Attorney General v. Wong Yat-cheung and Another

CACC000941/1983

Headnote

The magistrate acquitted two defendants of informations laid under The Prevention of Bribery Ordinance. He made an order for costs in favour of the defendants relying upon Sec. 69(1) of the Magistrates Ordinance which provides that he may do so "if he is satisfied that the proceeding ought not to have been instituted. or pursued against the defendant".

Held on appeal -

Date of hearing : 12th August, 1983.

Date of handing down of judgment : 24th August, 1983.

BETWEEN

Coram: Hon. Cons, J. A., sitting as an additional Judge of the High Court

Date: 24th August, 1983.

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JUDGMENT

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1. This was an appeal by way of case. stated under Sec. 105 of the Magistrates Ordinance Cap. 227. I gave my decision at the conclusion of the hearing with a very brief explanation of the reasons that led me thereto. However as my decision was at variance with that of the magistrate below and in particular with respect to one proposition that counsel for the respondent did not seek to support, I thought it right that I should in due course give my reasons in full which I now do.

2. The basic facts are these. The two defendants were respectively the director and producer of a firm being made by Shaw Brothers (Hong Kong) Ltd. Some of the scenes in the film needed to be shot in a country villa.  There was a suitable villa nearby at Lot 232 Clear Water Bay Road. The defendants went there. They found a man by the name of YU Kar-lam. They negotiated with him for the use of the villa as a film set and he agreed. Later on the filming took place over a period of three days. For each of those days Mr. Yu received $600, payment being duly made through the accounts department of Shaw Brothers and supported by appropriate vouchers. In fact Mr. Yu was only the caretaker of the villa. He had no authority from his employer either to allow the film crew to enter the villa or to receive payment therefor.

3. As a result of all this the Attorney General preferred four informations against the defendants at San Po Kong Magistracy. The informations were laid under Sec. 9(2)(a) of the Prevention of Bribery Ordinance Cap. 201 in respect of the initial meeting and the three actual days of filming.

4. The principal witness at the trial was the caretaker himself. At the close of the case for the prosecution defence counsel submitted no case to answer on the ground that the caretaker was an uncorroborated accomplice and that in any event his evidence was inconsistent and conflicting. The magistrate rejected the submission. However after hearing evidence for the defence, which incidentally did not include that of the two defendants themselves, the magistrate found the defendants not guilty. He was "completely satisfied that they had acted innocently and without corrupt motive. They believed that YU Kar-lam was entitled to allow the film crew to enter the villa and its grounds, and to accept money therefor."

5. No complaint is made as to that decision. What is now called in question is the order for costs that the magistrate then made in favour of the defendants. The initiative came from himself. In effect he invited the defendants to apply for an order on a ground that he sets out more clearly as one of the subsequent grounds of his decision :-

6. There must be many factors which may influence the Attorney General in his choice of a particular level of court. The most obvious, and I should think by far the most usual, is the relative seriousness of the offence, i.e. whether the sentence likely to be imposed upon conviction is within the jurisdiction of the court. The offences in the instant case carry a maximum penalty on summary conviction of $100,000 fine and imprisonment for three years. It is difficult to believe that any one could seriously consider those penalties to be inadequate to deal with what the defendants were said to have done. The cynical approach is, I assume, based on the different criteria stipulated for an award of costs in favour of a defendant. A magistrate may only make an award "if he is satisfied that the proceedings ought not to have been instituted or pursued against the defendant": Sec. 69(1) of the Magistrates Ordinance. In the High Court and District Court the discretion is at large, so that costs may be awarded even though the prosecution is in fact properly brought : see, for example, R. v. Sansbury ⁽¹⁾. But in my view that difference goes no way to justify the assumption made by the magistrate. The answer to the formal question which proposes that assumption is a clear "No".

7. The other grounds on which the magistrate based his decision were these :-

8. With respect (ii) is of no assistance and there is no suggestion in the record that (iii) had caused any particular or additional costs to be incurred.

9. Ground (i) is elaborated into two questions in the case stated :-

10. The comments of Devlin, J. as he then was, in Sansbury are sufficient to dispose of the second question. In that case the trial of a defendant for dangerous driving causing death was stopped by the jury at the close of the prosecution evidence. It was a case heard on assizes so that the powers of the judge were wider than those of the magistrate in the present instance but the relevance of the principle involved is clear:-

"The recent pronouncement by the Lord Chief Justice in the Court of Criminal Appeal on this subject has not, I think, laid down any new law, but it has perhaps made it clear that the judge's discretion to award costs is rather wider than has hitherto been thought; and, in particular, I think that it has now been made quite clear that the notion, which was very generally entertained, that an award of costs against the prosectuion necessarily involved some reflection on the conduct of the prosecution or on the propriety of its being brought is quite wrong.

In this case the prosecution was properly brought. The investigations made by the police revealed what was apparently a prima facie case. But after a thorough and careful cross-examination by learned counsel for the defence it became clear that there was no reliable evidence that at the time of the collision the accused was on his wrong side of the road, and counsel for the prosecution rightly conceded that without such evidence he could not ask for a conviction.

Counsel for the prosecution in resisting the application for costs has argued that the police would be put in an impossible position if they had to constitute themselves as arbiters or quasi-judges in deciding whether to prosecute or not. They would be put in an impossible position if that were really their duty, but it is quite wrong to think that they are placed in that position. If the order which I am being invited to make involved any censure or criticism on the police, then they might be. But, as I have said, it is not so, and I expect the police to continue to prosecute in this type of case, as in any other type of case, wherever they think it right to do so in the future just as they have done in the past. I think that it would be wrong if, in making their decision whether to prosecute or not, they were to be influenced by any speculation about how the judge at the trial might be likely to exercise his discretion on this question of costs.

I am not dealing with the facts as a reasonable police officer would see them at the time of the decision to prosecute, but as they have emerged after the trial or so much of the trial as has been found necessary to bring about a verdict of Not Guilty."

11. The same judge made a similar comment in the House of Lords a few years later in the case of Glinski v. McIver ⁽²⁾:-

"They (the jury) may not appreciate unless they are carefully directed in the summing-up that there is a substantial difference between a case that warrants the making of a charge and one that survives the test of cross-examination with sufficient strength left in it to require consideration by a  jury which is concerned only with guilt beyond reasonable doubt."

12. How the facts appeared to the prosecuting authority at the time when the decision to prosecute or not had to be made will usually be most easily found later in the proofs of the prosecution witnesses. These were offered to the magistrate below, but unfortunately he declined to look at them.

13. The principles to be adopted when considering a submission of no case to answer are to be found now in R. v. Galbraith⁽³⁾ :-

"How then should the judge approach a submission of 'no case'? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury."

14. Counsel for the Crown submitted that if a magistrate has in fact rejected such a submission it must inevitably follow that there was evidence which could justify a finding of guilt, and ipso facto the institution of the prosecution. The Standard he proposed for the latter was "evidence in the possession of the Attorney General which is not patently unbelievable and which, if believed, would result in a conviction".

15. In normal circumstances I would accept that standard, but there are classes of case that introduce what, at one time at least, might have been considered abnormal circumstances. These are those cases where statute imposes some or other burden upon a defendant. The Dangerous Drugs Ordinance Cap. 134 provides several examples.  Counsel instanced the possession of a key to a suitcase in which a dangerous drug is found : Sec. 47(1) (b). He submitted that evidence in the hands of the Attorney which showed possession of the key would alone be sufficient to warrant prosecution. He would not accept as a matter of law that the prosecuting authority needed first to make inquiries from the possessor of the key, although he was confident that in practice they would.  He relied in support of his position from comments made by Viscont Simonds in Glinski :-

"On this matter it is not possible to generalize but I would accept as a guiding principle what Lord Atkin said in Herniman v. Smith(4), that it is the duty of a prosecutor not to find out whether there is a possible defence but whether there is a reasonable and probable cause for prosecution."(5)

16. It must be observed, however, that those words were used in an action for malicious prosecution arising out of charges of conspiracy and of obtaining goods by false pretences. With every respect I do not think His Lordship had in mind the kind of case with which we are now concerned. Each particular case must inevitably turn on its own facts but as a general guideline it would seem to me that where the decision of a magistrate turns upon the defendant's being able to discharge an onus placed upon his by a particular statute then, if by making inquiry the defendant's undoubted ability to do so would have been immediately obvious to the Attorney and yet he still prosecuted, a magistrate would be entitled to say that the prosecution ought not to have been brought. Such cases are likely to be rare, for in most instances the discharge of the onus will turn upon what view is taken of the defendant's or his witness's reliability or upon other matters which are generally speaking within the province of the jury. But I feel that the answer to the formal question posed in these proceedings should make allowance for that remote possibility.

17. The answers therefore to question (i) and (ii) are respectively "Yes" and "No".

18. Question (iv) posed the consequential question of whether then the magistrate was wrong in law. The answer has to be "Yes".

19. Question (v) asked whether, if that was the case, should the order for costs be revoked. The answer to that depended upon what was in the possession of the authorities. I understood from Counsel that they had a statement from the caretaker clearly implicating the defendants. There was nothing to suggest that he was unreliable or would not come up to proof. They had statements from each of the defendants indicating innocence. They had a statement from a third party, ultimately called by the defendants as a witness, which tended to support their statements. In my view the resolution of these contradictions was very properly brought to court and I accordingly set aside the order for costs.

(1)     (1959) 3 All England 472

(2)     (1962) 1 All England Reports 696 at 715D

(3)     (1981) 73 Crim. App. R. 124 at 127

(4)     (1938) 1 All E.R. at p. 10

(5)     at 701H

Representation:

E.C. Harris, Crown Counsel for Appellant.

Michael Lunn (M/S Robert W.H. Wang & Co.) for the Respondents.