HKSAR v. Suen Kong Shing

HCMA000886/1998

HCMA886/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.886 OF 1998

(ON APPEAL FROM ESCC 1545 OF 1998)

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Coram: Hon Pang J in Court

Date of Hearing: 8 September 2000

Date of Judgment: 29 November 2000

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J U D G M E N T

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1. After his trial before a magistrate sitting in the Eastern Magistracy, the appellant Suen Kong Shing was convicted of one charge of attempt to mislead a police officer, contrary to section 64(b) of the Police Force Ordinance, Cap.232. The learned magistrate ordered that the appellant be placed on open probation.

2. The incident giving rise to the charge took place on 1 May 1998 inside a supermarket in Chaiwan, Hong Kong. The trial took place on 25 June 1998 and the appellant was sentenced on 22 August 1998. Six days later, he filed the Notice of Appeal. Apart from the printed grounds as contained in Form 101, there were no other grounds of appeal.

3. The history of this appeal can quite justifiably, in my view, be described as amazing. It was first set down to be heard before Beeson J on 20 January 1999. On the day of the hearing, the appellant appeared before the learned judge and applied for an adjournment due to his medical condition which application was duly granted. Subsequent hearings were set down variously before Woo, Yeung, Pang and Burrell JJ. On each occasion, the appellant had chosen not to turn up. On three of those occasions, the presiding judge dismissed the appeal for want of prosecution only to have the appellant writing to the court claiming that he was suffering from various forms of ailment and therefore could not attend the court on the date scheduled. On each occasion his appeal was restored. The appeal was finally heard by this court on 8 September 2000.

4. The particulars of the charge alleged that the appellant had knowingly attempted to mislead a police officer by giving false information that he was assaulted by a female employee at the Wellcome Supermarket ("Wellcome") in Chaiwan.

5. The first prosecution witness, who was the officer who handled the complaint, gave evidence that he received a complaint of common assault from the appellant on the evening of 1 May 1998. He proceeded to take a witness statement from the appellant and the statement was produced as an exhibit at the trial. Subsequent investigation by the police revealed that no assault had taken place. The female employee of Wellcome, against whom the complaint was made, appeared as the second prosecution witness at the trial. Three other staff members of Wellcome also gave evidence to the effect that there had been no dispute or argument at all involving the appellant and any of the Wellcome staff.

6. The appellant elected to give evidence. His girlfriend was also called to give evidence as a defence witness. Their version of the incident was that they were both shopping at Wellcome on the day in question. While in the supermarket, they were accused by PW2 as thieves who were intending to steal from the supermarket. An argument ensued during which PW2 slapped at the appellant's head and scratched at his arm causing him to bleed. The appellant also explained that on the day in question, he had taken some prescribed medication which had made him felt sleepy. When he was interviewed by the police for his statement, he was trying his best to recall the incident and he never intended to mislead the police. The learned magistrate accepted the evidence of the prosecution witnesses and found that no assault had ever taken place by anyone against the appellant. He concluded by finding that in giving the witness statement as he did, the appellant had deliberately and intentionally misled the police.

7. In addition to the pro-forma grounds of appeal, the appellant advanced three additional grounds of appeal by way of oral submissions before this court. The first ground being that the learned magistrate failed to consider he was under the influence of prescribed medication at the time when he was interviewed by the police. The second ground was that the prosecution has misled him into believing that they would not produce the witness statement which he had given to the police as evidence against him. Thirdly, he was denied the opportunity of calling a defence witness to give evidence at the trial.

8. On the point of the effect of medication, the learned magistrate had reminded himself of this part of the evidence in his Statement of Findings. He had obviously considered the claim by the appellant that he was under the influence of medication and then rejected the contention. By accepting the evidence of the supermarket employees, he concluded that there had been no assault of any kind by anyone against the appellant Any suggestion made by the appellant to the police that he was assaulted by PW2 was a total fabrication.

9. The appellant was legally represented at the trial. It must have been apparent to his legal representative that it was an essential part of the prosecution case to have the witness statement adduced as evidence in court. The basis of any misleading information supplied by the appellant would be contained in the statement itself and it would have been inconceivable for the prosecution to suggest that they would not produce the statement as evidence in court.

10. The prosecution case concluded on 25 June 1998. The trial was adjourned to 3 July and the appellant had more than a week to consider and to locate defence witnesses. Nowhere in the transcript of proceedings before this court was it recorded that there was an application to call a defence witness which was refused by the learned magistrate. There was indeed no mention that there was any other defence witness other than the girlfriend of the appellant who was given the opportunity to give evidence for the defence. There is no substance in this ground of appeal as well.

11. The learned magistrate had considered carefully the evidence before him and concluded that the appellant's complaint to the police was a total fabrication. The conviction is neither unsafe nor unsatisfactory. For the reasons given, the appeal against conviction is dismissed.

Representation:

Mr Winston Chan, GC of the Department of Justice, for the Respondent

Appellant in person