ATTORNEY GENERAL v. WONG KWOK HIP

HEADNOTE

Procedure -during trial – improper for a court to stop a trial before the prosecution has adduced all evidence it proposes calling- case remitted for retrial before another magistrate.

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 674 OF 1987

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BETWEEN

The Attorney General

and

WONG Kwok-hip

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Coram: Hon. O’Dea J. in Court

Date of hearing: 10th September 1987

Date of delivery of judgment: 10th September 1987

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J U D G M E N T

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1. The respondent appeared for trial at North Kowloon Magistracy on an information alleging that he had, on a given date driven hisprivate car on a road carelessly. He pleaded not guilty and the Crown informed the trial magistrate that it would call three witnesses,two of whom were civilians.

2. The first prosecution witness, who was the driver of a public bus which was in collision with the respondent’s car, gave evidencein chief and while being cross-examined by Counsel for the respondent was stopped by the learned magistrate who indicated he foundhis evidence unbelievable and found no case for the respondent to answer.

3. The Crown now appeals by way of case stated. The question which is posed is whether tile magistrate, in dismissing the informationwhen he did, erred in law.

4. In his record the learned magistrate gave the following as his reasons for stopping the trial when he did:-

“Evidence was unbelievable. Only a stuntman as good as Jacky Chan can do cutting so fast with part of the head of the defendant’svehicle into No. 167 Wai Yip Street.”

5. I do not pretend to fully understand this reasoning although accept that it was probably written in an abbreviated fashion and conformsto his later explanation that he considered it most unlikely that the respondent’s car could have cut in so quickly thereby collidingwith the bus.

6. What does give me cause for concern is not so much whether the magistrate was entitled to take this view but that he ruled therewas no case to answer before the evidence of the first witness was completed and without hearing at all from the other two witnesseswhom the Crown proposed to call.

7. It seems to me to he a fundamental principal that a party has a right to be fully heard and this applies equally to the Crown asit obviously does to the defence. This principal was highlighted as recently as December, 1986 when the learned Chief Justice inR. v. Lee Yung-chi (C.A. 1004/86) said:-

“I need not refer to any authorities for the proposition, which is indeed self-evident, that it is improper for a court to reacha decision as to whether or not there is a case to answer until it has heard the whole of the evidence which the prosecution wishesto put before it.”

8. The same question was considered in The Attorney General v. Lam Yuk Chuen (Magistracy Appeal 178/87), when Garcia J. quoted from the Chief Justice’s judgment and added: –

“I fully agree with the views expressed by the Chief Justice in that case and would only add that the prosecution is entitled toput its case in full before a judge or a magistrate, before it is ruled upon.”

9. I can only concur and add that the legislature seems also to have embraced this view as Sec. 19(1) of Magistrates Ordinance (Cap. 227) provides:-

“Where the defendant is present at the hearing, the substance of the complaint or the whole of the information shall he read overto him …… if he does not admit the truth of the information as aforesaid. then the magistrate shall proceed to hear upon oaththe complainant or informant and such witnesses as may be produced in support of the complaint or information ……

10. The emphases of course, are mine but clearly the Ordinance regulating proceedings at hearings imposes a clear obligation on magistratesto hear all of the evidence adduced by the Crown.

11. It must remain a matter of concern that, despite recent pronouncements by the appellate courts on this matter, magistrates seem stillunaware of or unwilling to comply with this very basic principal.

12. For the reasons given, I allowed the appeal and remitted the case for re-hearing before another magistrate.

(P.G. O’Dea)
Judge of the High Court

Mr I.G. Cross for Crown

Mr M. Wong (inst. By Joseph C.T. Lee & Co.) for Respondent