Lai Kwan Fung v. The Queen
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CACC000120/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 120 OF 1975 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 18th April, 1975. ----------------- JUDGMENT ----------------- 1. The appellant was charged with assault occasioning actual bodily harm but for the purposes of this appeal it is unnecessary to recite the facts. 2. The first ground of appeal is that the learned magistrate, to all intents and purposes, took over the conduct of the proceedings and by the nature of his questions showed or indicted a subconscious bias in favour of the prosecution. There are other grounds of appeal about which I need say no more than that, had it been necessary for me to deal with them, they would be unlikely to have succeeded. 3. The first ground of appeal however, has occasioned me considerable difficulty and hesitation. The difficulty arises from the form of the record of proceedings in the court below. It is apparent from the record that the learned magistrate himself put various questions to the witnesses, as he was perfectly entitled to do. In a record of some seven typed foolscap pages the notation "In answer to Court" appears some 15 times. It is apparent in each case that the answer which follows the notation was the answer to an unrecorded question put by the learned magistrate. Unfortunately, in almost each instance, it is impossible to tell whether, of the many answers following the notation, it was only the first which was in fact in answer to the court; for whilst the learned magistrate has been meticulous in his record to indicate that at a particular stage the court itself questioned a witness, there is in no instance any indication of where the court's questioning stopped and examination-in-chief or cross-examination resumed. In other words it is impossible to tell from the record how many questions were put by the learned magistrate at various stages of the trial, how much examination or cross-examination was undertaken by him - hence the allegation that he was, or may have been, in the arena. 4. Mr. Hanson, for the Crown, argues that from the context, it was only the one answer in each instance which was in response to a question from the magistrate. He concedes however that if this is not so and if certain answers, particularly those which amount to assertions of having told the truth in the witness-box and one which constitutes a denial of having discussed the case with the appellant were in fact given in answer to questions from the learned magistrate then the latter was "very close to the arena". 5. Let me say at once that I think it unlikely that the court did put any questions to witnesses suggesting that they were not telling the truth or had concocted a story with the appellant but, because of the form the record takes, I cannot be sure. And there is no way of making sure. To send the record back to the learned magistrate and ask him, would be an exercise in futility for the trial took place nearly four months ago and the magistrate, having dealt with scores of cases since, could not possibly remember, in respect of 15 different instances, just how far his questioning went or exactly where it stopped. I may not speculate as to what exactly happened and, that being so, the appellant must have the benefit of the doubt and the appeal be allowed. 6. This case does illustrate the necessity for any judge or magistrate, in writing his record, to make it entirely clear not only where questioning by the court begins, but also where it ends. In the present case the beginning of such questioning was impeccably recorded but what was missing, and what has bedevilled this Court, was some such notation as "x-xmntn (cont)" after questioning by the court had given way to resumed questioning by counsel. 7. The appeal is allowed, the conviction quashed and the sentence set aside. Representation: A.J.J. Sanguinetti (Ho & Wong) for appellant R.V. Hanson, C.C., for respondent. |