Attorney General v. Ip Chong-kwan and Others
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CACC000687/1978
----------------- Coram: Huggins, J.A., Leonard and Li, JJ. Date of Judgment: 3rd November 1978. ----------------- JUDGMENT ----------------- Huggins, J. A. : 1. This is an appeal by way of Case Stated from a decision of a District Judge dismissing five charges. The Charges arose out of incidents on 12th November 1977 at the Royal Hong Kong Jockey Club's premises at Happy Valley: they relate to illegal book-making and illegal betting. The Appellants were apparently arrested and we are told that they were not charged until 20th December. They were then brought before a magistrate on 21st December and, with remarkable alacrity, the matter was apparently brought before a District Judge on the following day, when the Appellants pleaded Not guilty. The trial was fixed to take place on five days in April of this year. No new estimate was made of the time of trial up to the date when the trial began. 2. On 3rd April, we are told, a view took place and three of the five witnesses were called. The evidence of the third witness was concluded at 4.20 p. m. Counsel for the prosecution then indicated that the other witnesses had not been warned to attend on that day, because it was not anticipated that they would be reached. There had obviously been again a misestimate of the time required and ten minutes of the day still remained, for under the Practice Directions the afternoon session of the District Court is from 2.30 p.m. to 4.30 p.m. Counsel therefore had to ask for an adjournment until the following morning. The learned judge did not ask for submissions from the advocates for the various Defendants. Of his own motion he refused the adjournment and counsel thereupon made a submission of no case to answer. The submission proceeded for ten minutes and was then interrupted by the adjournment. It was resumed on the following morning, but counsel for the Crown then indicated that he could not further argue in favour of a conviction on the evidence available and the Appellants were acquitted. 3. What is submitted before us is that the learned judge wrongly exercised his discretion in refusing an adjournment. It is well-established that an exercise of the discretion is a matter of law which can be challenged on appeal, but equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice. The learned judge has set out his reasons in the Case Stated and the first reason, as I understand it, is that he took the view that this case should never have been tried in the District Court but ought to have been' tried before a magistrate. That, in my judgment, was not a valid reason for refusing an adjournment. He then went on to say that as a result of the forum chosen the Appellants had had the case hanging over their heads for a long period and also that it was apparent they had incurred expense in obtaining legal representation. It is true that the transfer of the case to the District Court inevitably did produce some delay although, as I have already indicated, the delay in this case was unusually short. As to the expense, it is difficult to see that the expense would be appreciably heavier because of the fact that the case was in the District Court rather than before the magistrate. The leaned judge then went on to say that he could see no valid reason why the witnesses should not have been in attendance. With respect to him I take a different view. It is true that witnesses should be available when required and counsel might have been well advised to inform the learned judge at an early stage of the view he had taken and of the steps he had taken of warning witnesses and to have got the agreement of the leaned judge, but in my view it is no longer the case that witnesses should be expected to attend on the first day of a long trial and wait in the corridors of the court-house until they are required, if by the exercise of reasonable anticipation one can judge when they will be required. An error here of ten minutes was made and I think it would have been unreasonable to expect all these witnesses to be present on the first day when, with the consent of the defence, it was estimated that the trial would last five days. I mention the consent of the defence because it has been said that it is the continuing duty of counsel on both sides to inform the court if there is any change in the anticipated duration of a trial. I think that the learned judge was wrong and that injustice did result from the course which he took. Justice must be done to the Crown as well as to the defence, although there is no doubt that the court will scrutinize the proceedings with particular care where the defendant may be prejudiced: but justice must be done to both sides. In my judgment justice was not done here and the appeal must be allowed. 4. I would answer the question put to us by saying that the learned judge erred in law in exercising his discretion as he did. I would remit the case with an expression of that opinion, but I would also say this, that it was open to counsel for the prosecution on the following day, 4th April, to make a further application to have the witnesses heard. Whether or not they were then available, no doubt they could have been made available on the 4th. Had such an application been made I think the learned judge would probably have acceded to it and I think he ought to have done so. It is easy to criticize after the event, but I think it was an error on the part of counsel not to make that application. He for his part had carefully considered the matter and had concluded that it was not proper for him to make such application, but the failure to make it has in the event resulted, or possibly resulted, in this appeal and in further delay which might not have occurred had the application been made. This case is now very stale and I would suggest that the Crown should consider very carefully whether or not justice requires that the case be in fact resumed. It is always open to them to submit no further evidence to the learned judge so that the final result of the case would still be an acquittal. Leonard, J. : 5. I am in substantial agreement with everything which my Lord President has said. I think the only course open to us is to answer to the question posed in the affirmative and an order that the case be remitted. I, however, feel even more strongly than does my Lord President as to the degree of care and examination which should be exercised by the Attorney General in deciding whether any further evidence should now be offered in this case. I say this for a number of reasons but I should like to make it clear that these reasons do not involve a criticism of the forum selected. We do not know whether the forum selected was the proper forum and in any event that is a matter entirely within the discretion of the Attorney General. Delay however has resulted. That delay was short in so far as the transfer to the District Court was concerned but a considerable delay was occasioned because five days were required to be reserved and in the District Court to get five days necessarily involves, as I understand it, a substantial delay. I share the views of the learned President as to the course which counsel for the Crown might have taken on the second day of trial. In view of the fact that a year has now elapsed since the events in question and the consequent difficulty in which the Respondents may find themselves on any further hearing of the case I feel most strongly that unless the interests of justice absolutely demand it there should be no further action taken in the case. 3rd November 1978. Representation: Maxwell for Crown / Appellant. L. Leong (George Liang & Co,) for Respondents 1, 2, 4 & 5. L. Leong (Raymond Tang & Co.) for Respondent 3. |