HKSAR v. BALRAJ SINGH

bjbj% HCMA 1151/2002 HEADNOTE Quite often a magistrate s decision turns entirely on the facts and depends simply on whether he feels sure that the account given by the prosecution s witnesses is true while the account or explanation put forward by the defence is false, and on whether he regards the accused s guilt as the only reasonable inference on the facts he finds proved beyond reasonable doubt. In such cases, magistrates sometimes do and sometimes do not recite the evidence and arguments at some length and set out their analysis of the same in some depth. It is impossible to lay down hard and fast rules as to when it is necessary or even desirable that they do so. On the one hand, for example, it may happen that a magistrate comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding was unsafe and may therefore quash the conviction (per Huggins J in R v Ma Kwai Chong [1968] HKLR 654 at p. 657). On the other hand, for example, there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes (per Mills-Owens J delivering the Full Court s judgment in R v Lam Tin Chung [1970] HKLR 105 at p. 106). Thus in R v Law Keung, Criminal Appeal No. 625 of 1972 (31 October 1972) Rigby CJ said that: magistrate should when necessary, set out fully and concisely not only their findings of fact but the reasons for their decision and the evaluation of the evidence of the witnesses, both of the Crown and the defence, given before him. (emphasis added) These are examples of the sort of situation which can arise. A general observation which can be made is the one made by Birkett LJ in Dorrington v Griff Fender (Swansea) Ltd [1953] 1 WLR 690 at p. 694: Merely because a judge does not mention a thing, it does not follow that he has not had it in mind. That was a civil case, but the observation holds good for criminal cases too, subject only to the particular caution called for in criminal cases. In R v Lam Tin Chung (supra) the Full Court said at pp. 113-114: Without attempting to set any precise limits on what is required in a criminal case we would say that the closer a judgment comes to what would be expected in a summing-up the less danger is there that an appellate court will find itself compelled to interfere. That was said in an appeal from the District Court, but the statement can apply not only to a District Court judge s Reasons for Verdict but also to a magistrate s Statement of Findings. However, the point is that in dealing with the facts when summing-up, the judge summarizes the evidence and sets out the issues to be resolved by the jury. The judge who sums up does not analyse the evidence, not being a tribunal of fact deciding issues of fact. A summing-up therefore would not contain the analysis which the Appellant asked for in the present case. Whether or not a prosecution witness s evidence can be safely accepted or a defence witness s evidence can be safely rejected depends very often on the impression which the magistrate forms when seeing and hearing the witnesses. Such an impression, which will naturally be formed in the context of the inherent probabilities, does not readily lend itself to being described in words. If our legal system proceeded on the basis that the appellate court needed to have such a description, it would leave no room for the jury system. And yet the jury system exists as the one to which the most serious criminal cases are entrusted under our legal system. To judge whether a tribunal of fact was entitled to regard an inference of guilt as the only reasonable one, there is usually little or nothing more that an appellate court needs than a picture of the facts on which the tribunal of fact drew such an inference. The basis on which the inference was drawn does not readily lend itself to elaboration. Otherwise the jury system could hardly be justified let alone highly prized as it is under our legal system. It is necessary to appreciate what is at stake for persons appealing against criminal convictions. But as Keith J. said in R v Hui Kee Fung, Magistracy Criminal Appeal 196 of 1994 (26 July 1994) at p. 7: Appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. HCMA 1151/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO. 1151 OF 2002 (ON APPEAL FROM TWCC 2481/2002) ____________ BETWEEN HKSAR Respondent and BALRAJ SINGH Appellant ____________ Coram: Hon V. Bokhary J in Court Date of Hearing: 28 February 2003 Date of Judgment: 28 February 2003 _______________ J U D G M E N T _______________ The Appellant faced one charge of dealing with dutiable goods otherwise than in accordance with the Dutiable Commodities Ordinance (Cap. 109), contrary to section 17(1) of that Ordinance as read with section 46(3) thereof. He was jointly charged with another person. That other person was Lo Wai Hung, a 17 year-old boy who, in the Appellant s presence at the entrance of a car park in Kwai Chung at about 11:55 a.m. on 29 July 2002, was seen by three patrolling Customs Officers pouring motor spirit into the fuel tank of the Appellant s private car through a funnel and by means of a rubber hose connected to a jerry can containing motor spirit. Lo pleaded guilty. But the Appellant pleaded not guilty. His trial took place before Kevin A. Browne Esquire in the Magistrate s Court at Tsuen Wan. On 29 October 2002 the Magistrate convicted the Appellant and fined him $3,000. The Appellant now appeals against conviction. At the trial, the Appellant did not dispute the prosecution s case: that he had been present when Lo poured motor spirit into his car on the occasion in question; that a total of 25 litres of motor spirit was drawn from the fuel tank of his car; that the total value of the motor spirit so drawn was $271.25; that the potential duty of this amount of motor spirit was $151.15; that motor spirit was a light oil within the meaning of the Dutiable Commodities Ordinance; and that the motor spirit which had been poured into his car was suitable as a fuel for it. What he disputed was that he had been standing where the prosecution s evidence put him at the time when Lo poured motor spirit into the fuel tank of his car. According to the prosecution s evidence, the Appellant had been standing about a foot away from the left side rear of his car and approximately two to three feet from his fuel tank. In giving evidence, the Appellant said that he was standing some three to four feet from his car and on the side opposite to its fuel tank. The Appellant denied that he had authorized Lo to pour motor spirit into his car or was aware that Lo was doing that. The effect of his evidence and that of his witness, Mr Ho Chin Kai, was as follows. He had a problem with his car. On the afternoon before the morning of the incident, he handed the car over to Mr Ho, who was his regular mechanic, for repair. Mr Ho drove the car home. At about 9 o clock on the morning of the incident, he drove the car to Tsuen Wan for a spare part, namely a second-hand charger. He then drove the car to the car park in question, replaced its charger with a second-hand charger he got in Tsuen Wan, and telephoned the Appellant telling him that the car had been repaired and could be picked up at the car park. In response to this call, which was sometime between 10 and 11 that morning, the Appellant went to the car park. Mr Ho had told Lo to refuel the car because he had noticed that it had almost no fuel. He did not mean for Lo to do it with motor spirit. The reason why he was not there when the Appellant turned up at the car park was that, not knowing that the Appellant would come at that time, he had gone off to meet his girlfriend for lunch. On the day after the incident, the Appellant telephoned Mr Ho asking for a receipt for the repair to his car. Mr Ho had already written out a receipt, and he gave it to the Appellant. The Magistrate rejected the defence evidence. The last two paragraphs of his Statement of Findings read: I had not the slightest doubt that D2 and his witness were lying about the circumstances in which the illicit fuel came to be put into the defendant s vehicle. Having considered the evidence adduced by the prosecution I was satisfied beyond reasonable doubt that D2 knew that illicit fuel was being put into his car and that the prosecution had proved all the ingredients of the offence beyond reasonable doubt. I will now set out the whole of the grounds of appeal prepared by counsel for the Appellant: For the reasons that follow the conviction recorded against the appellant is unsafe and unsatisfactory. 1. The Learned Trial Magistrate wrongly failed to evaluate the evidence of the appellant defendant properly or at all. (i) the defendant had a clear record and responsible employment with the Hong Kong Correctional Services; (ii) the defendant admitted the entirety of the prosecution case save the distance he was standing from his vehicle at the time the Customer & Excise arrived was disputed by some several feet; (iii) the defendant denied instructing D1 or having knowledge that D1 was filling his car with the fuel in question; (iv) the evidence of D2 was that he had just arrived on the scene moments before the Custom & Excise Officers; (v) there was nothing inherently incredible or implausible in the defendant s evidence; (vi) yet the Magistrate boldly stated without giving any supporting reason that he did not believe the evidence of D2 (see page 16 of Statement of Findings). 2. The Magistrate gave no reason whatsoever as to why he did not believe the evidence concerning the receipt. The receipt was provided to D2 from DW1. 3. The Magistrate stated: I had not the slightest doubt that D2 and his witness were lying about the circumstances in which the illicit fuel came to be put into the defendant s vehicle. Yet he gave no reason whatsoever as to why he formed this view. (The view was formed in the face of D2 and DW1 s clear records.) 4. The Magistrate failed to consider the legal defence in this case, see s. 17(11) in view of the absence of any evidence of (i) the Defendant consenting or conniving the commission of the offence; (ii) the lack of any direct evidence that the Defendant had knowledge that the offence was being committed, (iii) the lack of any opportunity that the Defendant had to commit the offence; (iv) the nature of the offence and the position and circumstances of the Defendant as provided in his evidence. 5. The Magistrate merely recited the prosecution evidence and rejected the evidence of the defence without any or any proper reasoning or analysis. Quite often a magistrate s decision turns entirely on the facts and depends simply on whether he feels sure that the account given by the prosecution s witnesses is true while the account or explanation put forward by the defence is false, and on whether he regards the accused s guilt as the only reasonable inference on the facts he finds proved beyond reasonable doubt. The present case is such a case. In such cases, magistrates sometimes do and sometimes do not recite the evidence and arguments at some length and set out their analysis of the same in some depth. It is impossible to lay down hard and fast rules as to when it is necessary or even desirable that they do so. On the one hand, for example, it may happen that a magistrate comes to a conclusion which is contrary to what, on the record, appears to be the weight of the evidence and in such a case, if he does not give reasons which commend themselves to an appellate court, it may well be that the appellate court will come to the conclusion that his finding was unsafe and may therefore quash the conviction (per Huggins J in R v Ma Kwai Chong [1968] HKLR 654 at p. 657). On the other hand, for example, there may be cases where the tribunal is left with a direct choice between the evidence of A and that of B, with no accompanying factors or features to aid in coming to a decision, and where therefore the tribunal can do little more, if anything, than say which of the witnesses it believes (per Mills-Owens J delivering the Full Court s judgment in R v Lam Tin Chung [1970] HKLR 105 at p. 106). Thus in R v Law Keung, Criminal Appeal No. 625 of 1972 (31 October 1972) Rigby CJ said that: magistrate should when necessary, set out fully and concisely not only their findings of fact but the reasons for their decision and the evaluation of the evidence of the witnesses, both of the Crown and the defence, given before him. (My emphasis) These are examples of the sort of situation which can arise. A general observation which can be made is the one made by Birkett LJ in Dorrington v Griff Fender (Swansea) Ltd [1953] 1 WLR 690 at p. 694: Merely because a judge does not mention a thing, it does not follow that he has not had it in mind. That was a civil case, but, in my view, the observation holds good for criminal cases too, subject only to the particular caution called for in criminal cases. In R v Lam Tin Chung (supra) the Full Court said at pp. 113-114: Without attempting to set any precise limits on what is required in a criminal case we would say that the closer a judgment comes to what would be expected in a summing-up the less danger is there that an appellate court will find itself compelled to interfere. That was said in an appeal from the District Court, but I think the statement can apply not only to a District Court judge s Reasons for Verdict but also to a magistrate s Statement of Findings. However, the point is this. In dealing with the facts when summing-up, the judge summarizes the evidence and sets out the issues to be resolved by the jury. The judge who sums up does not analyse the evidence, not being a tribunal of fact deciding issues of fact. A summing-up therefore would not contain the analysis which the Appellant is asking for in the present case. Whether or not a prosecution witness s evidence can be safely accepted or a defence witness s evidence can be safely rejected depends very often on the impression which the magistrate forms when seeing and hearing the witnesses. Such an impression, which will naturally be formed in the context of the inherent probabilities, does not readily lend itself to being described in words. If our legal system proceeded on the basis that the appellate court needed to have such a description, it would leave no room for the jury system. And yet the jury system exists as the one to which the most serious criminal cases are entrusted under our legal system. To judge whether a tribunal of fact was entitled to regard an inference of guilt as the only reasonable one, there is usually little or nothing more that an appellate court needs than a picture of the facts on which the tribunal of fact drew such an inference. The basis on which the inference was drawn does not readily lend itself to elaboration. Otherwise the jury system could hardly be justified let alone highly prized as it is under our legal system. I fully appreciate what is at stake for persons appealing against criminal convictions. But as Keith J. said in R v Hui Kee Fung, Magistracy Criminal Appeal 196 of 1994 (26 July 1994) at p. 7: Appeals from decisions of magistrates on questions of fact should not be regarded by the litigants as simply another opportunity to re-try the facts. In my view, the Magistrate was entitled to feel sure, as he did, that the truth had been told by the prosecution witnesses and not the defence witnesses. I am unable to say that he insufficiently indicated why. In my view, he was entitled, on the facts he found proved beyond reasonable doubt, to take the view that the accused s guilt was the only reasonable inference. I am unable to say that he insufficiently indicated why. Accordingly, the appeal is dismissed. (V. Bokhary) Judge of the Court of First Instance High Court Mr E L McGuinniety, instructed by Messrs Tang, Wong & Cheung, for the Appellant. Mr Prakash L Daryanani (of the Department of Justice) for the Respondent. A B C D E F G H I J K L M N O P Q R S T U V A B C D E F G H I J K L M N O P 1udk 1udk V i$&`G user HCMA.dot setup Microsoft Word 9.0 Judiciary Hong Kong Title Microsoft Word Document MSWordDoc Word.Document.8