HKSAR v. Wong Kwong Wai

HCMA 118/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 118 OF 2017

(ON APPEAL FROM WKS 1124/2017)

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REASONS FOR JUDGMENT

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1.The appellant had pleaded guilty to a summons laid against him that on 4 November 2016 at 5:30pm, he did allow to fall crushed stones from a building at Flat 1, 2/F, Block A, Wo Yi Hop Road, Yee Fat Building, Kwai Chung to the danger of a person in or near a public place namely Back Alleys, Block A, Wo Yi Hop Road, Yee Fat Building, Kwai Chung. The appellant was fined HK$3,000.00. He appealed against his sentence.

2.It became apparent to both counsel for the respondent and this court that there were no facts of the case upon which the summons was laid.  And more importantly there were no facts or brief facts upon which the learned magistrate could have assessed the severity or otherwise of the offence in considering what sentence to impose upon the appellant.  Counsel for the respondent Ms Chan was informed by the officer‑in‑charge of the case that this was a regular practice as far as she knew in the magistrate’s court.  But subsequently Ms Chan had confirmed in a written letter to this court that that was not the case as I had queried why this practice had been allowed.

3.This charge based upon only the particulars in the charge would not have allowed the magistrate to give a proper assessment as to sentence.  The reason being there are a wide variety of circumstances in which this offence could have been committed, for example, it could have been a stone falling because the appellant was doing repairs outside of his home and was careless or it could have been a stone which had fallen due to disrepair etc. It is therefore incumbent upon the prosecution to supply the court with brief facts as to where the stone fell from, in what circumstances, and was it due to the appellant’s negligence or did the incident happen due to a lack of supervision or care.  Also of particular importance was the size of the stone and whether it had fallen from the balcony of the appellant’s apartment, the window or the wall etc.

4.Hence, it is of the utmost importance that this absence of brief facts is an isolated incident and hopefully both the prosecution, the police and the court will be vigilant to stop this from happening again.

5.In the circumstances I allowed the appellant to appeal against his conviction out of time and set aside his conviction due to the absence of facts upon which to base his conviction.  His sentence was also set aside.

Miss Chan Sze Yan SPP (Ag), of the Department of Justice, for the respondent

The appellant appeared in person