Attorney General v. Li Ching-kwan
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CACC000700/1982 Criminal Appeal 700/82 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) Criminal Appeal No. 700 of 1982 _________________ BETWEEN
__________ Coram: The Hon, Mr. Justice Power. Date: 19 August 1982 __________ JUDGMENT __________ 1. In this matter the respondent, Li Ching-kwan was charged:
2. At the conclusion of the case for the prosecution the learned magistrate initially held that there was a case to answer. However after explaining his rights to the defendant he reconsidered the matter and held that there was no case to answer and dismissed the charge. 3. The Crown asked the learned magistrate to review his decision but he declined to do so and the matter now comes before this Court by way of case stated. 4. As the matter arose from a ruling of no case to answer the learned magistrate, in accordance with the decision in Attorney General v. Li Nai-ho & Others (Appeal No. 753/80) attached the record to his case stated. The record should, in my view, have included a copy of the summons. It, no doubt through inadvertence, did not and I thought it proper to complete the record in this regard by asking Mr. Jennings, who appeared for the Crown, for a copy o￡ the summons. He was only able to hand me a copy of the information. I was, from this satisfied that the summons would have been addressed to the respondent in the following way: "Li Ching-kwan ( 李正軍 ) of 364 Portland Street, Ground Floor, Kowloon.” That this must be so is clear from the third question posed by the learned magistrate in his case stated. 5. The record revealed that 3 witnesses were called by the prosecution. The first was the purchaser who said that he had bought some noodles from the Sun See Koon Store of Portland Street which he later found to contain ants. The second was a Health Inspector who said that the purchaser gave him some noodles which contained ants which he delivered to the Pest Control Office for identification. This witness produced the Business Registration Certificate of the Sun See Koon Comporadore. The final witness was a Pest Control Officer who identified the ants as belonging to the genus monomorium. 6. The questions of law for the opinion of this Court were set out by the learned magistrate as follows:-
7. As to the first question the answer, where there has been no more than an appearance simpliciter, must be - No. Chung Ping-chuen v. The Queen (Criminal Appeal No. 869 of 1980), which was referred to by the learned magistrate in his Case Stated, correctly, in my respectful view, laid down that appearance in answer to a summons is evidence only that the person who appears is the person to whom the summons is directed. The appearance simpliciter of the respondent, then, did no more than provide evidence that he was "Li Ching-kwan ( 李正軍 ) of 364 Portland Street, Ground Floor, Kowloon." 8. I have been at pains to use the words "appearance simpliciter" because the record in the present case reveals that this was not such an appearance. When called upon to plead the respondent said "I plead not guilty. I did not personally sell the item. I'm one of the proprietors". 9. It seems to me clear that this was an admission in the face of the Court that the respondent was one of the proprietors of the firm mentioned in the charge i.e. the Sun See Koon Comporadore of 364 Portland Street, Ground Floor, Kowloon. The respondent was perfectly entitled, if he wished to do so, to make such an admission, which I shall refer to hereafter as "the initial admission", and it was, by virtue of s.65C of the Criminal Procedure Ordinance, "conclusive evidence in those proceedings of the fact admitted". The respondent went on to conduct his cross-examination upon the basis that he was involved in the management of the shop which demonstrates to me that he made the initial admission quite freely and deliberately and that he was, in no way, resiling therefrom during the course of the trial. 10. I am satisfied that, in the present case, the appearance of the respondent coupled with the initial admission was sufficient to establish his identity as a proprietor of the Sun Kee Koon Comporadore. 11. It may be that, until this hearing, no one had directed his mind either to the initial admission or to its effect. Certainly what the learned magistrate was turning his mind to, when he came to rule that there was no case to answer, was whether there was any link between the respondent and the Business Registration Certificate. He made no reference to the initial admission when he held that there was no evidence to prove that the person who answered the summons in the name Li Ching-kwon was the same person whose name appeared in the Business Registration Certificate. 12. Whether or not there was, leaving aside the initial admission, any such evidence was not of any real materiality as the respondent had, by making the initial admission, conceded the very point sought to be proved by the production of the Business Registration Certificate i.e. that he was a proprietor of the Sun See Koon Comporadore. In the circumstances the learned magistrate should not have held that there was no case to answer. The answer to the first question is - yes, in the circumstances of the present case. 13. Given the above answer it is not really necessary for me to turn to consider the other questions. However Mr. Jennings, who appeared for the Attorney General, said that the Groom was concerned with the wider implications of the learned magistrate's ruling and pressed me to answer each of the questions. I turn therefore to consider the other 2 questions. 14. The second question must, in the circumstances of the present case, be answered - No. The respondent did not in my view by his questions alone establish his identity as the alleged offender. 15. Before turning to consider the third question I consider it proper to observe that, to my mind, even had the respondent, not made the initial admission, the evidence is such that it does not properly raise the third question. I make this observation because the second witness, when tendering the Business Registration Certificate, said "I also produce certificate Business Registration Certificate showing defendant as partner in Comporadore Sun See Koon". It may be that the learned magistrate did not regard this evidence as significant because he considered that all the witness could properly say, and what the witness meant to say, was that the Certificate showed a person with the same name and address as the defendant was a partner of Comporadore Sun See Koon. If that be so the learned magistrate should have directed questions to the witness to elicit the true position and, if it was shown that he could not properly give the evidence, it should have been held to be inadmissible. This was not done and, as the record stands, the defendant had been identified by a witness as the person mentioned in the Business Registration Certificate. 16. I now turn to consider the third question upon the basis that the respondent did not make the initial admission and that the second witness gave no evidence identifying the respondent. 17. The Crown contend, relying upon the judgment of Rig by S.P.J. in Attorney General v. Leung Man-kwong and Leung Man-wong (C.A. 176 of 1964), that, if a Business Registration Certificate is produced which bears the same name and address as is shown on a summons to which a defendant has appeared, it is, to use Rigby S.P.J.'s phrase, a matter of "elementary common sense" to conclude prima facie that the defendant is the person referred to in the Business Registration Certificate. I am satisfied that this contention is correct. I emphasize that when this occurs it is only prima facie proof of identity but such proof would, of course, be sufficient to warrant a Court holding that, as regards this issue, there is a case to answer. 18. The answer to the third question must, I am satisfied, be - yes.
Representation: Mr. M. Jennings, C.C. for Attorney General. Respondent in person |