HKSAR v. Guy Derek Reypert

HCMA000070/1997

1997, NO. MA 70

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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Coram: Hon Pang, J. in Court

Date of hearing: 26 June 1997

Date of judgment: 26 June 1997

Date of handing down reasons: 11 September 1997

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REASONS FOR DECISION

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1. These are my reasons for dismissing the Appellant's appeal against conviction on 26 June 1997.

2. On 2 December 1996 the Appellant Guy Derek Reypert was convicted after trial of one count of assaulting a police officer in the execution of his duty. He was fined $4,500 and was ordered to pay compensation of $1,000 and cost of $5,000. There were two main grounds of appeal and the first of which was that the findings of the learned magistrate was contrary to the weight of the evidence. The second ground was by reason that there was no official record of the reasons for verdict and that the subsequent Statement of Findings contains ex post facto reasoning, the conviction was rendered unsafe and unsatisfactory.

3. The events giving rise to the second ground was that after hearing the evidence on 29 November 1996, the learned magistrate adjourned the case to 2 December for verdict. At the adjourned hearing the learned magistrate gave oral reasons for his decision and there was no official record of the reasons given; it being the case that the court recording system was not functioning at the time. A trainee solicitor from those who instructed Mr Ross, however, took a short note of what was said and based upon which she dictated a file note. The sheets containing the handwritten notes and the dictated file note were placed before this court by way of an affidavit sworn by the trainee solicitor.

4. Some 18 days later, the learned magistrate wrote his Statement of Findings.

5. It is now the Appellant's case on appeal that there are material differences between the learned magistrate's oral reasons and his written Statement of Findings. What the learned magistrate said in open court, according to the Appellant was materially different from the contents of his Statement of Findings. Mr Ross highlighted four such differences and they are in respect of the Appellant's arrest, the learned magistrate's finding on the credibility of the police witness, his reliance on PW1's evidence and what had actually caused the scuffle between the Appellant and the police. It was argued that the Statement of Findings contained impermissible ex post facto reasoning and the material differences suggested that the learned magistrate had not addressed himself properly in respect of the evidence before him.

6. Mr Ross relied on the case of R v. Wong Shing Fai [1991] HKLR 372 where Hooper, J. allowed an appeal and ordered a re-trial on a charge of indecent assault on the ground that when the learned magistrate first gave oral reasons for his decision, he failed to make express references to the issue of corroboration although subsequently in his written Statement of Findings he had covered the point. After referring to the Court of Appeal decision in R. v. Hui Lap Keung and Ors. [1989] 1 HKLR 261 in which Silke, V.-P. commented that the practice of recording two reasons for verdict, one at the time of the verdict was announced and the other subsequently, was not to be encouraged, Hooper, J. made the following observation at p.375 :

" It should not be open to the Magistrate, if he gives reasons for verdict in court, to avail himself of an unfair advantage by tying up the matter later with the benefit of hindsight."

I have no reason to disagree with the views of the learned judge.

7. My attention was also drawn to the decision of another division of the Court of Appeal inR. v. Lee Yat-lung and Ors. Criminal Appeal No.210 of 1982. On the issue of how the appellate court is to resolve discrepancies in the respect note kept by the trial judge and counsel, Roberts C.J. said :

" Where the official record of a trial consists of a handwritten note kept by the judge, it is inevitable that there will, from time to time, be mistakes and omissions, as there are equally likely to be in any note kept by counsel. What, therefore, is this court to do when counsel challenges the record provided by the judge?

Unless the dispute is itself to be the subject of a trial, at which evidence is to be given by counsel and the judge, which would surely be inappropriate, there seems to us to be no alternative, as a general rule in cases of conflict of this kind, but that the version of the trial judge, who is responsible for maintaining the proper record of the proceedings, should be accepted, save only where the judge's record, or his reply to the variations put to him by counsel, suggests that his version of what happened is so inherently improbable that we should not accept it."

In that case the Court of Appeal accepted the judge's record and the comments which the trial judge had made on the submissions made to him by counsel.

8. In the present case, when the point of material differences in the reasons was first taken, the learned magistrate was invited, very properly, to comment on the note taken and on the document dictated by Ms Groves the trainee solicitor. The learned magistrate's written response was strong and unequivocal. What he said about the accuracy of the contemporaneous note was :

"woefully inadequate"

and

"... this reportage (on the reasons given) is highly inaccurate and misleading."

To the general tenor of the note, the learned magistrate commented :

" The tone of the dictated piece is wholly at odds with the actuality of the occasion. The deponent's use of language and choice of words does not begin to mirror mine ..."

Towards the end of his reply, this was how the magistrate described the documents :

"... whilst these documents do capture some of the sense of what I said, they remain unreliable."

9. The learned magistrate dismissed any suggestion of ex post facto reasoning in the Statement of Findings with finality and said :

"... If it is suggested that what I said at the time is in any conflict with what I later wrote, then I would reject that with vigour. The way I expressed my findings and reasons in writing will of course differ from my oral reasons, but I well remember this unusual trial and I have the clearest recollection of how I saw the case against the defendant and the substance of that has never changed."

10. The comments of the learned magistrate on the contemporaneous note leave me in no doubt that what he said of documents was correct. It follows that this is not a case where the court is faced with two sets of materially different reasons from the magistrate, one in the oral delivery and the other in the subsequent Statement of Findings as was in the case of R. v. Wong Shing Fai (supra). There is but only one set of reasons before this court. The ground of appeal based on alleged ex post facto reasoning must fail.

11. Having discounted the contents of the note and of the dictated record exhibited in Ms Gorves' affidavit, this court only needs to concentrate on the reasons contained in the Statement of Findings.

12. The other ground of appeal is directed at the learned magistrate's failure to deal with certain aspects of the evidence.

13. One of the points taken under this ground of appeal was that the learned magistrate failed to resolved the apparent conflicts in the evidence of the taxi driver (PW1), the arresting officer (PW2) and another officer (PW3) regarding whether a truncheon was used. It was the taxi driver's testimony as well as that of PW3 that they did not see that a truncheon was used in the course of the incident. PW2, the arresting officer, however, gave evidence to the contrary. With respect to Mr Ross, who was counsel in the court below, he must have recalled in his cross-examination of the taxi-driver, after the witness said that he did not see a truncheon being used, he went on to qualify his answer by saying that it could have happened and he might not have noticed it. The learned magistrate then went on to deal specifically with the issue of whether a truncheon was used by observing, and with respect rightly so, that :

"I would have thought that they (the police officers) would have settled on a story about the baton. I judged that the contradiction was explained by the fact that there was no extravagant or dramatic use of a baton and that differing recollections of a moving series of events accounted for the matter."

14. The other point taken on the evidence was that the learned magistrate erred in determining the real reason for which the Appellant was arrested. He was criticized for not making a finding as to whether the Appellant was arrested for non-payment of taxi fare or failure to produce his ID card when requested. With respect, the learned magistrate did make a finding. In paragraph 4(e) of his Statement of Findings he found that the Appellant was arrested for non-payment of taxi fare and, more importantly, the learned magistrate found that the officer was acting in execution of his duty as a police officer. I find that there is no substance in the point taken on the arrest.

15. It is apparent from the Statement of Findings that the learned magistrate did address himself on the issues of credibility of the witnesses and on the apparent conflicts in the evidence. He was entitled to come to the conclusions as he did on the evidence before him. For the reasons given, this appeal must be dismissed.

Representation:

Mr David Leung, Government Counsel, for Respondent

Mr Phillip Ross, inst'd by M/s Lovell White Durrant, for Appellant