In the recent case of HKSAR v Leung Chun Kit Brandon, [2018] HKCFA 30, 4 July 2018, the Court of Final Appeal has clarified that the rule excluding the prosecution’s right of reply, where a defendant is unrepresented and who gives evidence himself but does not call any witness, applies to criminal trials in the Magistrates’ Court.

It is now clear that the same rule applies to criminal trials, irrespective of the level of the Court.

Background

The appellant was charged with an offence contrary to s.35J(5)(b) of the Personal Data Privacy Ordinance (Cap 486) in that he, being a data user, provided the personal data of an individual to a third party called Ms Tam for use in direct marketing without obtaining consent before doing so.

At the trial in 2015, the appellant was unrepresented. He testified on his own behalf and he did not call any witness. At the conclusion of all the evidence, counsel for the prosecution made closing submissions which covered legal and factual submissions in relation to the appellant and Ms Tam. The appellant raised the issue whether the prosecution was entitled to do so. The Magistrate ruled that the prosecution was entitled to do so. The appellant was convicted.

The appellant appealed against his conviction and his appeal was dismissed in 2017. The appellant then appealed to the Court of Final Appeal and the appeal was heard in June 2018.

Questions of Law

The questions of law at the final appeal were framed as follows:

In the trial of a criminal case in the magistracy, where an unrepresented defendant, apart from giving evidence himself, has not called any witness (hereinafter referred to as “the specific circumstances”):

(a) Does the prosecution have the right to make a closing speech under section 19(2) of the Magistrates Ordinance (Cap 227)?

(b) Is R v Au-yeung Tat-shing and another ([1988] 1 HKLR 1) a correct interpretation of section 19(2) of the Magistracy Ordinance (Cap 227)?

(c) If the answer to both (a) and (b) are “yes”, then is the unrepresented defendant’s constitutional right to have a just and fair trial infringed by the prosecution’s right under section 19(2) of the Magistrates Ordinance to make a closing speech in “the specific circumstances”?

(d) If the answer to (c) is “yes”, is such infringement justified?

The Court of Final Appeal’s Decision

The rule limiting the prosecution’s right of reply in criminal trials in a case of an unrepresented defendant who has only given evidence himself but did not call any witness has been well-established in Hong Kong. Section 56 of the Criminal Procedure Ordinance (Cap 221) which is headed “Right of Reply” preserves this rule and provides as follows: “(1) The fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.

In R v Au-yeung Tat-shing and another [1988] 1 HKLR 1, it was held by the Court of Appeal that section 19 of the Magistrates Ordinance (Cap 227) permits the prosecution to have a right of reply in the case of an unrepresented defendant because of the general terms in that section.

Section 19(2) of the Magistrates Ordinance (Cap 227) provides as follows:

The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.” (Emphasis underlined)

The Court of Final Appeal looked at the history of the development of the rule in England. It is common ground that, generally, the rule excluding the prosecution’s right of reply in a criminal trial has been followed in Hong Kong where an unrepresented defendant, apart from giving evidence himself, has not called any witness, except, as mentioned above, in the decision of Au-yeung where it was held that section 19(2) gives each party the right to make a closing speech and such right was not limited to cases of represented defendants or to cases where an unrepresented defendant gives evidence himself and calls witnesses as to facts.

The Court of Final Appeal was of the view that the rule is well-established and one should be slow to interpret the imprecise wording in section 19 as constituting a fundamental change to the rule. There were also a series of hard-edged and unambiguous statutory provisions which specifically restricted the prosecution’s right of reply in the history of the rule, but there was no such specific terminology in section 19 doing so. More importantly, if the construction of section 19 in the decision of Au-yeung were correct, it would mean that the prosecution enjoyed a right of reply in the magistracy when such right was not available in the higher courts, notwithstanding the probability that more defendants are unrepresented in the magistracy. More specific wording would be required to achieve that effect.

The Court of Final Appeal concluded that section 19 does not address the rights of reply and does not confer a right of reply upon the prosecution in a case where a defendant is unrepresented and who only gives evidence himself but does not call any witness. The decision in Au-yeung is wrong. Accordingly, the answers to questions (a) and (b) above are “no”, and it was not necessary for the Court to consider questions (c) and (d).

Finally, in this case, although the appellant had succeeded in demonstrating a procedural error by the magistrate and the judge in holding that the prosecution enjoyed a right of reply, he had not shown that the error had affected the fairness of the process as a whole.

The appeal was dismissed.