HKSAR v. Khan Ijaz Ahmed

CACC 229/2024, [2024] HKCA 1072

On appeal from [2024] HKDC 1549

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 229 OF 2024

(ON APPEAL FROM DCCC NO. 389 OF 2022)

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BETWEEN

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REASONS FOR DECISION

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Introduction

1.The applicant faced 7 charges of common assault[1] (charges 1-7), 1 charge of assault occasioning actual bodily harm[2] (charge 8), and 1 charge of doing an act or a series of acts tending and intended to pervert the course of public justice[3] (charge 9).  He stood trial before Deputy District Judge K Lo (“the judge”). 

2.At the close of the prosecution case, the judge ruled that there was a case to answer in respect of all but charge 2.  The applicant elected not to testify. 

3.After trial, he was convicted of 5 charges of common assault but was acquitted of the other charges.  Upon conviction, the judge adopted a starting point of 5 months for each charge which was then reduced to 3 months, giving 1 month for the delay and 1 month for his good character.  Partly consecutive sentences were then ordered, resulting in a total term of 7 months. 

4.Before me, the applicant applied for bail pending appeal against conviction and sentence.  At the conclusion of the hearing, I granted him bail on terms.  These are my brief reasons for granting the application.

Prosecution Case

5.PW1 was the only witness called at trial.  Given the nature of this application, it is not necessary for me to dwell deeply into the facts or the charges. 

6.Briefly stated, the prosecution case was that the applicant had assaulted PW1 on a number of occasions while PW1 was in his employ.  There is no dispute that PW1’s employment contract was terminated in December 2010 and PW1 was taken to the airport to return to his home country, Pakistan.  However, PW1 later illegally re-entered Hong Kong and lodged a claim with the Labour Tribunal in respect of the applicant’s failure to pay his wages.  According to the chronology of events filed with the court by the prosecution, PW1, for the first time, then disclosed the alleged ill-treatment by the applicant in this 2012 report to the Labour Tribunal. 

7.Charge 9, the perverting charge, was in relation to this claim and PW1 said that the incident took place inside a room in a court building when PW1 and the applicant were asked by the tribunal officer to consider possible settlement regarding the claim. 

Grounds of appeal

8.Perfected Grounds of Appeal have not yet been filed by Mr Walsh, SC, who appeared for the applicant at the bail hearing.  However, Mr Walsh confirmed that he would be conducting the appeal and the grounds set out in the applicant’s Form XI would be the grounds relied on which he undertook to file shortly. 

9.Insofar as the appeal against conviction is concerned, 3 grounds are advanced: (1)  the lack of particulars of the charges; (2)  the delay in bringing the prosecution; and (3)  the credibility of PW1.  As for sentence, the ground put forth is that the immediate custodial term of 7 months was manifestly excessive. 

Consideration

10.It is well established that for an application for bail pending appeal, even if the application is made on the time basis, the applicant still has to demonstrate that the grounds are reasonably arguable: see e.g. HKSAR v Shum Man-fai[4]. 

11.In respect of the first 2 grounds of appeal against conviction as presently formulated, it would seem to me that such complaints would be more relevant to pre-trial applications such as a permanent stay of the prosecution rather than as reasonably arguable grounds.  However, having read the defence’s written closing submissions, I noticed that the first 2 grounds were actually matters urged upon the judge when considering the credibility of PW1.  Plainly, these 2 matters could not, on their own, stand as reasonably arguable grounds and the ground concerning PW1’s credibility would be germane to the likely success or otherwise of the appeal.  Mr Walsh accepted this. 

12.Given the background of the case, this credibility issue, and the issue of reliability, should be at the forefront of the judge for PW1 was the sole witness in the case and he was giving evidence on matters which happened more than a decade ago. 

13.Having gone through the Reasons for Verdict and Mr Walsh’s written submissions, there are matters surrounding the judge’s assessment of PW1’s credibility which causes me concern.  To name a few:

(1)  the criticism that PW1 did not report the alleged assaults until much later: the judge appeared to have resolved this by making reference to PW1’s fear of the applicant’s influence back in his home town[5].  Yet, the judge did not explain why PW1 would find it safe to mention the assaults to the Labour Tribunal 2 years later when he illegally re-entered Hong Kong in 2012 given that “PW1 and his family are still residing in the same village as [the applicant’s] family.”;

(2)  the suggested animosity PW1 bore towards the applicant: the judge, while acknowledged that there was such animosity, seemed to have simply resolved it by stating that PW1 did not exaggerate[6]; and

(3)  PW1 being evasive: the judge seemed to have reasoned that because PW1 also provided irrelevant answers to the prosecuting counsel, he was not evasive[7]. 

14.Moreover, as Mr Lau for the respondent accepted, the judge did not seem to have dealt with the relatively primary issue raised by the defence concerning PW1’s motive to fabricate against the applicant so that PW1 could have a cause to stay in Hong Kong after his illegal re-entry. 

15.In short, I am satisfied that the ground concerning the judge’s handling of PW1’s evidence is reasonably arguable. 

16.As for the sentence appeal, both parties agreed that the applicant’s earliest date of discharge would be 3 February 2025. 

17.Since the alleged events took place between 2007 and 2010 while the applicant was sentenced in October 2024, I find it reasonably arguable that sufficient weight had not been given to the delay involved in this case when the judge imposed the final sentence. 

Decision

18.For the reasons stated above, the applicant’s application for bail pending appeal was granted on the terms announced in court.  

Mr Douglas Lau, SPP(Ag), for the Respondent

Mr Wayne Walsh, SC, instructed by M/s Lee Law Firm, for the Applicant