Attorney General v. Kwan Ngan-chung

CACC001158/1981

[Case stated - form of application for - drafting of.

Close of prosecution case - case to answer in law - trier of fact stopping case.]

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction).

CRIMINAL APPEAL NO. 1158 OF 1981

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BETWEEN

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Coram: O'Connor, J.

Date: 10 February 1982

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J U D G M E N T

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1. This is an appeal by the Attorney General, by way of case stated, from the decision of a magistrate in acquitting the respondent, who was the defendant in the court below.

2. As appears from the case stated, the defendant had been charged with claiming to be a member of a triad society, contrary to S.20(2) of the Societies Ordinance Cap. 151. The only evidence called by the prosecution was that of a 17 year old former schoolmate of the defendant.  Her evidence was to the effect that in the course of a casual conversation the defendant told her that he was a member of the Wo Shing Wo, and asked her if she had joined any triad society, to which she answered 'no'.  They then changed the topic of conversation.  Cross-examination was directed as to whether the defendant had made the claim. She maintained that he had. At the conclusion of the prosecution evidence the learned magistrate ruled that there was a case to answer, but held that it would be unsafe to convict on the prosecution evidence. He therefore acquitted her without calling upon the defence.  He was not thereby holding that a conviction could not properly be entered if there was no further evidence, but that he as judge of fact would not do so.  Later crown counsel appeared before him and applied for a review, referring the magistrate to Attorney General v. Ng Kwok Yuen (C. A. 937/75) as an authority for the proposition that the offence may be committed where the claim is spontaneous, and that the motive or purpose for making the claim is immaterial.  The learned magistrate refused to review. The Attorney General then applied to the magistrate to state a case. The application was drafted in accordance with Form 95 of the Magistrates (Forms) Rules. It did not state the question of law upon which the opinion of the High Court was sought.

3. The learned magistrate, thereupon drafted the case stated which is before me.  In it the question of law is stated to be 'whether I was correct in these circumstances, to dismiss the case for the reasons set out (in paragraph 3) '.

4. The Full Court, in The Attorney General v. Leung Chi-kin (1974) HKLR 269, said that the better practice is that the magistrate should invite the parties to draft the case and submit it to him for consideration. If that had been done in this case, the appellant would have had to direct his mind to the specific question of law that was to be considered. If he had done so, I do not think this matter would have come before me, at least not in its present form.

5. As long ago as 1955 it was pointed out, in R. v. Chow Ha (1959) HKLR 3, that the statutory form for an application to state a case was defective in that it did not set out the ground of appeal, that is the question of law to be considered by the High Court. The learned judge in that case considered the application should always set out the question of law in the application, unless it had appeared in a submission before the magistrate. Of course there may have been a number of submissions of law before the magistrate, and I would go further than the judge in that case and say that the question of law should always be set out in the application for a case stated. The statutory form should be amended to so provide.

6. When the appeal came on for hearing before me it was clear that the point of law upon which the Attorney General wished to have the opinion of the High Court, was whether or not the prosecution evidence, if believed, would warrant a conviction. To put it another way they wished to have a decision as to whether a casual mention, without any vestige of threats or overtones of intimidation, between friends that one was a member of a triad society, would constitute the offence of claiming to be a member.  The difficulty that the appellant has in asking me to answer that question, is that it is not the question asked in the case stated. The learned magistrate, by finding a case to answer, has found that in law those facts would suffice to establish the offence. Therefore the learned magistrate has answered that question in which the appellant seeks to ask, in the appellant's favour, and the appellant is not a party aggrieved in respect thereto. That decision of the learned magistrate would only have been appealable at the suit of the defendant, who for very good reasons does not raise it. I express no opinion as to whether or not the magistrate came to the correct conclusion in law. The matter is not before me.

7. I was not pressed to try and answer the question that the magistrate framed. It would have been difficult to do so without seeking further clarification from the magistrate as to the precise basis for this decision.  He had found a case to answer and then, without calling upon the defence, acquitted. That amounted to stopping the case as judge of fact, rather than stopping is as judge of law.  The reason he gives is that it would have been unsafe to convict. The expression 'unsafe to convict' is appropriate for where there are doubts as to the reliability of witnesses or as to what facts are established by the evidence. The expression is not apt for the situation where there is insufficient evidence in law upon which a judge of fact would be entitled to convict. It may be that in the present case the learned magistrate was not prepared to believe the witness. However the course he adopted leaves him open to the criticism that having found that in law there was sufficient evidence to convict, he did not do so, not because he was not satisfied as to guilt, but because he did not like the law.

8. Of course if there is a case to answer, and no defence evidence called, a magistrate is not obliged to convict. The fact that there is evidence upon which there could be a conviction, does not mean that there must or ought be one.  That there is in law sufficient evidence for a conviction does not render a conviction inevitable. A common example is where there is evidence which if believed is sufficient for a conviction, but the magistrate does not believe it, or where the facts accepted as proven are capable of an inference of guilt, but some other inference is open and the magistrate is not satisfied beyond reasonable doubt that the proper inference to draw is that of guilt.

9. However a magistrate leaves himself open to a finding that he is perverse if he disbelieves evidence which is inherently probable and uncontradicted, and which comes from a credible witness.

10. A finding of satisfaction beyond reasonable doubt, that is guilt, is more vunerable to attack than a finding of not being so satisfied, that is not guilty, nevertheless there are circumstances in which the latter finding is also open to successful attack, and if one had the full facts of the decision in this case, this may be such a case.

11. The learned magistrate stopped the case as judge of fact at the close of the prosecution case. There is power in a jury to so stop a case, though it is not encouraged, R. v. Young (1964) 48 Cr. App. R. 292.   It is a power distinct from that of finding no case to drawer as a matter of law. The disarray of the English authorities on this latter pourer does not appear to be entirely resolved by R. v. Galbraith (1981) 73 Cr. App. R. 124.  It appears that a magistrate has similar power to a jury to stop a case, see Ramsden v. Ramsden (1954) 2 All E.R. 623 where it was said "justices, like a judge or jury are perfectly entitled to say 'We have had enough of this case, and we do not think anything of it', without being said to have misdirected themselves in law". In that case the court went on to say that at least in matrimonial cases, both sides should be heard. That case was approved of in Mayes v. Mayes (1971) 1 W.L.R. 679 where it is indicated that the principle applies to all tribunals and certainly to magistrates courts. The ratio of that case would indicate it applies to magistrates exercising criminal jurisdiction, see also R. v, Prasad (1979) 2 A. Crim. R. 45 and cases referred to therein.

12. It seems that the remarks of Lord Parker in Findlay v. Superfare Ltd  (1962) Crim. L.R. 163, a criminal case, that justices should hear a case in full, were directed towards justices being too ready, as judges of fact, to stop a case at the close of the prosecution case. Unfortunately the fuller report of that case at 60 L.G.R. 145 is not available.

13. A magistrate should be slow to stop a case as judge of fact as distinct from finding no case as judge of Iaw. The exercise of the power is liable to give the impression of an arbitrary decision. Its exercise is only rarely, if ever, an appropriate method of bringing a prosecution to an end.

Representation:

Riordan, Crown Counsel, for the Crown/appellant Judge of the High Court

Z. R. Bey Muftyzade (D.L.A.) for the respondent