HKSAR v. Lee Siu Wo

HCMA 632/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 632 OF 2002

(ON APPEAL FROM NKCC 1988/2002)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 1 August 2002

Date of Judgment: 1 August 2002

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J U D G M E N T

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1.The Appellant was convicted after trial of two charges relating to possession for the purpose of trade or business infringing copies of copyright works and possession for the purpose of publication obscene articles and he was sentenced to a training centre. The Appellant originally appealed against conviction and sentence but he abandoned his appeal against sentence this morning and proceeded with his appeal against conviction.

2.The prosecution evidence was quite simply that customs officers went to the premises in Sai Yeung Choi Street, Mongkok and the Appellant was inside the premises. Inside the premises were found the infringing articles, the Appellant also was found to be in possession of keys which matched the locks to the premises. The defence, however, was that he was only there to visit a friend or rather a brother of a friend and he did not possess the articles inside the premises, and the keys were only given to him shortly before he was found in the premises.

3.The learned Magistrate after hearing counsel's submission, convicted the Appellant. At P.40 of the appeal bundle at F, she said simply that the prosecution had proved its case on Charges 1 and 2 beyond a reasonable doubt. Therefore, he is guilty of Charges 1 and 2 and as for Charge 3, she was not satisfied that the prosecution had proved its case beyond a reasonable doubt and so he is acquitted of Charge 3. That was all she said when convicting the Appellant and subsequently the Magistrate then adjourned the sentencing in order to obtain reports and on the return date, counsel representing the Appellant in the court below, Mr Wong, who is also the Appellant's counsel in this court, then made his submission to the Magistrate, applying for bail on the basis that she had given inadequate reasons when convicting the Appellant. The learned Magistrate refused to grant bail. It is unfortunate that bail was not applied for in the High Court and the Appellant has been in the Detention Centre for two months.

4.The ground of appeal on which I am persuaded to allow the appeal is that the learned Magistrate when convicting the Appellant had failed to give adequate reasons. It is a fact, as Mr Leung appearing for the Respondent pointed out, that magistrates have a very heavy workload and so we do not expect a magistrate to give detailed oral reasons for her verdict, but basic reasons should be given and it is not enough for a Magistrate when convicting a Defendant to merely say that she is satisfied that the prosecution has proved its case beyond a reasonable doubt, because one must bear in mind that the Defendant himself and/or his legal advisers have to decide within a short time whether to lodge an appeal against that conviction. In order to do so, the legal adviser and/or the defendant have to know on what bases he was convicted. So it is unfortunate here that the learned Magistrate did not see fit to give some reasons for her conviction of the Appellant.

5.Therefore, in the circumstances, I have no alternative but to allow the appeal and I will, in conclusion say, adopt the words of Mr Justice Pang in the case of HKSAR v Sin Chi-yin reported in [1999] 2 HKC 407 where he says this:

" I am aware of the workload in the Magisterial Courts and it would be unrealistic to suggest that their oral reasons should take the form of a carefully prepared written judgment. But good sense and practice requires that the important legal and evidential features of the case should at least be covered by the magistrate in note form, albeit orally. Having said that, over-generalised statements such as 'I have warned myself of all necessary warnings as required by law' or in the absence of specific references, phrases such as 'I have considered all the evidence before me' is, in my view, inadequate."

I hope that the Magistrate in preparing her oral verdict will bear this in mind in the future when convicting a defendant. In these circumstances, the appeal is allowed, the conviction is quashed and the prosecution has also applied for a re-trial.

6.Mr Wong, for the Appellant, has objected to a re-trial on the basis that the Appellant had been in custody for some two months and that the prosecution now knew the defence relied on by the Appellant and the prosecution witnesses would have had a trial run and so therefore in those circumstances it would be unfair to the defence. All I can say on this is that it is inevitable when a re-trial is ordered that such circumstances do exist, but the main consideration is that although it is unfortunate that the Appellant had to spend two months in custody, however, there is good and proper evidence in this case for the prosecution, if not for the mistake made by the magistrate, so I therefore order a re-trial. This case is sent back to the Magistrate's Court for a re-trial.

Representation:

Mr David Leung, SGC, for DPP

Mr Philip Wong, instructed by Martin Law & Co., for the Appellant