HKSAR v. Tsui Tack Kong and Others

HCMA 289/2018

[2020] HKCFI 1911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 289 OF 2018

(ON APPEAL FROM ESS NOS 39227‑39230 OF 2015)

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Before:  Hon Campbell-Moffat J in Court

Dates of Written Submissions: 2 April and 1 June 2020 (1^st and 2^nd applicants); 6 April and 1 June 2020 (3^rd and 4^th applicants); 4 May 2020 (respondent)

Date of Judgment:  7 August 2020

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J U D G M E N T

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1.This is an application by the 1^st to 4^th Applicants pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) for the following question (“the Question”) to be certified as a point of law of great and general importance arising out of the Judgment of this Court dated 2 December 2019:

“In an appeal under s 113 of the Magistrates Ordinance, Cap 227, in the context of the appeal being by way of rehearing, to what extent should a judge consider material errors submitted to have been made by the trial magistrate?”

The application was dealt with on the papers.

Background

2.The trial concerned an accident upon a construction site.  It lasted 29 days, heard evidence from four expert witnesses and took into account several specialist reports upon which the expert witnesses relied.  The appeal bundle ran to over 12,000 pages and the Grounds of Appeal ran to 17 pages.  The appeal took place over some four days.  The Applicants were represented by leading counsel.  In order to do justice to the Applicants’ cases, the Court had to master the arguments below about which this Court commented[1]:

“There were a significant number of areas of dispute between the parties during trial, some of which advanced none of the party’s cases but took up a considerable amount of court time and intellectual energy.”

3.The appeal followed a similar pattern.  The Grounds of Appeal were no less voluminous (and repetitive) given that the actual argument before the Court, which was on the facts alone, was that the defence expert evidence should not have been rejected and the prosecution expert evidence should not have been accepted, with Ms Wong, on behalf of the 3^rd and 4^th Applicants, advancing an enhanced defence case, not previously put to the Magistrate.  The view of the Court, after consideration of the evidence and of the submissions thereon, was provided at §52-64 of the Judgment.  Importantly, the Court said[2]:

“There were a number of hypotheses from all four gentlemen, many of which were ruled out on the facts by the experts themselves or by other experts; some of which were still relied upon by the defence on appeal but which could not be maintained if the defence case in respect of KK Pang was correct. Nothing will be served by explaining that in detail here. They were rightly rejected.” [Emphasis added]

4.The 3^rd and 4^th Applicants take issue with the fact that the phrase “without merits” or “not reasonably arguable”, have not been expressly relied upon within the Judgment.  With respect, this was implicit within the tenor of the Judgment when read as a whole.  The Court does not see how a phrase such as “They were rightly rejected”, can be misconstrued as anything other than without merit.  If that were not enough, the Court went on to say:

“The magistrate listened very carefully to them all and was at pains to ensure that he had understood each theory and its premise. It was not necessary for him, in rejecting any one (or several) of them to explain his reasoning in detail in his Statement of Findings. The magistrate made it clear that whilst he accepted some of the evidence of three of the expert witnesses, he had chosen to rely upon the opinion of KK Pang. It was open to him to do so, as it is for this Court.”

and:

“This Court notes that the appellants’ argument often relied upon the phraseology of the magistrate in his Statement of Findings which, upon closer inspection of the transcript, was not made out when taken in context of the whole of the evidence given and the discourse between witnesses, bench and bar, which is the inevitable consequence of cases involving expert witnesses.”

5.Rogers VP in Chong Wai Lee Charles & Anor v Insider Dealing Tribunal & Anor CACV 96/2007 (10 February 2010) at §41, reiterated that “it is not the duty of a court or tribunal necessarily to mention each and every argument that is considered, particularly if it concluded them to be without merit.  Some arguments are so unmeritorious that it is better that they are left unmentioned”.  In this case, it may be that other arguments were tangential to the issues to be decided and/or were not determinative.  It cannot be said that simply because some criticism can be laid at the door of a tribunal that it necessarily follows that such criticism amounts to a material irregularity and is therefore determinative of an appeal. There was no finding by this Court on appeal upon a central issue which was in essence any different from that of the Magistrate.  The fact that this Court may have come to the same conclusions by a different route does not necessarily indicate that the Magistrate was wrong in reaching the conclusions in the manner in which he did. The Court considered the matter afresh.  It did not find, as submitted by the 3^rd and 4^th Applicants, that “the Magistrate should not have made those findings in the way that he did” and it is wrong to suggest that it did.  Indeed, the Court went to some lengths not to do so and was at pains to commend the Magistrate where appropriate e.g.

“The magistrate went to some lengths to give due credit to the expertise of all four expert witnesses[3]”

“The magistrate listened very carefully to them all and was at pains to ensure that he had understood each theory and its premise. It was not necessary for him, in rejecting any one (or several) of them to explain his reasoning in detail in his Statement of Findings. The magistrate made it clear that whilst he accepted some of the evidence of three of the expert witnesses, he had chosen to rely upon the opinion of KK Pang[4].”

“In this case, the magistrate rejected the opinion evidence of both defence experts and, to some extent, also that of Dr Li. He did so after a considerable period of time listening to them and seeking clarification, which at times he did not receive[5].”

“On more than one occasion, the magistrate remarked upon their expertise in a positive manner and expressly relied upon it[6]”.

6.The Court specifically found that it was not necessary to come to any finding on exactly how the inflow of water occurred or how it entered the site nor whether there was a conspiracy between the Applicants.  The fact that the Magistrate may have done so, does not avail the Applicants.  The top and bottom of the Court’s findings on appeal was that no part of their grounds were found meritorious.

Certification

7.This was an appeal wholly upon the facts.  The Question posed by the Applicants is one of law and procedure.  It has been answered in the clearest of terms by McWalters J (as he then was) in HKSAR v Ip Chin Kei [2012] 4 HKLRD 383:

“60.     However because the focus of the rehearing is the appellate court’s view of the law and the evidence, the finding of an error by the Magistrate should not necessarily result in the appeal being allowed.  I say this because the duty of the Court is not to determine whether error has been made and if so what the consequence of such error should be, as in an appeal in the strict sense, but rather whether any error that has been identified prevents the appeal court from performing its statutory duty of conducting a rehearing.  If it can conduct a rehearing then it should do so.  If it cannot then it should allow the appeal, making such order or orders as seem to it, in the circumstances, to be just.  Likewise even if no error has been identified and no ground of appeal made out that is not the end of the matter.  The duty is on the appellate court to conduct a rehearing and that is what it must do for its ultimate duty is to determine whether it is satisfied beyond reasonable doubt of the guilt of the appellant.  Responding to the grounds of appeal is only an intermediate step in that process.”

8.This Court found no error on the facts, conducted a rehearing and found the conviction upheld for the reasons given.  There is no merit in the application.  It is dismissed.

9.Accordingly, the costs of this application are to be borne in equal shares between the 1^st to 4^th Applicants to be taxed if not agreed.

Ms Alice Chan DDPP(Ag) and Mr Pierre Lui SPP, of the Department of Justice, for the respondent

Mr Peter Duncan SC and Mr Calvin Cheuk, instructed by MinterEllison LLP, for the 1^st and 2^nd applicants

Ms Maggie Wong SC, Mr Eric Chung and Mr Lawrence Pang, instructed by Deacons, for the 3^rd and 4^th applicants