Ching Kwok Yin v. HKSAR

FACC000002/2000

FACC No. 2 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2000 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 652 OF 1999)

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Date of Hearing and Decision: 16 November 2000

Date of Handing Down of Reasons: 23 November 2000

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J U D G M E N T

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Mr Justice Bokhary PJ :

1. At the conclusion of the hearing on 16 November 2000 we allowed this appeal to quash the appellant's conviction, and we awarded him his costs in the Magistrates Court, in the High Court, in the Appeal Committee and in this Court. We said that we would hand down our reasons later, and we now do so by the judgment of Sir Alan Huggins NPJ.

Sir Alan Huggins NPJ :

2. The appellant was tried in the magistrates' court on a charge of unlawful and malicious wounding contrary to s.19 of the Offences against the Person Ordinance. He was convicted and sentenced to two months' imprisonment.

3. This was a case which turned ultimately upon the evidence of the appellant and the alleged victim (Mr Wong Pan-yuk) alone. They lived in the same house, Mr Wong being the sub-tenant of the appellant's wife. The house was an illegal structure, and a demolition order had been made. Mr Wong said that the appellant made a sudden, unprovoked attack upon him with a grind-stone, thereby causing a wound on his forehead and loosening one of his teeth. He and the appellant had previously had a dispute whether they should choose resettlement or financial compensation in relation to the demolition of the house, and they had also quarrelled about the payment of rent, during which quarrel the appellant had attacked Mr Wong with a piece of stone. A police officer confirmed that Mr Wong had a bleeding wound on his forehead but he could not find the grind-stone. It was common ground that this had been kept in the kitchen. The appellant denied the attack and said that Mr Wong was under the influence of alcohol and had abused and threatened him : however he (the witness) went to his own room and did not know how Mr Wong came by his injuries. He described Mr Wong as a "weird" person who had previously threatened others.

4. The magistrate found Mr Wong to be credible and reliable and convicted the appellant. The appellant appealed to the High Court on the ground that the prosecution had failed to disclose that Mr Wong had a record of criminal convictions.

5. In his judgment on the appeal Yeung, J said :

"The information available now shows that [Mr Wong] was convicted for the offences of aiding others in breaching the condition of stay and unlawful use of electricity without authority in 1991 and 1995 respectively and was fined on both occasions."

In was not in dispute that the prosecuting officer had in his papers a note of these convictions and that they were not disclosed to the defence. The judge held that the failure to disclose the criminal record constituted "a grave procedural error" but that he still had to decide whether that error rendered the conviction unsafe or unsatisfactory. He thought that it did not and that, if the trial magistrate had been informed of Mr Wong's criminal record, he would not have varied his finding that Mr Wong's evidence was credible and reliable. He therefore dismissed the appeal.

6. With leave the appellant now appeals to this court on the ground that he has suffered substantial and grave injustice.

7. The appeal to the High Court was brought under the provisions of Part VII of the Magistrates Ordinance. The judge's powers in disposing of the appeal were governed by s.119(1)(d) and (e), which read :

"(d) the judge may by his order confirm, reverse or vary the magistrate' decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate.

(e) the powers of the judge under paragraph (d) shall be construed as including power to award any punishment, whether more or less severe than that awarded by the magistrate, which the magistrate might have awarded."

There is in the Magistrates Ordinance no equivalent to s.83 of the Criminal Procedure Ordinance, which specifies the grounds upon which an appeal to the Court of Appeal may be allowed, and therefore there is no proviso which requires that the appeal shall be dismissed if no miscarriage of justice has actually occurred: the judge may make such order as he thinks just. It follows that he has to decide whether there has been in the magistrates' court an error which makes it just that the appeal should be allowed and the conviction set aside.

8. It is common ground that there is a duty on the prosecution to disclose to the defence details of the criminal convictions of any of its witnesses if it knows of them and that a breach of that duty is a material irregularity : Paraskeva (1982) 76 Cr App R 162, 164, Stuart-Smith LJ in Reg v. Maguire [1992] 2 All ER 433, 446h said ; "no-one can have a duty to inform of what he does not know", but he went on to say that the agreed proposition in Paraskeva (supra) left open the question who was embraced by the word "prosecution". It also leaves open the question whether there is a duty to make enquiries about a witness's record, but that is something we need not consider in the present case since it is not disputed that the information should have been disclosed. We say only that prosecuting officers would be well advised to make enquiry about a witness's record where his credibility is likely to be a crucial issue in the case.

9. In Reg v. Maguire (supra) Stuart-Smith, LJ also said at p.446d:

"If categorisation is necessary we are content to categorise a failure to disclose as a 'procedural' irregularity, and because that which was not disclosed ought to have been disclosed, we would expect the irregularity to be one which usually satisfied the adjective 'material'. In a case such as R v. Hassan (1968)52 Cr App R 291 there was not a failure to disclose because the convictions were unknown, and the case had to be dealt with under para. (a) [of s.2(1) of the Criminal Appeal Act 1968]. There was no irregularity."

Here, Yeung, J rightly held that there was a grave procedural error, but the effect of his judgment was that he did not regard that error as sufficiently serious of itself to require that the appeal be allowed: that is to say he did not think it was material. We think that was wrong. The error would only have been immaterial if the magistrate would undoubtedly have entered the same verdict had he known of Mr Wong's previous convictions. In our view it cannot be put any higher than that he might have entered the same verdict. The conviction was therefore unsafe, and an unsafe conviction is a miscarriage of justice. Counsel for the respondent did not seek to sustain the conviction.

10. At the close of the argument we allowed the appeal, quashed the conviction and ordered that the prosecution pay the costs in the Magistrates' Court and of the appeals to the High Court and to this Court.

Representation:

Mr Yeung Yeuk-chuen (instructed by Messrs So & Co) for the appellant

Mr Arthur Luk & Mr Alex W.T. Lee (of the Department of Justice) for the respondent