HKSAR v. Shu Man

HCMA 390/2022, [2023] HKCFI 1537

In the matter of [2023] HKCFI 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 390 OF 2022

(ON APPEAL FROM STCC 3448 OF 2018)

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REASONS FOR DECISION

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Introduction

1.By a Notice of Motion dated 5 June 2023, the Applicant applied under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 for a certificate to certify that a point of law of great and general importance was involved in my decision given on 2 June 2023, namely:  

“In the hearing of an appeal under section 113 of the Magistrates Ordinance, Cap 227, Laws of Hong Kong, can the judge in exercise of rehearing on the evidence before the trial Magistrate affirm the conviction on a basis which had not been canvassed before the trial Magistrate?”

2.At the conclusion of the hearing I acceded to the application of the Applicant and certified that a point of law of great and general importance is involved in my decision.

3.Whilst I did give brief reasons during the hearing, at the request of the Applicant, I now give my reasons in writing.

Submission by the Applicant

4.Mr Eric Kwok, SC for the Applicant accepts that it is settled law that an appeal under section 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.

5.The Applicant’s argument was that since the trial magistrate did not rely on the two photographs for the application of entry VISA (“VISA photographs”) in the Republica De Guatemala passport (P7) and the People’s of Republic China passport (P1), by comparing the said VISA photographs on appeal, this Court had stepped into the shoes of the magistrate and convicted the Applicant on a basis not urged upon by the prosecution at the time of trial. Mr Kwok submitted that this Court on appeal is not empowered to do so.

6.Mr Kwok prayed in aid the cases of HKSAR v TAGAO SAUDEE ABAD [1](an appeal from the District Court to the Court of Appeal), and HKSAR v Man Fan Wah [2](a magistracy appeal) to support his submission that by relying on the VISA photographs during the re-hearing and confirmed the conviction, the Applicant was deprived of an opportunity to deal with that issue, resulting in a procedural irregularity which was unfair to the Applicant.

Submission by the Respondent

7.Counsel for the Respondent, Mr Jones Tsui, Senior Public Prosecutor and Ms Alison Chow, Public Prosecutor, opposed the application.

8.The respondent relied on the judgment of Bokhary PJ in Lee Kin Pong v HKSAR [3]and submitted that the point of law raised is not reasonably arguable.  

9.The Respondent also relied on the case of So Yiu Fung v HKSAR [4], and submitted the question posed does not meet the criteria of “real controversy on points of law of great and general importance” as the law is settled in both cases of Chou Shih Bin v HKSAR [5] and HKSAR v Ip Chin Kei [6].

10.The Respondent submitted that an appellate court can in the exercise of rehearing on the evidence before the trial magistrate to affirm the conviction on a basis which had not been canvassed before the trial magistrate.

My consideration of the submission

11.It is indeed settled law that an appeal under section 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so.

12.The question raised is how far can a Judge go in a magistracy appeal by way of re-hearing?

13.For the purpose of my decision, there is no need to refer to the two cases relied upon by the Applicant.

14.No doubt the VISA photographs were in the Appeal Bundle. It was also a fact that the prosecution had never invited the magistrate to look at the VISA photographs, let alone relied on them; and the magistrate did not mention the VISA photographs at all in his Statement of Findings. It was only during the appeal that the Respondent invited this Court to consider the VISA photographs.

15.Unlike live witnesses, to whom the magistrate, as a fact-finder, enjoys the benefit of seeing and listening to when they giving evidence, the VISA photographs were real exhibits and the comparison of which did not require any findings on credibility or reliability. The question is whether a judge on appeal can consider matters not relied upon by the prosecution and not considered by the magistrate during the trial?

16.The extent to which a judge can consider matters arising from the “evidence before the trial court” by way of hearing is, in my view, of great and general importance as the issue affects all magistracy appeals.

Conclusion

17.For these reasons, I acceded to the application of the Applicant and certified that a point of law of great and general importance is involved in my decision.

Mr Jones TSUI, Senior Public Prosecutor and Ms Alison CHOW, Public Prosecutor, of the Department of Justice, for the Respondent

Mr Eric KWOK, SC, instructed by Haldanes, for the Applicant

[1] CACC 366/2015

[2] 香港特別行政區訴文訓華，HCMA 263/2017

[3] [1998] 1 HKLRD 182 (at 183F)

[4] (1999) 2 HKCFAR 539 (at pp541I to 542A)

[5] (2005) 8 HKCFAR 70

[6] [2012] 4 HKLRD 383