Szeto Ming v. The Queen

CACC000097/1978

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Coram: O'Connor, J.

Date of Judgment: 10th February, 1978.

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JUDGMENT

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1. The appellant was convicted of Blackmail and Theft both contrary to the Theft Ordinance. The charges arise out of an allegation that he obtained separation money from a former girl friend. His trial commenced before a magistrate on the 29th November 1977 and the girl friend was affirmed and commenced to give evidence. After she was a short way into her evidence the trial magistrate stopped the trial and ordered a trial de novo before another magistrate on the ground that the witness, the former girl friend, appeared to be under the influence of drugs or to be unwell. The trial de novo took place before another magistrate on the 23rd December, 1977, and the appellant was convicted. It is from those convictions that he appeals. When the former girl friend gave evidence before the second magistrate the appellant in cross-examining her, put to her that her evidence was completely different from what she had said before the first magistrate. The girl friend denied that she had given evidence previously, and the matter was not pursued any further. There is no further reference in the evidence or the findings to the girl friend's original evidence. In fact her evidence before the first magistrate did differ from that before the second magistrate, though not in the way the appellant suggested to her. It differed in that before the first magistrate she said that at the time of the alleged incident she met appellant as she was going up a staircase whereas before the second magistrate she said she met him when she entered a lift, in which by implication she was going down to a lower floor. This discrepancy might possibly have been cleared up if the matter had been probed before the trial magistrate. Of course what was said before the first magistrate was not in evidence before the trial magistrate though it was part of the case file, but in my opinion the trial magistrate ought to have assisted the appellant to conduct his case, at least to the extent of advising him that he could put her previous evidence to her and if necessary prove it in evidence. In R. v. Page (1847) 2 Cox Criminal Cases 221 Maule J. said "The fiction of law in criminal cases is, that the judge is counsel for the prisoner". I consider those words are still applicable today in a case where an accused person is unrepresented. It is the duty of a trial judge or magistrate to protect the interests of an unrepresented defendant and give him such assistance as necessary for the proper conduct of his defence. R. v. Doubleday (1917) 12 Criminal Appeal Reports 240, R. v. Barker (1927) 20 Criminal Appeal Reports 70 and see R. v. Suen Chuen 1963 H.K.L.R. 630 at 651. Admittedly a judge or magistrate must be careful not to step into the arena, but that does not mean that he is prohibited from ensuring that any defence a defendant might have or any point he has to make is fully brought out.

2. Having regard to the discrepancy I have referred to I called for the original statement that the girl friend had made to the police. It disclosed a material and potentially fatal discrepancy between her version to the police and what she told the trial magistrate. Of course the prosecutor ought to have brought that to the notice of the trial magistrate. In the circumstances I allowed the appeal and set the conviction aside but in the light of all the evidence I ordered a re-trial before another magistrate.

Representation:

Appellant in person

Ingham, Crown Counsel, for Respondent.