HKSAR v. Lo Kin Sun (盧建新)

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Press Summary (Chinese)

FACC No. 2 of 2020

[2021] HKCFA 1

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2020 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 583 OF 2017)

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BETWEEN

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Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Lord Neuberger of Abbotsbury NPJ

Date of Hearing: 4 January 2021

Date of Judgment: 4 January 2021

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REASONS FOR JUDGMENT

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Chief Justice Ma:

1.For the reasons contained in the judgment of Mr Justice Fok PJ, with which I agree, the appeal was allowed with disbursements awarded to the appellant in the sum of $12,538.50.

Mr Justice Ribeiro PJ:

2.I agree with the Reasons for Judgment provided by Mr Justice Fok PJ.

Mr Justice Fok PJ:

3.The appellant was convicted, after trial before a magistrate,[1] of one charge of common assault contrary to section 40 of the Offences Against the Person Ordinance (Cap.212), for which he was sentenced to four weeks’ imprisonment, suspended for 18 months.  His conviction was upheld on appeal to the Court of First Instance.[2]

4.The Appeal Committee granted leave to appeal to this Court on the ground that it was reasonably arguable that there had been a substantial and grave injustice in that the conduct of the trial and the treatment of the evidence might have miscarried so that the appellant was denied a fair trial.[3]

5.After hearing the parties, the Court allowed the appeal, quashed the appellant’s conviction and ordered the respondent to pay the appellant his disbursements incurred before the Deputy Judge and before this Court,[4] indicating that the reasons for doing so would be handed down at a later date.  These are my reasons for making those orders.

A.      The trial and intermediate appeal

6.The case in the magistracy was a simple one.  The appellant was a chef who operated a restaurant in Tai Po.  He was accused of assaulting an inspector of the Environmental Protection Department (“EPD”) by punching him in the face.  The EPD inspector, who gave evidence as PW1 at trial, had visited the appellant’s restaurant premises in the early evening of 3 March 2017 together with his supervisor, who gave evidence as PW2 at trial.  Their visit was in the course of their duties to follow up on a notice issued by the EPD requiring the installation of an electrostatic precipitator (i.e. an air filter) to reduce the greasy fumes emitted by the restaurant’s kitchen.  It was the prosecution case that the appellant, coming out of the kitchen and recognising PW1, was angered by his presence and punched him on the nose.  The following evening, PW1 went to the Accident and Emergency Department of the Tseung Kwan O Hospital, where he was examined and his nose was found to be swollen.

7.The appellant was unrepresented at trial.  He elected to give evidence but called no other witnesses to testify.  He denied that he came out of the kitchen to confront the EPD officers at all or that the assault occurred as alleged and suggested that the EPD officers had concocted their evidence of the assault.

8.The magistrate accepted the evidence of the two EPD officers, PW1 and PW2, and disbelieved the appellant.  She found that the appellant struck PW1 with his right fist once on the bridge of the nose causing pain, redness and swelling.  She accordingly convicted the appellant.

9.On intermediate appeal to the Court of First Instance, the appellant, now represented, advanced four grounds of appeal, which included those for which leave to appeal to this Court was granted.  The Deputy Judge dismissed the appeal and upheld the appellant’s conviction.[5]

B.      The accepted norms relevant to this appeal

10.The arguments in the parties’ written cases have focused on the question of the conduct of the trial and the treatment of the evidence, those being the bases on which the Appeal Committee considered it was reasonably arguable that the appellant was denied a fair trial.

11.How a trial is conducted fairly and the evidence properly treated, being relevant to the way issues of fact are resolved at trial, are both fundamentally important aspects of the criminal justice system.  As this Court has previously explained, in Ko Man Chun v HKSAR:[6]

“Most criminal cases in Hong Kong are tried in the Magistrates’ Court. The issues at such trials are generally of fact rather than of law. Where (as quite often happens) there is an appeal to a single judge of the High Court, the issues are still generally of fact. In practical terms, therefore, one of the most important aspects of our criminal justice system is how issues of fact are resolved in the Magistrates’ Court and then on appeal therefrom to a single judge of the High Court. As to this, the accepted norms include these. The issues of fact must of course be approached with due care. And the conclusions thereon must be expressed in terms indicative of such care. This is not to say that lengthy reasons are always or even generally required. It depends on the circumstances.”

12.A number of accepted norms concerning the conduct of a trial, in particular where a defendant is unrepresented, apply and are relevant here.  Since the appellant in this case was unrepresented at trial, it was incumbent on the magistrate to assist him in the conduct of his defence.  This is by no means an easy task, as Barnes J correctly observed in HKSAR v Chan Shu Hung:[7]

“A magistrate is faced with an arduous task when he is dealing with an unrepresented defendant. The Magistrate must remain neutral but must also provide appropriate assistance to the defendant. Most likely a defendant has no legal knowledge. When he cross-examines a witness, he may ‘make statements’ instead of ‘asking questions’. The Magistrate should be patient and try to understand as much as possible what the defendant wants to say, and then translate the statements made by the defendant into questions and put them to the witnesses concerned.”

13.In particular, the conduct of the cross-examination of a prosecution witness may give rise to difficulties since the unrepresented defendant may be imprecise or inarticulate in expressing his case and how he wishes to dispute the prosecution evidence. In this regard, in The Queen v Chan Chun Kit,[8] Fuad VP provided helpful advice as to how a magistrate should properly assist an unrepresented defendant in this task, in the following terms:

“I think I can do no better than to set out what Sir Alison Russell had to say (at pp.64-65) in the Second Edition of his work ‘The Magistrate’ which has been a source of wise counsel to lay and professional magistrates ever since it first appeared:

‘Question put to witness on behalf of accused.

The following matter arises when the accused is [unrepresented]: it makes demands on the utmost skill and patience of the magistrate -

(1) …

(2) …

(3) …

(4) …

(5) …

(6) …

(7) it can only be suggested that the magistrate should listen and do his best to find out what the question is that is implied by what the accused is saying, and then formulate that question, ask the accused whether that is the question he wishes to ask the witness, and, if the accused says that it is the question, then the magistrate should put it to the witness.

(8) …

(9)  what the accused says for this purpose should not be recorded except in the form of relevant questions to the witness put by the magistrate on behalf of the accused, since it is really ‘cross-examination in the rough’ which is frequently elicited from the accused by questions put to him by the magistrate and so cannot properly be regarded as a ‘statement’ by the accused.’”

14.Regardless of the difficulty, it is incumbent on the magistrate to conduct the trial fairly and impartially and he must not lose the appearance of neutrality in the dispute. The principle was stated by Bokhary PJ, writing for the Appeal Committee, in HKSAR v Leung Kwok Hung:[9]

“… In a criminal case tried by a judge without a jury or by a magistrate, if the judge or magistrate’s conduct of the trial has lost him the appearance of impartiality, the question, at least in general, is whether there is a real danger, as opposed to a merely fanciful one, that his conduct had actually influenced his decision adverse to the defendant so as to have deprived the defendant of a fair trial. A real danger of that is a basis for quashing the conviction or convictions concerned and, at least in general, the same should then be quashed.”

15.In addition to these norms relating to the conduct of the trial, it is also incumbent on a magistrate to address and explain material inconsistencies in the evidence of prosecution witnesses: see the helpful summary of citations provided by Nguyen J in support of this trite proposition in HKSAR v Lo Cheuk Him.[10]

C.      Was the appellant denied a fair trial?

16.The issue for the Court on this appeal was whether it was “shown that there has been to the appellant’s disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice”: So Yiu Fung v HKSAR.[11]

17.For the following reasons, I conclude that there was such a departure from the accepted norms set out in Section B above that the appellant was denied a fair trial, so that his conviction was unsafe and unsatisfactory and should therefore be quashed.

18.This was a straight forward case in which either the prosecution case that there had been an assault was accepted or the defence case that the assault never took place and was concocted was accepted.  The credibility and reliability of the evidence of the protagonists were crucial matters for the magistrate to weigh and consider in resolving this simple issue of fact.

19.In their testimony at trial, there were a number of discrepancies in the evidence of PW1 and PW2.[12] In particular:

(1)  PW1 testified that the appellant came out of the kitchen twice before the alleged assault, whereas PW2 testified that he only came out once.

(2)  PW1 testified that PW2 told the appellant the purpose of their visit when the appellant came out of the kitchen the first time at which point the appellant scolded them and swung a frying spatula in his right hand in front of PW1 before going back into the kitchen.  PW2, however, testified that the appellant punched PW1 before he had a chance to reveal his identity.

(3)  PW1 testified that he was taking photographs when the appellant walked out of the kitchen to punch him, whereas PW2 testified that the appellant punched PW1 when he was holding a camera but had not yet started shooting.

(4)  PW1 testified that, before the appellant punched him, the appellant used his body to push PW1 away and that, after punching him, the appellant wrenched off PW1’s warrant card, which was hanging around PW1’s neck, with his hand.  PW2 did not mention these details.

20.The magistrate did not address these differences in the evidence in her Statement of Findings, stating (at [34]) in relation to PW1’s testimony, “I notice that his evidence and PW2’s is consistent without discrepancies.”  For his part, in respect of the discrepancies identified in the previous paragraph, the Deputy Judge described these (in the CFI Judgment at [33]) as “precisely the comforting crumbs in the wording of Stock J, which are insufficient to lead the magistrate to doubt their credibility or reliability.”

21.The reference by the Deputy Judge to “comforting crumbs” is likely a reference to the judgment of Stock J (as he then was) in The Queen v Kwong Wing On and Another, where he cautioned:[13]

“… that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omissions will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

22.Whether the discrepancies in the prosecution evidence to which the appellant points are material discrepancies that the magistrate was duty bound to deal with or peripheral factual issues which she did not need to resolve is clearly arguable.  The evidence of two witnesses may differ in some respects but still be inherently accurate and true as to the central issue of fact that needs to be proved.  As regards such inconsistencies, Stock VP rightly observed in HKSAR v Okafor [2012] 1 HKLRD 1041 at [33(3)] that:

“… Whilst inconsistencies may be of the kind that truly affect reliability, inconsistencies should be approached realistically recognising that some inconsistencies are, with the passage of time, inevitable; some are more apparent than real especially when one remembers that witnesses when testifying are often apt to use loose language; sometimes the questions to which answers are given are obscure or double-barrelled; sometimes the witness is merely confused; although, of course, there are occasions when an inconsistency is such that the evidence should not be relied upon. The reliability of a witness's testimony is more often truly tested by inherent probabilities and improbabilities, a direction of cross-examination which is too seldom utilised precisely because it is too often considered that establishing an inconsistency is the be-all and end-all of cross-examination.”

23.Notwithstanding those observations, the fact remains that the appellant’s only defence was an outright denial of the prosecution evidence and an accusation that the prosecution witnesses were lying about the assault.  It was therefore clearly relevant to that defence that inconsistencies in the evidence of PW1 and PW2 should be put to them to test the reliability of their recollection of events and their credibility.  Although, if the appellant had been represented, a failure to put these matters to the prosecution witnesses would not necessarily have cast doubt on the safety of a conviction, in this case, the magistrate, being bound to assist the appellant as an unrepresented defendant, should fairly have put these matters to the prosecution witnesses and, to that extent, to determine if these were in fact material inconsistencies that might undermine the prosecution evidence.

24.Instead of putting these inconsistencies to the prosecution witnesses, though, (recalling PW1 after the testimony of PW2, as necessary) the magistrate’s assistance to the appellant in their cross-examination, in particular that of PW1, was lacklustre to say the least.  Granted the appellant was not clear in his version of events, and the magistrate had to clarify this but, as was pointed out in the Printed Case for the Appellant,[14] in the course of the cross-examination of PW1, the magistrate asked only 10 questions of the witness but asked 60 questions of the appellant. 

25.Whether the extent of the magistrate’s interventions crossed the line of impartiality is a matter of impression and the number of interruptions by a judge in the course of testimony cannot be decisive: see The Queen v Yeung Mau-lam;[15] HKSAR v Tam Chi Hang;[16] and HKSAR v Lai Oi Yan.[17]  However, a consideration of the transcript as a whole, in particular the tenor as well as the number of questions put to him, leaves the distinct impression the magistrate was using the exercise of clarifying what the appellant wanted to put to PW1 and PW2 as an opportunity to challenge the reliability and credibility of his own version of events rather that of the prosecution witnesses.  Some of the questions demonstrated that the magistrate was openly sceptical of what the appellant was saying and she appears to have proceeded in effect to cross-examine the appellant, occasionally in a hostile manner.

26.On appeal, the Deputy Judge was unimpressed with the appellant’s grounds of appeal that the magistrate had failed to assist him as an unrepresented defendant when cross-examining the prosecution witnesses and that the magistrate failed to adopt an attitude of impartiality when examining the evidence.  In respect of the former ground of appeal, the Deputy Judge simply held:

“I have read the transcript referred to by Mr. Cheung. Apparently, the appellant was incapable of cross-examining the prosecution witnesses by himself. Therefore, the magistrate must first understand the appellant’s stance before assisting him in putting the defence case to the witnesses. I disagree with Mr. Cheung’s view. The magistrate was not cross-examining the appellant, nor was she intervening his cross-examination. The magistrate’s approach did not prejudice the appellant.”[18]

And in respect of the latter ground, the Deputy Judge held:

“As regards Ground of appeal 4, I have read the relevant parts of the trial transcript. In my judgment, the allegations are not made out and they are unfair to the magistrate. I agree with the analysis and arguments made by Mr. Lau that the magistrate was only clarifying and confirming the appellant’s stance. The magistrate’s approach is proper.”[19]

27.Contrary to those conclusions, the transcript shows that the magistrate’s assistance to the appellant in the conduct of the cross-examination of the prosecution witnesses did prejudice him since she did not put the various inconsistencies in their evidence to those witnesses.  In the context of this case, that omission was substantially to the appellant’s disadvantage.  Similarly, even if it was arguable that the magistrate erred in failing to address or resolve the inconsistencies between the evidence of PW1 and PW2, the magistrate proceeded on the erroneous basis that PW1’s and PW2’s evidence was mutually consistent when in fact there were significant inconsistencies in that evidence.  Furthermore, the appearance of a fair trial was put in doubt by the magistrate’s conduct of the questioning of the appellant when she was assisting him to cross-examine the prosecution witnesses, in particular PW1.

D.      Conclusion and disposition

28.For these reasons, I conclude that the appellant was denied a fair trial and that his appeal must be allowed, his conviction for assault quashed and his disbursements (in the agreed sum) be paid to him by the respondent.

Mr Justice Cheung PJ:

29.I agree with the Reasons for Judgment provided by Mr Justice Fok PJ.

Lord Neuberger of Abbotsbury NPJ:

30.I agree with the Reasons for Judgment provided by Mr Justice Fok PJ.

Mr Eric TM Cheung, Solicitor Advocate and Mr Carter Chim, instructed by ONC Lawyers, on a pro bono basis, for the Appellant

Mr Derek Lau SPP, of the Department of Justice, for the Respondent