HKSAR v. Singh Darshan

HCMA000644/2003

HCMA 644/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 644 OF 2003

(ON APPEAL FROM ESCC 3594/2002)

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Coram: Deputy High Court Judge E Toh in Court

Date of Hearing: 12 March 2004

Date of Judgment: 12 March 2004

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J U D G M E N T

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1.The Appellant was charged in the Magistrate's Court of one charge of common assault.

2.The facts were that the main prosecution witness was related by marriage to the Appellant, due to some unhappy incidents in the relationship, they resulted in the offence which purportedly occurred. In the trial, the Magistrate, after hearing the evidence of the witnesses, found that the he believed the prosecution witnesses and therefore convicted the Appellant of the charge.

3.The issue in the case is really the credibility of the witnesses. After the prosecution witnesses gave evidence, the Appellant had elected to give evidence and also called witnesses on his own behalf. His defence is he denied that he had ever assaulted PW1 and he also called the 2nd defence witness who was the kindergarten teacher and her evidence contradicted the evidence of PW1.

4.As Mr Madigan has conceded. It is clear that the relationship between PW1 and PW2 was not satisfactorily explained in court when they were giving evidence. The teacher who was the 2nd defence witness was called to give evidence and there was no reason for her to lie. It is clear that the learned Magistrate had not properly dealt with these matters when she found the prosecution witnesses to be totally credible. So, Mr Madigan, for the Respondent, had very properly conceded that the evidence in this trial was unsatisfactory and the background of the parties created a lot of suspicions and that the Appellant should be entitled to the benefit of the doubt.

5.I totally agree with him and I therefore, allow the appeal and the conviction of the Appellant is quashed.

6.Mr Ross has on behalf of the Appellant had applied for costs in this appeal and also for the trial below. Again, Mr Madigan very properly has conceded that he cannot oppose the costs for the trial below and this appeal. But Mr Ross went further and applied for costs in obtaining transcript of evidence that PW1 had given in another trial in which she had been disbelieved. Mr Ross also applied for the fees for counsel who was holding a watching brief in that trial.

7.Mr Ross in his application referred to the case of HKSAR v. Chan Hon Man to support his application for costs for the transcript and the watching brief for counsel in that other case.

8.I do not think that this case helps Mr Ross in his application. All that case said is that of course, the evidence of the witness in another case may be relevant in the cross-examination or in the trial, as far as her credibility is concerned. But to go further and to say that the Appellant is therefore entitled to costs for the transcript and the watching brief of counsel, I am not prepared to go, I am not convinced that it is a proper application in the circumstances and therefore I refuse the application relating to costs for the transcript and for the watching brief in the other case.

9.I will give the Appellant costs for the appeal and for the trial below and the costs to be taxed if not agreed.

Representation:

Mr P K Madigan, SGC of the Department of Justice, for the Respondent

Mr Phillip Ross, instructed by Messrs Jal N Karbhari & Co., for the Appellant