HKSAR v. Mok Kin Kau

HCMA1161/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1161 OF 2006

(ON APPEAL FROM STCC 13868 OF 2005)

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BETWEEN

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Before : Hon Tong J in Court

Date of Order : 6 September 2007

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O R D E R

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1.I have given judgment in relation to the appeal.  I ordered that all consequential orders were to be dealt with in writing.  I have since then received, from the appellant, the application for costs and, from the respondent, the application for retrial of the case.  Both parties have made written representations.  The appellant strongly opposed to any further retrial of the case.

2(a).Whether an order for retrial should be made in this case is not an easy decision.  I fully appreciate Mr Bruce’s submission that the appellant had already faced two trials, two appeals and had served the Community Service Order for an offence which could not be said to be very serious.  However, this was not an ordinary case of assault.  It involved an employer allegedly committing an act of violence on a domestic helper. 

2(b).I agree with Ms Sin that the alleged victim’s evidence, if properly assessed and believed, could support a conviction.  It appeared that both appeals were allowed on the basis of the magistrate’s evaluation of the evidence rather than any inherent weakness of her evidence.  I also accept that for a third trial, the victim would have had some “advantage” due to the previous cross-examinations.   However, I am sure both the prosecution and defence could be able to skillfully deal with all these relevant matters and fairly present the evidence before the magistrate for his or her consideration if a retrial is ordered.

2(c).Having weighed the various factors carefully, I came to the conclusion that a retrial would be justified in this case. 

3.As to the application for costs by the appellant, I agree with Mr Bruce’s comment and particularly in view of my decision to order a second retrial, I would grant costs in favour of the appellant on both the appeal hearing and the trial below.  If the sum cannot be agreed by the parties, the matter shall be referred to the Master for assessment.

4.Hence, as I indicated in paragraph 2(c), the case shall be referred back to the magistracy for a retrial before another magistrate.

Ms Mary Sin, SADPP of Department of Justice, for HKSAR

Mr Andrew Bruce, SC and Ms Athena Kung, instructed by Messrs Raymond Chan, Kenneth Yuen & Co., for the Appellant