HKSAR v. Wong Chi Yin

HCMA 117/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 117 OF 2005

(ON APPEAL FROM TWCC 1442/2004)

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BETWEEN

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Before: Deputy High Court Judge Carlson in Court

Date of Hearing: 29 June 2005

Date of Decision: 29 June 2005

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D E C I S I O N

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1.In this matter, the Appellant is unrepresented.  He had in the recent past been apparently represented by both solicitors and counsel, which he had instructed privately and then when funds ran out he applied for legal aid but the Legal Aid Department felt unable to give him a legal aid certificate so that he might be represented.

2.The consequence of all of this is that it is only now, when he comes to argue his appeal, that I have become aware of what he is saying in support of the appeal and the same applies for Mr Shiu who appears to respond.

3.In the course of telling me all about it, the Appellant has shown me a note from counsel, who had once been instructed on his behalf to advise and it is clear from that note that there are a number of matters that might be arguable, but the effectiveness of those points really depends on the Court seeing transcripts of some parts of previous trials which did not involve this Appellant.

4.The matter comes about in this way.  The Appellant is appealing against a conviction by Mr Kevin Browne in relation to a charge of inviting someone to become a member of a triad society, contrary to section 22(2) of the Societies Ordinance.  The principal evidence came from an undercover police officer and this all formed part of a larger police investigation in which this particular police officer had given evidence against a number of people who were arrested as a result of his undercover work.  This officer had given evidence in two cases, in particular, at Tsuen Wan Magistrates Court.  The cases were TWCC1440/2004 and TWCC 1441/2004, which resulted in acquittals and at this stage it is quite impossible to know why the Defendants’ in those cases were acquitted.  The way that the Appellant wishes to put the matter is to say that this must have been because PW1 had not been believed on those two separate occasions by the Court and that this should have been brought to the attention of Mr Browne.  It was not and, therefore he was deprived of a fair trial.

5.Now this is really the subject matter of this note from counsel who was previously advising the Appellant.  It seems only right that a transcript of the evidence of PW1 in those matters which I have just referred to at Tsuen Wan should be prepared, together with, in each of those cases the reasons given by the Magistrate for acquitting the Defendants and inevitably, as I think it right that the transcript should be obtained, this matter will have to be adjourned for some weeks for that to be done.

6.That will mean, I am afraid to say, that by the time the matter comes back, the Appellant will have served the majority, if not all, of his sentence but that cannot be helped; this all could have been done more quickly by him at the time when he was represented.  There are other grounds of appeal which are not dependent on the obtaining of any further transcripts and these relate to the conduct of the learned Magistrate in this appeal, it being said that he interrupted the witnesses in such a way that the trial had not been conducted fairly.  All of that can be looked at, having regard to the transcript of the trial in this case.  So I am going to adjourn the matter for the reasons that I have just given and it will be adjourned to a date to be fixed.  I will discuss with the Appellant and Mr Shiu when that should be but much of this will depend on the state of the court’s list.

7.I am advising the Appellant, having regard to the fact that I have now called for these transcripts to renew his application for legal aid.  It is a matter of the legal aid authorities as to whether legal aid is granted but perhaps once the transcripts have been obtained and the reasons for the acquittals in those cases is available the legal aid authorities may have reason to change their attitude towards any application for legal aid but I leave that to the Appellant and so, for all of these reasons, this appeal will now be adjourned to a date to be fixed.

Appellant in person

Mr Gavin SHIU of Department of Justice for Respondent