HKSAR v. Leung Chun Choi

HCMA000751A/1999

HCMA751/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.751 OF 1999

(ON APPEAL FROM ESCC NO.3890 OF 1998)

-------------------------

--------------

Coram: Hon Gall J in Court

Dates of Hearing: 7 September 2000

Date of Judgment: 22 September 2000

----------------------

J U D G M E N T

----------------------

1. On 2 July 1999, the applicant was convicted of one charge of assault occasioning actual bodily harm and sentenced to three months' imprisonment. He appealed both the conviction and sentence. On 1 June 2000, both the appeals against conviction and sentence were dismissed. There is now an application before me on behalf of the applicant for a certificate pursuant to section 32 of the Court of Final Appeal Ordinance, Cap.484.

2. Section 32 (2) of the Court of Final Appeal Ordinance provides :

"(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that substantial and grave injustice has been done."

3. The grounds of the application are firstly that in the exercise of the appellate jurisdiction conferred by section 119(1)(d) of the Magistrates Ordinance, Cap.227, the judge erred in concluding that "If I am satisfied that the magistrate has properly considered the law and the facts, then it is not for me to re-evaluate his decision to see if I would have come to the same decision."; and secondly, on the true interpretation of the said subsection, has the judge determining such an appeal the entitlement and duty to allow such appeal if he considers the conviction unsafe even if no error by the magistrate is revealed.

4. The passage complained of must be read in context in full, it reads :

"... If I am satisfied that the magistrate has properly considered the law and the facts, then it is not for me to re-evaluate his decision to see if I would have come to the same decision. I am satisfied here that the learned magistrate has properly considered all of the evidence concerning the consumption of alcohol by the complainant, the description of her by other witnesses such as the restaurant manager, the constable who questioned her after the event and Senior Inspector Chan, the officer who was present and gave evidence. On this evidence and his evaluation of those witnesses, he was entitled to come to the conclusion as to the capacity of the witness to identify the appellant."

Further, it must be read in context to what appears later in the judgment (at page 19) :

"... However the principal complaints by the appellant in respect of his conviction are the findings of fact by the magistrate and the credit or lack of it he gave to various witnesses. These are matters within the province of the magistrate and an appellate court will be slow to interfere unless a magistrate can be seen to be in error. The magistrate's approach was to carefully and fully set out the law and carefully and fully set out the evidence and give a meticulous consideration and analysis...."

5. On a full reading of the judgment, I do not consider that the judge has adopted the proposition either that if the magistrate has made no error on the face of the record the appeal cannot be allowed nor has he rejected the principle that an appellate judge may allow an appeal if he considers the conviction to be unsafe and unsatisfactory. Since in my view the judgment does not have the meaning argued in the application no point of law of great and general importance is involved in it

6. The application is refused.

Representation:

Mr D.G. Saw, SC, DDPP, leading Mr Martin Hui, GC of Department of Justice, for the Respondent

Mr Desmond Keane, SC, leading Ms Rachal Cheung, instructed by Messrs Anthony Kwan & Co., for the Applicant