The Queen v. Wong Yan Fuk
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Magistracy Appeal No. ------------------------ H E A D N O T E ------------------------ The words “proved guilty” in article 11(1) of the Bill of Rights are not to be construed narrowly to mean no more than convicted of the offence charged. Rather, the article dealing as it does with crime and punishment, those words are to be construed purposively to mean proved guilty of the acts or omission punishable. Subsection (4) of section 4 of the Massage Establishments Ordinance, Cap. 266, is inconsistent with article 11(1) of the Bill of Rights and has been Bill repealed by reason of such Bill inconsistency. IN THE COURT OF APPEAL Magistracy Appeal No. ------------------- BETWEEN
------------------ Coram : Silke VP, Bokhary JA & Bewley J Date of hearing : October 29, 1993 Date of decision : October 29, 1993 Date of reasons : November 18, 1993 ------------------------- J U D G M E N T ------------------------- Bokhary JA: INTRODUCTION 1. On April 24, 1993, before Louis Tong Esq. sitting in the Magistrate’s Court at North Kowloon, the defendant pleaded guilty to one count of managing a unlicensed massage establishment, contrary to section 4(1) of the Massage Establishments Ordinance, Cap. 266. The defendant was represented by counsel under the Duty Lawyer Scheme. Counsel mitigated. The magistrate ordered a probation officer’s report, adjourned sentencing to the 10th of the following month, and admitted the defendant to bail in the meantime. 2. When he came back to court for sentencing on May 10, 1993, the defendant was unrepresented. The probation officer’s report was considered. And the magistrate then sentenced the defendant to six months’ imprisonment. 3. The defendant appealed to the High Court. On June 29, 1993, a judge of that Court, Mayo J, reserved the appeal to this Court, and admitted the defendant to bail pending appeal. 4. At the conclusion of the argument before us on October 29, 1993, we upheld the conviction but reduced the sentence to the extent necessary for it to terminate immediately. We said that we would give our reasons in due course. We now do so. CONVICTION 5. As to conviction, two arguments were advanced on behalf of the defendant. Under the first argument, it was contended that the defendant’s guilty plea was vitiated so that his conviction based on such plea was likewise vitiated. Under the second argument, it was contended that the entire proceedings were vitiated. 6. For the reasons which follow, neither argument succeeds. Agreed Facts 7. On the occasion when the defendant pleaded guilty, his then counsel said that the facts set out in the document headed “Brief Facts of Case” prepared by the prosecution were agreed by the defence. The document was not read out in court. On the authority of what we said in R. v. Siu Kwong Wing, Criminal Appeal No. 528 of 1992, April 2, 1993, (unreported) at p.4, it should have been. Nor was the defendant himself invited to confirm or deny what the document said. On the same authority, he should have been. 8. The first argument as to conviction is that those omissions vitiated the defendant’s plea of guilty and his conviction based on such plea. We do not accept that argument. The plea was tendered, as it should of course have been, by the defendant himself. It was unequivocal and complete in itself. And it was not dependent on any facts being agreed. Whether or not to accept a guilty plea was for the magistrate to decide; and, in all the circumstances, the omissions here do not go so far as to vitiate his decision to accept the guilty plea tendered in this case. 9. As it happens, the Brief Facts of Case did not recite any fact which aggravated the offence. Even if it had, that could not, in the circumstances, go to conviction as opposed to sentence. As to sentence, the result of any omission such as the ones here might well be that any such aggravation would have to be ignored. Interpretation 10. The second argument as to conviction invokes article 11(2)(f) of the Bill of Rights, which includes “the free assistance of an interpreter if he cannot understand or speak the language used in court” among the minimum guarantees to which everyone is, in full equality, entitled in the determination of any criminal charge against him. 11. Of course, quite apart from the Bill of Rights, all accused persons before our courts have always been provided with such assistance. A trial would hardly be worthy of the name otherwise. 12. But the short answer to the argument here is that there is no reason to doubt that the defendant received such assistance. It is not even asserted on his behalf that he had not. All that Mr McCoy for the defendant has done in the present connection is to point out that the magistrate had not made a note of the interpreter’s presence. No doubt, the magistrate considered the fact too routine and obvious to call for a note. Before us, the defendant was represented by three counsel attended by two representatives from their instructing solicitors. And of course no evidence was taken. Nevertheless, very properly and in accordance with invariable practice, an interpreter sat by the dock throughout the proceedings, interpreting the same to the defendant. It was not suggested that anyone would think it necessary to make a note of that fact. SENTENCE 13. Two sections in particular of the Massage Establishment Ordinance, Cap.266, are to be noted. One is section 4 itself, being the one under which the defendant was convicted and sentenced. The other is section 15. 14. Section 4 reads:-
And section 15 provides, among other things, that:-
Other persons’ convictions 15. The prosecution sought to prove - and the magistrate found it proved - that within three years prior to the defendant’s conviction, other persons had been convicted under the same subsection in relation to the same place. No attempt had been made by the defendant to satisfy the magistrate that he did not know and had no reason to suspect that any other person had been so convicted. In the result, the defendant, who had pleaded guilty, and in a case which was by no means extreme, received, upon his first conviction under the section, the maximum term of imprisonment by which an offence under the section is punishable upon a first conviction thereunder. 16. Clearly, he had been dealt with under subsection (4). The most important question 17. The most important question for our decision in this case is whether subsection (4) has been repealed by the Bill of Rights. Its importance is general. As far as the defendant himself in particular is concerned, his appeal against, sentence must succeed to the extent to which it has succeeded however we answer that question. Three other reasons 18. Bill repeal apart, there are three other reasons for reducing the defendant’s sentence as we have reduced it. First reason: simply far too severe 19. First, having regard to the defendant’s own situation and his poor health even though only 30 years of age, and in light of the general level of sentences in circumstances such as those surrounding his offence, his sentence was simply far too severe even assuming that subsection (4) operated against him. On that basis alone, it called for a reduction such as the one which we made. Second reason: not alerted 20. Secondly, the defendant was before the magistrate on two days. On the second day, he was not legally represented. But at no time did the magistrate alert him to the onus which subsection (4) said was for him to discharge. Therefore, even if the subsection could operate against him, it would not be fair to let its operation remain effective as against him in this instance. On that basis, too, the reduction which we made was, we felt, appropriate. Third reason: other persons’ convictions not proved 21. Thirdly, the only “evidence” by which the prosecution sought to prove that other persons had been convicted under section 4(1) in relation to the same place took the form of a document put forward as a certificate under section 15. Upon scrutiny, however, the document does not purport to be a certificate by the person who signed it of the facts set out in it. Moreover, the document is so vague in its terms that it is not even acceptably clear on its face that the convictions which it mentions were under section 4(1). Has subsection (4) been Bill repealed? 22. We revert now to the question: has subsection (4) of section 4 of the Massage Establishments Ordinance, Cap.266, been repealed by the Bill of Rights? If the answer is “yes”, it would, in the circumstances, of itself lead to the reduction in sentence which we have made. So the question is not merely academic even though the appeal against sentence can be disposed of on narrower grounds. The question has been fully argued before us. We are in a position to answer it. The public interest requires an answer. And we proceed now to provide the answer. Article 11(1) 23. We have already recited subsection (4). 24. Article 11(1) provides that: “Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.” “Proved guilty” 25. If the expression “proved guilty” used therein were construed to mean no more than convicted of the offence charged, then article 11(2) would not cover provisions like subsection (4). Such a construction would be far too narrow a construction to give a provision entrenching the presumption of innocence. Meaning 26. We are here concerned with crime and punishment. A purposive approach is called for. “Proved guilty” must mean proved guilty of the acts or omissions punishable. 27. What the offender is liable to be punished for under subsection (4) goes beyond managing an unlicensed massage establishment. It extends to managing such an establishment knowing or having reason to suspect that another or others had been convicted of managing one at the same place within three years of his own conviction. Furthermore 28. A purposive approach hardly needs further justification. But three more things can, if necessary, be said. First, it is the general position that the facts upon which a conviction is based are for the prosecution to prove, save in so far as they are necessarily encompassed by a guilty plea or verdict or are admitted by the defendant in question. Secondly, there are provisions in article 11, such as the right to an interpreter, which nobody could doubt for one moment extend to the sentencing process. Thirdly, the unsatisfactory nature of a narrow construction is well-illustrated by the fact that the subsection here in question was described by its promoters (in paragraph 3 of the Explanatory Memorandum to the Massage Establishments Bill) as one which “provides that in certain circumstances a person may be deemed to have been previously convicted if within 3 years of his conviction another person had been similarly convicted in relation to the same premises.” Of course, we do not use that to construe the subsection. We merely borrow the same as an unvarnished way of conveying what the subsection is really about. Article 11(1) applies to subsection (4) 29. For all those reasons, article 11(1) applies to subsection (4). With the result that ... 30. We come now to the result produced by applying the former to the latter. The test 31. In deciding whether, in any given instance, legislation has made an exception to the presumption of innocence, the courts will look at substance and reality rather than form. And the question whether the exception is consistent with article 11(1) (and therefore remains extant) or is inconsistent with it (and has therefore been repealed) is answered by reference to the test laid down by the Privy Council in AG v. Lee Kwong-kut [1993] 3 WLR 329. 32. The advice of the Privy Council there reported covers not only Mr Lee Kwong-kut’s appeal but also the separate appeal of a Mr Lo Chak-man. Their appeals were heard together because both involved the test for determining whether any given statutory reverse onus provision survived article 11(1). Three statements 33. Three statements in the Privy Council’s advice in AG v. Lee Kwong-kut case (supra) delivered by Lord Woolf are of particular importance. First 34. The first is the one (at p.334) in which the Privy Council referred to R. v. Edwards [1975] QB 27 where Lawton LJ, delivering the judgment of the Court of Appeal in England, examined a line of authority dating from the 17th century, and continued (at pp.39-40) thus:-
Second 35. Secondly, turning to article 11(1), the Privy Council said (at p.341) that :-
36. As can be seen, the question is twofold. Whether an exception is justifiable is not confined to “whether it remains primarily the responsibility of the prosecution to prove the guilt of an accused to the required standard”. It is also necessary to decide “whether the exception is reasonably imposed, notwithstanding the importance of maintaining the principle which article 11(1) enshrines.” Third 37. Thirdly, the Privy Council said this (at p.344):-
38. As can also be seen, the application of a test along the lines suggested by Lawton LJ in R. v. Edwards (supra) at pp.39-40 has not been laid down by the Privy Council as what will invariably be all that is required. Rather, it has been laid down as what will “often” be all that is required. Mr Lee’s appeal and Mr Lo’s appeal 39. Mr Lee was charged with unlawful possession, contrary to section 30 of the Summary Offences Ordinance, Cap.228, which read:-
40. Mr Lo was charged with assisting another to retain the benefit of drug trafficking, contrary to section 25(1) of the Drug Trafficking (Recovery of Proceeds) Ordinance, Cap.405. The relevant provisions of section 25 recited by the Privy Council are:-
Section 30 repealed 41. Upholding the decision of this Court, the Privy Council held that section 30 had been repealed, saying this (at p.344):-
Section 25 not repealed 42. Reversing the decision of Gall J, the Privy Council held that section 25 had not been repealed, saying (at pp.344-345) that :-
Subsection (4)’s position in the spectrum 43. As to subsection (4)’s position in that spectrum, we put it at the section 30 end. The twofold question again 44. We put it there by reference to both limbs of the twofold question which we identified earlier on. First limb 45. Under the first limb, we begin by contrasting sections 25 and 30. The “substantive effect of” section 25 (as the Privy Council points out at p.344) “is to place the onus of the defence” to disprove “the most significant element of the offence.” But (as the Privy Council points out at the same page) the “substance of the offence” under section 25 is one “as to which the onus is on the prosecution.” 46. What about subsection (4)? It involves making a first offender liable to repeat offender punishment if another had similarly offended before him and he knew or had reason to suspect that. Clearly, the element of aggravation laying him open to such enhanced punishment is knowledge or reason for suspicion. He is, after all, being equated with a repeat offender even though he is himself only a first offender. It is hardly to be supposed that the Legislature meant for him, a first offender in fact, to be liable in law to be punished as if he were a repeat offender if he did not know or even have reason to suspect that anybody had similarly offended before. Such knowledge or reason for suspicion is the “most significant element” of the subsection or, put another way, its “substance”. And the subsection places the onus of disproving that element on the defence. Second limb 47. Coming to the second limb, we say this. We do not underestimate the authorities’ task in dealing with the offences against property at which section 30 was aimed. Nor, as far as subsection (4) is concerned, do we underestimate their task in dealing with unlicensed massage establishments. That said, we doubt that anyone would suggest that either task begins to approach the “war against drug trafficking” to which the Privy Council referred (at p.345) in upholding section 25. And as to reasonableness and proportionality, this can be added. It is hardly unknown for the prosecution to have to prove even knowledge (by reference to what is the only reasonable inference to be drawn as to the accused person’s state of mind in all the circumstances). And reason for suspicion short of actual knowledge is of course less difficult for the prosecution to prove than actual knowledge. It can be seen - and should be remembered - that subsection (4) is certainly at least odd and, as far as counsel’s researches go, unique. Result 48. In our judgment, subsection (4) of section 4 of the Massage Establishments Ordinance, Cap.266, is inconsistent with article 11(1) of the Bill of Rights and has been repealed by reason of such inconsistency. CONCLUSION 49. For the foregoing reasons, we: (i) dismissed the appeal against conviction; but (ii) allowed the appeal against sentence, reducing the defendant's sentence so as to bring about its immediate termination, doing that on a number of bases, including the generally important one that subsection (4) of section 4 of the Massage Establishments Ordinance, Cap.266, is inconsistent with article 11(1) of the Bill of Rights and has therefore been Bill repealed by reason of such Bill inconsistency.
Mr G.J.X. McCoy, Mr P.Y. Lo & Mr Victor Luk (instructed by the Director of Legal Aid) for the appellant Mr S.R. Bailey (of the Attorney General's Chambers) for the Crown |
Cases cited in this judgment