HKSAR v. Leung Kwok Wing

HCMA495/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 495 OF 2008

(ON APPEAL FROM KTCC 1268 OF 2008)

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Before : Hon Nguyen J in Court

Date of Hearing : 31 July and 29 August 2008

Date of Judgment : 29 August 2008

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J U D G M E N T

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1.At the last hearing on 31 July 2008, the appellant was not represented.  I adjourned the appeal to this morning for the Legal Aid Department to reconsider the appellant’s application for legal aid and I recommended that he should be granted legal aid.  The adjournment was also for the Legal Aid Department to communicate with the counsel acting for the appellant at the trial to ask the counsel about two matters, namely :

(1) the appellant’s eye problem; and

(2) why the appellant did not give evidence at the trial.  

2.It was most commendable that Senior Legal Aid Officer, Mr Philip Yeung, was able to attend before me at the last hearing at short notice and who subsequently granted the appellant legal aid and assigned solicitor and counsel to act for him.  The solicitors for the appellant on the advice of counsel filed a notice of motion to seek leave to adduce new evidence for the purpose of the appeal.  The new evidence sought to be adduced comprises :

(1) The medical reports by Dr Kwok Shek Keung (“Dr Kwok) of the Eye Centre :

In the first report, by Dr Kwok dated 28 July 2008.  Dr Kwok stated that he found the appellant’s left eye to be blind from very severe cataract.  Dr Kwok found the appellant to have very severe short sightedness in the right eye and the residual vision left was less than 5% without glasses correction.  He also found no history of the appellant wearing glasses.  He found the vision of the appellant to be poor in terms of field width and clarity.  In the second medical report by Dr Kwok dated 25 August 2008, Dr Kwok stated that the condition of the severe cataract in the appellant’s left eye must have been there for more than two years.  He found that the short-sightedness in the appellant’s right eye would have been there since the appellant became an adult. 

(2) The medical report of Dr Ida Io of the Department of Ophthalmology of the Caritas Medical Centre, dated 23 July 2008 :

In that report, Dr Io stated that the appellant was first seen on 6 May 1997 and was found to have his retina in the left eye totally detached. The report stated that according to the patient, he was punched by his wife a couple of weeks before 6 May 1997.  The patient was admitted on the same day and retinal reattachment surgery was performed on 10 May 1997 when the retina was anatomically reattached.  The patient was last seen by the Caritas Medical Centre, on 5 March 1999 when he was found to have immature cataract.  The patient subsequently defaulted on follow up treatments.  

(3) The medical records in respect of the appellant from the accident and emergency department of Queen Elizabeth hospital compiled in February 2006.  

(4) A letter from Tsim Sha Tsui police division to the appellant to confirm that on 10 February 2006 at 1:18 a.m. the police received a report that he was assaulted by three persons outside nos. 31-43 Mody Road, Tsim Sha Tsui.  

(5) A photo of the street scene where the alleged offence was committed. 

(6) An affirmation by the appellant on 26 August 2008 where he stated inter alia that beginning from a few years before the incident on 16 February 2008 his vision was not clear.  He stated that before he was examined recently by Dr Kwok, he was not aware that the problem of his vision was so severe.  Hence, at the trial, he did not inform his counsel about his eye problem.  He confirmed that he was punched on his eye by his wife with her fist which at the time had a ring on it, which caused his retina to be detached.  He confirmed the incident when he was assaulted on Mody Road in Tsim Sha Tsui by a few males as a result of his colliding into them as he approached them from the opposite direction. 

(7) Affirmation of the appellant’s sister Madam Leung Suet Fun, dated 26 August 2008 :

Madam Leungdeposed to the fact that when the appellant was pouring water into a glass in the past he often spilled the water as if he had no sense of distance.  She mentioned that when she took him on walks in the countryside, he hesitated when he encountered steps of different sizes, which led her to believe that he could only carry out activities under familiar circumstances.  Since 1999, the appellant refused to receive further medical treatment for his vision problem and maintained that his vision was normal.  These are some of the contents of the sister’s affirmation. 

3.After considering the additional materials and causing the police to interview Dr Kwok, Mr Michael Wong, Senior Public Prosecutor on behalf of the prosecution, this morning, very properly conceded the appeal and stated that he would not apply for a retrial.  

4.I formally grant leave for the additional evidence to be adduced in this appeal.  In my view, the recent medical reports by Dr Kwok are highly relevant to the question of whether the appellant’s vision was such that on the day of the incident he could have a) avoided colliding with the complainant and b) formed the intention to touch her on her left breast with an indecent intent.  In my view, if the medical evidence had been induced at the trial, the learned Magistrate might have well arrived at a different verdict other than one of guilty.  Counsel for the appellant at the trial mentioned in his affidavit that he did see an appointment card for 5 March 1999 at the Department of Ophthalmology of the Caritas Medical Centre.  The appellant in his affidavit did explain why he did not give any instructions to his counsel about his defective eyesight, so counsel cannot be blamed for not adducing the medical evidence before the Magistrate.  

5.For the reasons stated above, the appeal against conviction is allowed and the conviction and sentence is quashed.  If the fine has been paid, it should be refunded to the appellant.

Mr Michael Wong,SPP of the Department of Justice, for HKSAR

Mr Wong Hay Yiu, instructed by Messrs David Hui & Co.,  assigned by the Director of Legal Aid, for the Appellant