THE QUEEN v. CHAN TAK KWONG

bjbj CACC000134/1983 Head Note Accused convicted on changes of murder and robbery - preliminary point taken on appeal that the trial was a nullity because of the failure of the committing magistrate to comply fully with the provisions of Sections 82 and 83 of the Magistrates Ordinance complaint rejected - The Queen v. Mok Chung (1975) H.K.L.R. 416 no longer to be followed. IN THE COURT OF APPEAL 1983, No. 134 (Criminal) BETWEEN THE QUEEN and HO YEE CHUNG CHAN TAK KWONG LEUNG CHI HO Applicants _________ Coram: Hon. McMullin, V.-P., Li & Silke, JJ.A. Date: 20th January 1984 ____________ JUDGMENT ____________ McMullin, V. -P.: The four defendants were tried in the High Court upon an indictment in which they were jointly charged upon two counts. The first count alleged the murder, on the 22nd of November, 1981 at Yuen Long of Cheng Tung-shing, a serving police officer of the Royal Hong Kong Police Force. In the second count they were charged with robbing that officer of his service revolver at the place and date stated in the first count. The jury returned their verdicts on the 25th of January, 1983. The 1st defendant, Ho Yee-chung, and the 4th defendant, Leung Chi-ho, were convicted of murder while the 2nd and 3rd defendants, Chan Tak-kwong and Tam Kwai-yuen were convicted of manslaughter. All four were convicted upon the second count. The four defendants sought leave to appeal against their convictions,but the 2nd and 3rd withdrew their applications. Subsequently the 2nd defendant attempted to withdraw his Notice of Abandonment but this application was rejected by the Court of Appeal on the 16th of August 1983. He appeared before us on the Governor's reference under s.83P(1)(a) of the Criminal Procedure Ordinance The applicants are separately represented and counsel have put in formal grounds of appeal in which a number of objections are raised, alleging various misdirections on law and fact touching the case of each defendant and deriving from the evidence adduced in support of the charges. We are at the moment concerned, however, with an objection taken on behalf of all three applicants which is logically prior to all other issues raised on behalf of the defendants and which, because of its nature, we have dealt with as a preliminary issue without calling for argument on any of the other points. We have done so partly because the hearing of the appeal on this one issue greatly exceeded the time alloted for the hearing at large and also because if decided in favour of the applicants, consideration of the other points would be otiose since what is said is that the whole trial was a nullity. Mr. Jimmy Kwong for the 1st defendant takes a second point relevant only to the case of his client which he argues should, if resolved in his favour, have the same effect and to that we will return later. The point common to the cases of all three defendants was taken before the trial Judge on the 9th of November, the 27th day of the trial. All the previous days had been taken up in lengthy proceedings upon voir dire relating to statements of the defendants which the prosecution were seeking to have admitted in evidence. On that date, Mr. Kwong drew the Judge's attention to an apparent non compliance with the provisions of s.82(3) of the Magistrates Ordinance on the part of the committing magistrate prior to making the order whereby the defendants were sent forward for trial. The magistrate's record noted compliance with the procedural requirements of sub-section 1,2 and 4 of s.82, but there was nothing on the record to show that the statement made by the 1st defendant and recorded by the magistrate under that section had been read back by him to the defendant in accordance with the provisions of subsections 3 of s.82; prior to its being signed by the magistrate and the defendant in accordance with that sub-section. The effect of this, counsel argued, was to nullify the committal of his client and consequently to stultify the subsequent proceedings in the High Court. Mr. Sparrow for the 4th defendant took the same point before the trial Judge, since a much shorter statement made by his client attracted the same criticism. No submission was made at the trial in relation to the committal of the other two defendants, each of whom had, when addressed by the magistrate in accordance with the provisions of s.82(1), announced an intention of preserving his defence until trial. Nevertheless, Mr. Keane who appears on the appeal on behalf of the 2nd defendant maintains that the point enures equally to the benefit of all the defendants, including the 3rd defendant who has not appealed. This is so, he says, upon two grounds. Firstly (and this is in fact the only ground mentioned in his memorandum of appeal) because this was a joint committal of several persons, followed by a joint trial upon two charges implicating all of them, and thus the magistrate's error infects the entire committal at its root. This court should not, counsel argues, seek to sever the cases of the 2nd and 3rd defendants from that of the 1st and 4th. Secondly, Mr. Keane says, that in any event, the mere announcement by his client of an intention to reserve his defence is itself a statement in answer to the charge and thus puts his case on all fours with that of the other defendants. In this regard he relies on the decision of Trainor, J. in the Queen v. Mok Chung (1975) H.K.L.R. 416. It may be said at the outset that it is very unlikely that the opportunity to attack the validity of the trial upon this ground would ever have presented itself if the committing magistrate had followed the several prescriptions of s.82 by the safe, if laborious, method of noting in his own writing his carrying out of all the steps required of him under the section, together with the relevant reactions of the several defendants. Instead of doing this, he worked from a type-written proforma which purported to set out the several requirements of s.82 and 83 ticked off, with minor holograph alterations, to reflect the exact circumstances of the events as they had occurred in the actual course of complying with these sections. The contents of this document were subsequently embodied in the transcript of the committal proceedings (pages 58 and 59). Whatever the convenience of it, there is patent risk in using such a form in that, especially when used by the ticking off method to cover the procedure relating to several defendants, it may not accurately reflect what was done and said. In a minor respect, this risk is demonstrated by the fact that although the record shows a chorus, in direct speech, by the four defendants to this effect: We wish to reserve our defences until my (sic) trial at the high court the words actually spoken by the 2nd defendant as subsequently recorded by the magistrate the relevant form (Form 78) in accordance with s.82(3) are: "I reserve my rights to the high court." The real mischief deriving from this particular proforma which was ill drafted - is also the foundation of the present objection - is that nowhere in it, either as it stands or as it appears embodied in the transcript of the committal record, is it said that the statements made by the 1st and 4th defendants in answer to the charges were ever read back to those defendants. When the point was raised at the very late stage it was in the court below, Mr. Alderdice, who then appeared for the Crown, as he does before us, intimated that if the Judge was concerned about this formal objection, the prosecution were prepared to adduce evidence from the committing magistrate to cover this point and also to cover the other objection raised by Mr. Kwong in respect of the 1st defendant - of which more later In the event, no such evidence was called. The Judge - with whom we have every sympathy when thus suddenly confronted with what must have seemed to him an entirely formalistic threat to proceedings already one month under way - took the robust view that it was most unlikely that the magistrate had not read over the statements after the recording. He directed his remarks finally to the statement of the 1st defendant in so ruling because his was the only statement of any length and because Mr. Sparrow was content to associate himself with Mr. Kwong in adopting the latter's objection without arguing the point separately on behalf of the 4th defendant, whose statement was very brief. The Judge's ruling undoubtedly applied to both defendants. He found no substance in either of the objections made by counsel to the committal proceedings and the trial continued after he had further ruled upon the question of the voluntary character of the statements of the defendants which the prosecution were seeking to have admitted in evidence. Mr. Alderdice, as we understand him, does not contend that there was evidence to support this factual finding by the Judge. He concedes that no presumption of regularity may be invoked in relation to the committal proceedings and that insofar as the Judge may be said to have relied on it, he was in error. The performance by the magistrate of his duty of reading back the statement was one of several conditions to be fulfilled before the order for committal was made, and the record does not show, on the face of it, that that duty had been discharged. (in this regard, see Wade: Administrative law, 5th Ed., at p.307 8, and the cases cited, in particular Taylor v. Clemson (1842) 2 A & E, 1030, at 1034). He argues, however, that there has been substantial compliance with s.82(3) and that, in the absence of any prejudice to the cases of the defendants being shown to have resulted from any possible failure to read back their statements to them, the Judge would in any event have been entitled to proceed with the trial on the basis that the error in the committal proceedings, even if it had gone so far, did not render the proceedings before him invalid. Counsel appreciates that the objection from the other side seeks to obviate all resort to the notion of prejudice by insisting that, in the absence of a demonstrated compliance with this particular duty, the order for committal was bad. In that sense it is said that the mere failure to record compliance was fatal. The argument before this court on this point was centred on the distinction which has frequently, been drain in cases of this kind between statutory provisions which are said to be mandatory and therefore imperative in the sense that bare non-compliance with them wil1 wholly nullify the proceedings to which they relate, and provisions which are merely directory, the non-observance of which will not have that effect - at least in the absence of some material prejudice to the person whose rights they are supposed to protects. It is convenient at this point to note that if the latter view of the duty under consideration is the correct one, then it can be said at once that we are satisfied that no possible prejudice arising from the use to which these statements were put to the course of the trial can be seen to affect the case of any of these defendants, even if it be presupposed that their recorded words were not read back to them at the committals. The Crown did not seek to introduce these statements in evidence and the statements of the 1st and 4th defendants, though not formally exhibited, were resorted to by defence counsel in cross-examination of these two defendants whose defences were sharply at oods. In the result the 1st defendant agreed that the words attributed to him were those he had spoken before committal, as recorded by the magistrate. The 4th defendant made a similar concession, although adding an explanation of what he had meant by his brief and somewhat cryptic reply to the charge. The contents of these two statements fall to be considered in connexion with Mr. Kwong's second point. As to the first issue, counsel for all three defendants relied heavily upon three Hong Kong cases. In Chan Kam Chau (1971) H.K.L.R. 383, the Full Court held that the mere failure to record compliance with the provisions of s.81B which empowers a magistrate to reciive a plea of guilty from a person before him in committal proceedings, was on its own sufficient to vitiate the committal and nullify what followed. There was, as the court found, no evidence either way to show what had actually happened at the stage when the ingredients of the charge should have been explained to the defendant in accordance with the provisions of that section. Chan was expressly relied upon by Trainor, J. in the Queen v. Mok Chung (1975) H.K.L.R. 416, where the procedural defect was precisely that with which we are now confronted, viz., the silence of the record as to compliance with s.82(3) of the Magistrates Ordinance. He found that the failure to record the fact that the statement of the accused had been read back to him rendered the committal void. Later, in the same year, Huggins, J. (as he then was) seems in effect to have followed the same reading of the section while differing from Trainor, J. in finding that a statement which was in terms very similar to those of the statement under consideration in the earlier case consisting merely of the words "I have nothing to say" - did not amount to a statement "in answer to the charge" within the meaning of s.82. This is the true ratio of that case. In so declining to follow the earlier case, it may be that Huggins, J.found it unnecessary to consider with any particularity the difference between the requirements of s.81(B) and those of s.82(3) so that his implied endorsement of Trainor, J.'s application of Chan Kam Chau to a default under the latter section may have been per incuriam. There is, as it appears to this court, a significant, indeed a crucial difference between these two provisions. Section 81(B)(3)(c) provides that the magistrate shall "record the outline of the alleged facts and any statement made by the accused in pleading guilty to the charge and that the offence and the ingredients which at law constitute the offence were explained to the accused". Section 82(3) is as follows: "(3) Whatever the accused says in answer to the charge shall be taken down in writing and read over to the accused and signed by the magistrate and, if the accused so desires, by him, and shall be transmitted with the depositions as hereinafter mentioned. On the trial the statement of the accused taken down as aforesaid, and whether signed by him or not, may be given in evidence without further proof thereof, unless it is proved that the magistrate purporting to sign the statement did not in fact sign it." The obligation to explain to an accused person, who is purporting to plead guilty, the ingredients of the offence with which he is charged, and the nature of the evidence which is relied upon to support it, is clearly one of fundamental importance to the validity of any plea which may follow. Its importance is underlined by the express instruction to record the fact that that has been done. No similar instruction is isserted in s.82(3) to reinforce the requirement that the accused's statement shall be read back to him. That is a difference which perhaps does no more than draw a line under the importance which the legislature attaches to a provision of which it may be said that it bears its own significance on its face. It is not difficult to see that the mere failure to record compliance with s.81(B)(3)(c) must have in itself a vitiating effect on the magistrate's procedure since if, when sent up for sentence, the accused seeks to go back on his plea, the superior court has no means of holding him to it, however much it may suspect him of dishonesty, if he then complains that he had not understood the nature of the case against him at the time when he pleaded. We are not bound by the decision in Mok Chunk, but we are, in any event, satisfied that it was incorrect and ought not to be followed. By contrast with s.81(B)(3)(c), in s.82(3) the legislature is directing its attention principally to matters of an evidential character relating to a prospective trial and in particular it is ordering the procedure to be followed in order to ensure that a particular piece of evidence will be properly obtained and dealt with in such a manner as to preserve it from objection on formal grounds. Where such a statement has been made and recorded but not read back, and it favours the Crown's case so that the prosecution seek to tender it in evidence at the trial, and where the accused then demurs to it on the ground that it had not been read back to him, it would be valueless as proof where the prosecutor conceded that such had been the case, even though the accused might have signed it. But even if that were not conceded, the result would be no different if, on the face of the record, there was nothing to show that that particular part of the procedure had been complied with. That provision is mandatory only in the sense that failure to comply with it nullifies the procedural act which is regulated by sub-section 3 and avoids its proper consequence which is the securing of an admissible record of the accused's reaction to the charge. Counsel on both sides agreed that we must look to the purpose of the legislature in this part of the Ordinance to see whether any particllar provision is to be read as mandatory in the full sense which implies that departure from it touches the essence of the whole procedure and stultifies it. It is also conceded that a provision may be mandatory as to substantial compliance but directory only as to precise compliance. (see Wade, Op Cit. page 218). The purpose of sections 81-87 is to regulate committal proceedings and to that end certain procedural safeguards are provided to obviate errors of varying degrees of substance. Sub-section (3) seeks to provide against a mischief which would undo its purpose; that mischief is walled within the sub section itself, and when it occurs it can be effective only to inhibit the production of material which would otherwise be available as evidence. Where, as in the first defendant's case, a statement is exculpatory in form and the defence wish to have it produced, there could be no objection to this on any ground of reason or common sense, since the only purpose of reading it back is to have the accused's endorsement of its accuracy. Failure to comply with the provisions of s.82(3) is of a wholly different character from such defaults as have been held to be radically destructive in such cases as R. v. Gee & Others (1936) 2 All E. R. 89; R. v. Philips & Another (1938)3 All E.R. 674; and the Queen v. Lee Chi wai (1973) H.K.L.R. 505. In all these cases the irregularity which occurred touched the manner of dealing with the depositions of witnesses for the Crown in committal proceedings, either through failure to have them signed by the witness (Lee Chi wai), or else because of some other default which rendered them invalid (R. v. Philips & Another, and R v. Gee & Others). These depositions are the evidential foundation of the Crown's case and if they fall away there is nothing to support the committal on the charges to which they relate, although it may be (as in R. v. Philips & Another) that the committal remains effective as regards one or more of several charges which have not been touched by the same defect. The present case is likewise quite different in character from such cases as Reg. v. Cockshott (1898) 1 Q.B. 582 and R. v. Kent Justices, ex parte Machin (1952) 1 All E.R. 1123 where - in each case - there had been a failure to inform the accused of his right to trial by jury, which, had he been apprised of it, might possibly have affected his decision to submit to summary trial. There is moreover in sub-section (3) of section 82 itself a positive indication that it was never in the mind of the legislature that failure to comply with this part of its provisions was to render a committal void of any effect. It is provided therein that the statement "taken down as aforesaid . may be given in evidence without further proof (emphasis supplied). This is the clearest indication that the sub-section is primarily concerned with the mechanics of proof. It leaves open the possibility that, if proof subject to its own prescriptions is wanting, proof might be supplied aliunde. There are some illuminating observations by Load Penzance in Howard v. Bodington [(1877) 2 P.D. 203 at p.210] which are of general utility in the face of objections of this nature and which are quoted with approval by Hope, J.A. in Australian case of Hatton v. Beaumont & Others (1977) N.S.W.L.R. 211 at 214. If allowance is made for a shift in terminology which equates what, in more recent times, has usually been referred to as a "mandatory" provision, with one which he describes as "imperative", his words are perhaps as fair a guide to a stable general principle in this area of the law as can be found. 'The real question in all these cases is this: A thing has been ordered by the legislature to be done. What is the consequence of it not done? In the case of statutes that are said to tie imperative, the Courts have decided that if it is not done the whole thing fails, and the proceedings that follow upon it are all void. On the other hand, when the Courts hold a provision to be mandatory or directory, they say that, although such provision may not have been complied with, the subsequent proceedings do not fail. Still, whatever the language, the idea is a perfectly distinct one. There may be many provisions in Acts of Parliament which, although they are not strictly obeyed, yet do not appear to the Court to be of that material importance to the subject matter to which they refer, as that the legislature could have intended that the non-observance of them should be followed by a total failure of the whole proceedings. On the other hand, there are some provisions in respect of which the Court would take an opposite view, and would feel that they are matters which must be strictly obeyed, otherwise the whole proceedings that subsequently follow must come to an end." We do not overlook the fact that sub-section 10 of section 81(A) of the Ordinance (introduced in 1978) expressly provides, that non-compliance with the provisions of that section (which deals with the admission of statements of witnesses in the shortened form of committal and of exhibits referred to in such statements) is not to render such things inadmissible provided the accused is not thereby prejudiced. Mr. Keane relies on the fact that no similar provision appears in section 82. We can find no validity in the argument that this in any way reinforces the idea that non compliance under s.82 will result in nullity. To the contrary, the saying in sub-section 10 of section 81(A) is as to admissibility only. The legislature evidently did not conceive that failure to comply would put anything more than that at risk. Mr. Keane, however, takes two further points on this question of nullity. Firstly, he says that the committing magistrate departed from the proper order of procedures set out in sections 82 and 83 in such a manner as to nullify the proceedings. The magistrate, having recorded the defendants statements in compliance with section 82(3) went on to inform them of their rights and obligations in relation to alibi evidence as provided in sub-sections 4 and 5 of that section. He then inquired whether they wished to give evidence and call witnesses as he was required to do under section 83(1). Mr. Keane points to the opening words of section 83 which require the magistrate to make the letter inquiry "immediately after complying with requirements of the preceding section relating to the statement of the accused." It is suggested that, although the opening words of sub section 4 of section 82 are "after sub-section 3 has been complied with...", the true intention of the legislature was that the alibi explanation should be delayed until the matter of the accused's evidence and his witnesses had been dealt with. The failure to follow this somewhat cryptically announced intention is said td have amounted to a fundamental frustration of it. Counsel, once again relying on the mandatory nature of this prescription, as he saw it, said that there was no need to show that prejudice arose from the failure to follow what he deems to be the proper sequence of these actions in the present case. He alleged, however, that there might be an element of prejudice in that a defendant might in some way feel inhibited from exerting his right to give evidence by first being warned about his duties in relation to alibi. On the whole, we think that the kindest thing to be said of these propositions is that they failed to convince. A final point taken by counsel for the 4th defendant and one which was the fruit of a late inspiration in the course of the appeal, was that since the magistrate is obliged to take the defendant's statement "in his own words as nearly as possible" as enjoined by Form 78 which appears in the magistrate's rules, this must mean in the defendant's own language. This would mean, in the great majority of cases in this territory, in Chinese characters. To the objection that this was unrealistic and impractical, and furthermore not in accordance with long standing procedure, he replied by pointing out sub-section 82(3) does not prescribe that the statement should be recorded by the magistrate himself. Unless and until the law is changed in this respect, the obligation, he says, is plain. He relies on the observations of Huggins, J., as he then was, in Reg. v. Lee ding kwan & Another (1973) H.K.L.R. at p 278 where the latter disapproved the practice of the police officer who had recorded in English a number of answers made in Chinese by a man suspected of having committed an offence. These, together with a statement subsequently written in Chinese by the suspect himself were thereafter read back to him. We need only say that we are in respectful agreement with that criticism, but that we cannot find in it any valid analogy, as between that practice and the established procedure of the courts in Hong Kong in which the official language is English and which are staffed with adequately qualified professional interpreters. We must trust both the interpreter and the magistrate, in every case, to discharge their separate functions properly in this regard. If that is done, then any statement so recorded may rightly be said to have been taken down "as nearly as possible in the very words" of the defendant. There remains to be considered only a point which, at first sight, may seem to be of considerably more substance than any of the foregoing. This is the second of the two points taken by Mr. kwong on behalf of the 1st defendant. It concerns what, upon the magistrate's record, appears to have happened after the final witness for the Crown - and the only witness to give oral evidence, Chu Kwok-cheung - had given his evidence, but before the Crown's case had been formall closed. There was a brief adjournment at that point and when the hearing was resumed, the 1st defendant said that he, wanted to call the 4th defendant as his witness. Although the record does not show it, it seems very likely that this was a spontaneous interjection on the part of the let defendant, the effect of which was to throw the proceedings somewhat out of kilter. Had he been adhering strictly to the order of procedures set out in s.82 and s.83, the magistrate ought no doubt at that point to have told the defendant that the moment for consideration of that request would come later, and the magistrate would then have gone on to comply with the provisions of s.82(1)(2)(3) and thereafter to inquire under s.83(1) whether the defendant wished to give evidence or call witnesses. Mr. Kwong, however, makes no point about the order in which the magistrate purported to deal with his obligations under these sections. His complaint stems from what is noted in the record as the magistrate's response to this sudden request. That is as follows: "D1 having stated that he wished to, call D4 as a witness, I have explained the position and Dl reserves his witnesses in the High Court." Subsequently, following his compliance with s.82 and the recording of what was said by the defendants in answer to the charge, the magistrate - presumably attending to the requirements of s.83(1) - asked all the defendants whether they wished to give evidence or call witnesses. The note then reads : "No. We shall reserve our defences-until we appear before the High Court." Once again, we have what appears to be a chorus, couched in oratio recta, which is no doubt a formalised reduction in writing, for the sake of convenience, of the actual words spoken by each defendant when addressed in turn. It is enlisted by Mr. Kwan in support of his objection to the entire procedure which had thus been briefly noted. What is said is - and this is how the matter was represented to the trial Judge that the 4th defendant was at that date prepared to give evidence which would have supported the 1st defendant's contention that he - the 1st defendant - had had nothing to do with the killing of "Tung Kwa" (the victim) and that he the 4th defendant was solely responsible for that. Since the magistrate had nowhere recorded precisely what he said to the 1st defendant when, pursuant to the latter's informing about his wish to call the 4th defendant, he "explained the position" to the 1st defendant, counsel says that we can only assume that the defendant was in effect dissuaded from calling his co-accused with the grievous result that, by the time the trial had advanced to the conclusion of the prosecution case, and perhaps even before it had commenced, the 4th defendant was no longer prepared to speak up and shoulder the blame on behalf of the other defendants, and there was nothing on the record to show that he had ever been prepared to do so. As earnest of the reality of what must seem - in view of the eventual and total discordance between the 1st and 4th defendants in giving evidence a remarkable altruism on the part of the 4th defendant, Mr. Kwong points to the statements made in answer to the charge by the 4th defendant and by his client at the committal. What the 1st defendant said is recorded as follows: "A lot of things have been framed against me in this matter. Whilst inside the house I and D-4 and Tung Kwa were talking together. Then D-4 and Tung Kwa mentioned one thing I knew nothing about it personally. They were arguing and it was said that murder, had been done in which D-4 was involved and in connection with a Station Sgt. who had passed away named Lee Chui Wing. I was there, I heard it. I then did not want them to talk about it as I did not want to know about it. A sum of money was mentioned to which they had not been able to collect. Later Tung Kwa was killed by D-4 in the dock. I had talked to D-2 and D-3 at the time about it." The 4th defendant,according to the record, said: "I reserve my rights to the High Court. I have no objection to what has been said by Deft. No. 1." Mr. Kwong relies on these words as a plain endorsement by the 4th defendant of the account of the event given by the 1st defendant. At the trial however, while he agreed that he had said the words recorded by the magistrate, the fourth defendant explained that what he had meant was that it was open to the 1st defendant to say anything that he liked and that it was not open to him to object to his doing so (see page 1221 of the transcript). The remainder of his evidence made it clear that he was not accepting blame of the killing of "Tung Kwa" and that he was ascribing responsibility for that to a quarrel which arose between the 1st defendant and the deceased. The 1st defendant told the jury that he had wanted to call the 4th defendant at the committal stage because, following a conversation which they had had on the second day of the committal proceedings, (page 800 of the transcript) the 4th defendant had " promised me he would reveal the truth." The truth, according to his evidence, was that the 4th defendant had quarreled with Tung Kwa over some previous criminal arrangement concerning the killing of another police officer and that this had led to a fight resulting in Tang Kwa's death in which he, the 1st defendant, had had no part. In ruling on this matter, the trial Judge noted what had been said by Mr. Alderdice, who represent the Crown at the committal as well as at the trial, concerning what had occurred when the 1st defendant announced that he intended to call the 4th defendant. The Judge then went on as follows: " He; is quite clear, as one would expect, that what the magistrate did was to explain to the 1st accused the possible dangers about giving evidence or calling witnesses at that particular stage of the proceedings. And I think it is common knowledge that magistrates commonly say that sort of thing to any defendant who looks like wanting to give evidence at the committal proceedings. As we all know, a defendant who gives evidence at committal proceedings often makes an unsworn statement, thus tying himself down when he comes to defending himself at the trial, and it is the practice for magistrates to warn of that to the defendant. Indeed, the magistrates are encouraged to do so. I am quite satisfied that that is what happened here and that in the end the 1st accused decided that he would not call the 4th accused but would make a short statement, which he did. And I don't think that anything which occurred at the committal proceedings in this regard in any way invalidates those proceedings." (page 48 transcript). Mr. Kwong says that there is a narrow line dividing the area of sensible and helpful advice given by a magistrate to an unrepresented defendant from the dangerous ground wherein such advice may do irreparable damage to a defendant's case. He asks us to say that however well intended the magistrate's advice in the present case the precise nature of which we do not know - it must have been of such a character, that it persuaded the defendant to abandon a course which was not only of vital importance to him but must have been perceived by him as such. The very fact that we do not know exactly what was said is, counsel maintains, sufficient to invalidate the committal as regards his client. He relies upon Reg. v. Hendry XXV T.L.R. 635 in which the Court of Criminal Appeal in 1909 allowed an appeal from a conviction at quarter sessions where it appeared that at the magistrates hearing of the case two defence witnesses had been informed that they were not wanted, and they had gone away and had not given evidence. The brief report represents this action of the magistrates to be the result of a misunderstanding. Nevertheless the Appellate Court commented in these terms: "It was a most unfortunate thing that in the country, and perhaps also in London, magistrates seemed to discourage prisoners from calling their witnesses when the case was before them." Obiter dicta which are considerably nearer the mark in time, locality and factual relevance are to be found in Ho Siu-fei & Others v. R. (1976) H.K.L.R. 190. In that case, an alleged failure to comply with the provisions of s.81(A) of the Magistrates Ordinance was considered by the Court of Appeal on a reference under s.81 of the Criminal Procedure Ordinance. A week after the trial had commenced, counsel for the defendants challenged the validity of the committals on the ground that certain police officers should have been called to give oral evidence, notwithstanding that their statements, relating to certain alleged confessions of the defendants, had gone in unchallenged. The reason given was that the defendants on being asked by the magistrate whether they agreed that those statements were voluntary, replied that they were not. Huggins, J.A. giving the judgment of the court rejected this contention, pointing out that once the police officer's statements had gone in without challenge, there was an implied acceptance by the defendants, for the purposes of the preliminary inquiry, that they were voluntary so that it would have been improper for the court to, allow them to give evidence which was inconsistent with the statements of the police officers. Having referred to the fact that it is common practice for defendants to reserve their objections to the admissibility of evidence until the trial, he went on to say: "We were in fact told that some magistrates advised unrepresented defendants to reserve their objections until the trial. Speaking here entirely for myself I doubt the propriety of such gratuitous advice, although it would not be improper to inform an unrepresented defendant of the possible courses open to him in respect of an alleged confessions." It would have been preferable in the instant case for the magistrate to have recorded a fuller note of what he said to the 1st defendant when he was faced with this sudden request. Nevertheless, we think that the trial Judge, his opinion fortified by the explanation given to him by counsel for the Crown, was justified in coming to the conclusion that the magistrate did no more than to apprise the 1st defendant of his rights and the possible disadvantages of exerting them at that stage. The fact that this was done prematurely is immaterial and was a consequence of the premature request by the defendant. It would of course be quite wrong for a magistrate to resort to any form of persuasion whenever, the defendant evinced a clear desire to call a witness at the committal. In their own interests it is always advisable for magistrates to make a full record of any exchanges touching the matter so that it may be apparent from the record that the defendant's choice was not unduly influenced by anything said to him so that he surrendered a right which he had a genuine wish to exert. If we had entertained any real doubt as to what occurred, had are thought it possible that the defendant had been unjustly deprived of the benefit of testimony which might at a later stage have been deployed in his favour, we would certainly have been compelled to question the validity of his committal. In the end we are not persuaded that there is any more merit in this than in any of the other objections taken by counsel. We are not prepared to speculate upon the contents of the magistrate's record to the extent of inferring that in "explaining the position" to the defendants he may nave dissuaded the fourth defendant from giving evidence in favour of the firsts. We are satisfied that the trial Judge rightly concluded that the first defendant freely decided not to call his co-defendant at that stage. Representation: Jimmy Kwong (D.L.A.) assigned for 1st Appellant. Desmond Keane, Q.C, and Bey Mutyzade (D.L.A.) assigned for 2nd Appellant. David Sparrow (D.L.A.) assigned for 3rd Appellant. Gary Alderdice for Respondent/Crown. PAGE PAGE - - &`#$ CACC000134/1983 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR cccc CACC000134/1983 Title Microsoft Word Document MSWordDoc Word.Document.8 CACC000134/1983 Normal.dot Judiciary Hong Kong SAR Microsoft Word 9.0 Judiciary Hong Kong SAR CACC000134/1983 Title Judiciary Hong Kong SAR