviction, was placed on probation for two years.

2. The facts revealed by the evidence accepted by the learned magistrate need not detain us, for the original grounds upon which the appeals of both appellants were based (that "there was no sufficient evidence to found the conviction") were abandoned.   All I need say is that it was an unpleasant case of playground bullying that developed into blackmail and that the two victims were 13 and 14 years old respectively.

3. When the appeal came first before me a new and late ground of appeal was filed: that the magistrate, by ordering a section of the public to leave the court, had failed to comply with section 11 of the Magistrate's Ordinance, thereby rendering the trial a nullity. When giving leave to the appellants to file this fresh ground of appeal, I thought it right to grant Crown Counsel's application for an adjournment so that he could consider the authorities which would be relied upon and prepare his arguments. The record of the trial contained the following note soon after the 13 year old complainant, who was the first witness for the Crown, began to give his evidence -

While granting the adjournment I said -

".........In the meantime, the Registrar is asked to send a copy of the new grounds of appeal to the trial magistrate and to invite him to furnish this Court with a report as to the circumstances in which he decided to make the order recorded at page 8 of the typed record of the proceedings, and the reasons therefor, because I consider that such a report would assist me."

4. The report was duly furnished, was supplied to counsel for the parties, and was before me at the resumed hearing of the appeal on the 20th February.  At the conclusion of the hearing I dismissed the appeals against the convictions (the 1st appellant's appeal against sentence being abandoned) and now give my reasons.

5. The learned magistrate's report, is in the following terms -

"When CHAN Wing-sing (PW1), a boy of 13 years of age, was called to the witness box he looked very frightened and apprehensive and he had difficulty answering even the preliminary questions put to him by the Prosecutor.

The Prosecutor, Inspector LEE Wai-sum, informed the Court that she had been advised by the parents of PW1 and LEE Shu-keung (PW2) that many friends of the Defendants had come to court to hear the case and that they felt very worried having to give evidence in their presence. "  I indicated that I would not exclude any person from the court unless I found it necessary in the interest of justice to do so. I told PW1 that he should not be frightened to tell the truth to the court and he should try to keep calm. Despite my advice to him, PW1 was apparently still feeling very uneasy and seized with fright. I noticed that he kept looking away from those boys, about 30 of them, who were seated together in 3 or 4 benches and who were mush bigger boys of about the same age as the First Defendant. I had also noticed that those boys were looking hard at PW1 while PW1 was giving evidence and that were some of them who smiled and whispered. Although the boys did not create any disturbance.  I was satisfied that their presence in court in such a large group was very unnerving to PW1 and would make it very difficult, if not impossible, for him to give his evidence freely and with the sense that it was safe for him to do so. It was obvious to me from my own observation (apart from what the Prosecutor had already told me) that those boys were friends of the Defendants.  I also sensed that the case might have a triad connotation which could have caused PW1 to fear to give evidence in the presence of those boys.

I considered that it was necessary for the proper administration of justice that all young persons be excluded from the court whilst PW1 continued to give his evidence and thus I made the said order."

6. Affidavits by two of the youths who were ordered out of Court were filed on behalf of the appellants, and were produced. Each said very much the same thing. They went to Court that day in a group of six boys. Neither knew he witness giving evidence.   After about five minutes a police officer came up to them and asked what was their relationship to the two defendants. One of their number replied "schoolmates". The police officer spoke to the interpreter who addressed the magistrate. The police officer then returned to where they were sitting and told all six of them to leave the Court, which they did.  Each deponent says that he only went along to the Court to see "what was happening to my friend Tam Wai Ming (the 2nd appellant) and that "During the time I was in Court No. 8 I did nothing to scare the witness who was giving evidence.   I just sat there, watched and listened."

7. It is, of course, a constitutional imperative that trials be held in open Court, and so far as Magistrate's Courts are concerned, this fundamental principle is enshrined in section 11 of the Magistrate's Ordinance. It is part of our common law heritage, and the traditional distrust of secret trials has been variously ascribed by legal historians to the excesses of the Spanish Inquisition, the malignity of the English Court of Star Chamber, and the French Royal Court s misuse of the lettre de cachet. The guarantee to a defendant that his trial be conducted in public has for long been recognised as a safeguard against attempts to use the Courts as instruments of oppression, and as a restraint upon the possible abuse of judicial power. Without exception, the cases show that a fair trial is the objective and that the requirement that they be held in open Court is one of the most powerful means by which it is achieved. So essential is this requirement that any failure to comply with it without good cause will render the trial a nullity.

8. Mr. Mullick, for the appellants, cited all the leading cases to me. The limits of a Court's discretion when it decides to act contrary to the fundamental principle is explained by Viscount Haldane in Scott v. Scott. ⁽¹⁾ In his speech, at page 435 he said -

"The power of an ordinary court of justice to hear in private cannot rest merely or the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing shall take place in private.   If there is any exception to the fixed principle which requires the administration of justice to take place in open court, that exception must be based upon the operation of some other and overriding principle which defines the field of exception and does not leave the limits to the individual discretion of the judge."

9. That was a nullity suit where the hearing was held in camera but the cases indicate what are the characterities which make a court open, even though it cannot be said that the trial took place behind closed doors. Lord Widgery L. C.J in R. v. Denbigh Justices, Ex parte Williams and Evans⁽²⁾ at p. 1055 expressly approved the statement of principle expounded by Bayley J. in Daubney v. Cooper⁽³⁾ at P. 240 -

".....we are all of opinion, that it is one of the essential qualities of a Court of Justice that its proceedings should be in public, and that all the parties who may be desirous of hearing what is going on, if there be room in the place for the purpose, - provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, - have a right to be present for the purpose of hearing what is going on."

He also commended the observations of a Californian judge in a 1894 case -

"The trial should be "public," in the ordinary commonsense acceptation of the term. The doors of the court room are expected to be kept open, the public are entitled to be admitted, and the trial is to be public in all respects ... with due regard to the size of the court room, the conveniences of the court, the right to exclude objectionable characters and youth of tender years, and to do other things which may facilitate the proper conduct of the trial."

At P. 1056, Lord Widgery had this to say -

"Again, one may say, the injunction to the presiding judge or magistrate is: do your best to enable the public to come in and see what is happening, having a proper common sense regard for the facilities available and the facility for keeping order. security and the like.  I start by accepting those two explanations of the significance of the phrase 'open court', but I would at once add to them a comment based on the fact that since those cases were decided, the press has assumed a very much greater importance in these matters.  Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media, and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded.  On the other hand, the fact that the press is present is not conclusive the other way, because one must not overlook the other factor of an open and public proceeding, namely one to which individual members of the public can come if they have sufficient interest in the proceedings to make it worth their while so to do.

How one deals with individual members of the public who want to come in must, of course, depend on the circumstances of the case. It is the duty of a presiding judge or magistrate, as I have already said, to fulfil the obligations expressed in the extracts which I have read to the best of his ability having regard to all the prevailing circumstances: the number of seats available, the desirability or undesirability of allowing people to stand, the possibility of disorder, the possibility of fire risk in a small overcrowded court, overcrowded by too many people being allowed to enter it, and so on.

In my judgment the method by which this duty is to be performed  in a particular case is primarily for determination by the presiding judge or magistrate on the spot. If he has shown himself conscious of his duty in this regard, and has reached a conclusion which a reasonable magistrate might reach, then I do not think it is for us in this court to substitute our own views whether the facilities offered to the public were or were not sufficient."

10. Mr. Mullick, of course, recognised that a Court has a discretion to exclude all, or a section of, the public from the court room in appropriate circumstances, but contended that on the facts the magistrate had not properly exercised his discretion, and had therefore acted without jurisdiction. The magistrate had taken a drastic course which offended the principles of justice and to uphold his decision in all the circumstances would be to create a dangerous precedent. The appellants were entitled to have their friends in court if there was room for them and if they behaved themselves. The magistrate had acted only on his impression that the witness was being inhibited in giving his evidence, an impression which was not manifestly justified.

11. It is common in Commonwealth jurisdictions to make special provision for the circumstances in which the court can be wholly or partially cleared -the trial of cases involving official secrets is one example, and in the United Kingdom (unlike here) there is express provision in the Children and Young Persons Act, 1933 to prohibit those under 14 from attending a criminal trial (section 36) and to allow the court to exclude anyone under 17 when an offence involving decency or morality is being tried (section 37).

12. In Hong Kong, the general provisions giving the courts power to exclude the general public from a trial, or to sit in camera are contained respectively in sections 122 and 123 of the Criminal Procedure Ordinance. Section 122 is in the following terms -

13. Mr. Mullick asks me to construe this section against the background of the events that led up to the necessity for its enactment (the deterioration of public order) in 1968. What is clear is that the legislature felt it necessary to augment the relevant common law rules and since the section is still in force, there is no warrant not to give it full force and effect. I would, however, remark that subsection (5) of section 122 does appear to be otiose. It does not say that no objection shall be taken to an order excluding the public from a count and, surely, if s court acts in accordance with the powers given by subsection (1) then an exclusion order could not, in any event, affect the validity of the trial. In the circumstances I surmise that subsection (5) was included ex abuntanti because the principle that a court must be open is so fundamental.

14. The magistrate's report makes it very plain why he thought it necessary to send those six youths out of court and that he made his order because he considered it "necessary for the proper administration of justice". Subsection (1) of section 122 expressly gives him the power to act as he did if he considered it to be necessary "in the interests of justice". In my judgment, the approach of an appellate court in cases such as the present must be that indicated by Lord Widgery in the final paragraph of the passage from his judgment in the Denbigh Justices case that I have read out. There was adequate material made known to the Court upon which the magistrate could reach his decision to make his order. Both Viscount Haldane in Scott v. Scott and Lord Scarman in A.G. v. Leveller Magazine Ltd. and others ⁽⁴⁾ recognised that formally adduced evidence was not required. I have no doubt that the learned magistrate made a responsible decision authorised by statute which cannot be assailed.

15. Before I take leave of this case, there is one other matter that I should mention. Mr. Mullick, with his customary courtesy, submitted that I had no power to call for a report from the magistrate and that therefore I could not have regard to it when determining this appeal. It must be said at once that in Hong Kong, unlike the position in a number of Commonwealth jurisdictions, there is no express provision for calling for reports from those presiding over the lower courts, but the printed form in use when a magistrate prepares a statement of his findings to comply with section 114(b) of the Magistrate's Ordinance, provides space for the grounds of appeal to be set out.  As we have seen, the original grounds of appeal made no mention of the complaint that ultimately formed the only issue in this appeal. It cannot really be doubted that the learned magistrate would have adverted to the complaint had he known of it when preparing his statement of findings.   I remain unrepentant at what I did, for I feel the interests of justice have been served. The report might just as well have revealed points in favour of the appellants.

16. It was for these reasons that I dismissed the appeals.

(1)    [1913] A. C. 417

(2)    [1974] 2 All E. R. 1052

(3)    (1829) 10 B & C 237

(4)    (1979) 68 Crim. App. B. 342