Ng Tat Kwong v. HKSAR

FAMC000051/2003

FAMC No. 51 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 51 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 525 OF 2003)

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 9 February 2004

Date of Determination: 9 February 2004

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ:

1.The applicant was charged with employing a person without employees' compensation insurance. He admitted that there was no insurance, but he denied that the person in question was an employee. That person was, he said, a partner. The magistrate convicted, and the High Court affirmed the conviction. In seeking leave to appeal to the Court of Final Appeal, the applicant puts forward two reasons why he says that substantial and grave injustice has been done to him.

2.First, it is complained that the magistrate rejected the contents of a document relied upon by the defence when it was never suggested to the applicant in cross-examination by counsel for the prosecution that the document was false. While, as held by the Court of Final Appeal in Lo Chun-nam v. HKSAR (2001) 4 HKCFAR 1, it is generally incumbent on a party to make it plain to a witness in cross-examination that his evidence is not accepted and in what respect it is not accepted, his failure to do so is not necessarily fatal. In the present case, it had been made clear that the prosecution's case was that the applicant's evidence of a partnership was false. The document in question was part and parcel of that defence case. And the document was in no way independent of the applicant. The appeal judge was plainly right in his view that in the particular circumstances of this case no unfairness was caused by the cross-examiner's failure to put it to the applicant in terms that the document was false. No reasonably arguable case exists for saying that there has been a substantial and grave injustice in consequence of that failure.

3.Secondly, it is complained that the magistrate applied the civil standard of proof or at least that there is uncertainty as to the standard of proof which she applied. We do not think that this complaint is reasonably arguable. It is based on some observations of the magistrate which could have been better expressed than they were. But looking at the matter as a whole, it is plain that the magistrate applied the correct standard. That being plain, there is neither injustice nor the appearance of injustice.

4.Leave to appeal is refused.

Representation:

Mr Kelvin Y.C. Leung (instructed by Messrs William Sin & So) for the applicant

Mr Cheung Wai-sun and Mr Joseph Wong (of the Department of Justice) for the respondent