HKSAR v. Chan Cheuk Wah

[English Translation – 英譯本]
HCMA 1203/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1203 OF 2007

(ON APPEAL FROM KCCC NO. 6281 OF 2007)

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BETWEEN 

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Before: Hon Deputy Judge Pang in Court

Date of Hearing: 17 April 2008

Date of Reasons for Judgment: 5 May 2008

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial as a co-defendant on one count of “possessing obscene articles for the purpose of publication”, contrary to section 21(1)(b) of the Control of Obscene and Indecent Articles Ordinance, Cap. 390 of the Laws of Hong Kong, and was sentenced to imprisonment for 12 months.  The appellant now appeals against conviction.

Facts

2.The facts of the present case were straightforward and have been summarized by the magistrate in his written reasons for verdict.  The relevant parts are reproduced below:

The prosecution’s case is that, on 8 October 2007, the defendant and the second defendant herein (D2) ran a shop at certain premises in [Soy] Street which displayed and sold obscene optical discs.  In the end, they were both arrested by undercover police officers who seized a large quantity of optical discs which contained obscene materials.

…

The key witness in the present case is a plainclothes police officer who visited the subject premises.  At 5:50 p.m. on that day, the witness was present outside the subject premises.  The defendant greeted the witness from inside, asked him if he was interested in buying discs, and told him the price.  The witness entered the subject premises and noticed a large quantity of optical discs being displayed on the walls.  There was also a man on one side putting the optical discs on a table into the covers.  Seeing that the time was ripe, the witness revealed his identity and declared arrest.

…

The prosecution and the defence have agreed that the police found and seized from the subject premises a total of 2,512 obscene digital optical discs.  Judging from the contents thereof, those optical discs [fall] within the definition of obscene articles (refer to MF1 of the admitted facts).

After I ruled that a prima facie case was established, the defendant elected to give evidence.  On the day of the offence, he went to the subject premises upon invitation by his friend ‘Fat Boy’ (i.e. D2).  He walked through a glass door and saw Fat Boy sitting inside the subject premises.  Meanwhile, the telephone rang, and Fat Boy asked the defendant to wait for a short while, and so the latter stood outside the wooden door and waited.  One or two minutes later, the police arrived and told him to keep quiet.

Prior to the incident, the defendant did not know that optical discs were kept inside the subject premises.  Under cross-examination, the defendant said that at 1-2 p.m. on that day, Fat Boy had two conversations with him on the phone.   The defendant had arranged to meet Fat Boy for dinner, and therefore he went to the subject premises at 5 p.m. or so.  At that time, he was so eager to go to tea with Fat Boy that he did not enter the subject premises through the wooden door to wait for him.  At that time, he also saw Fat Boy sitting inside the subject premises.  He did not know why he was arrested, but he did not inquire of the police.  Although he was framed up by the police, he agreed that he has never lodged any complaint.

The magistrate’s verdict

3.In the end, the magistrate found the appellant guilty.  The reasons therefor are set out in the written reasons for verdict.  The main reason was that the magistrate found the evidence of the key witness reasonable and credible but the defence evidence was not.  As regards the latter point, the magistrate made considerable analysis and his conclusion is reasonable and logical.

The present appeal

4.However, all this only came in as an afterthought.

5.As shown in the transcript, the magistrate delivered the verdict immediately after the defence closed its case.  He said:

Yes, thank you.  Stand up, defendant.  Having considered the evidence of both the prosecution and the defence, I find that the prosecution has proved beyond reasonable doubt that you did tout and sell the obscene optical discs to the police officer at that time.  The facts at that time also show that you did possess the optical discs in question at the time.  You are convicted of the charge.

6.The above was all that the magistrate said.

7.This, however, is plainly inadequate.  Basically, his oral verdict did nothing more than stating the standard of proof required of the prosecution and declaring that the appellant was convicted of the offence.  In other words, unless the appellant lodged an appeal and the magistrate provided a written verdict pursuant to the rules, the appellant would never know why he was convicted.  What happened did not conform to the procedure and made it impossible for the appellant or his legal advisers to decide whether and if so on what grounds an appeal should be lodged and whether bail pending appeal was to be sought, etc.

8.The above observations are in fact amply supported by authorities.  For example, in HKSAR v. Sin Chi Yin [1999] 2 HKC 403, at 407 F-G:

I am aware of the workload in the Magisterial Courts and it would be unrealistic to suggest that their oral reasons should take the form of a carefully prepared written judgment.  But good sense and practice requires that the important legal and evidential features of the case should at least be covered by the magistrate in note form, albeit orally.

9.Another example is HKSAR v. Lee Siu Wo [2002] 3 HKLRD 283, at 284 H-J:

The ground of appeal on which I am persuaded to allow the appeal is that the learned Magistrate, when convicting the appellant, had failed to give adequate reasons.  It is a fact, as Mr Leung, appearing for the respondent, pointed out, that magistrates have a very heavy workload and so we do not expect a magistrate to give detailed oral reasons for her verdict, but basic reasons should be given and it is not enough for a magistrate when convicting a defendant to merely say that she is satisfied that the prosecution has proved its case beyond a reasonable doubt, because one must bear in mind that the defendant himself and/or his legal advisers have to decide within a short time whether to lodge an appeal against that conviction.  In order to do so the legal adviser and/or the defendant have to know on what bases he was convicted.  So it is unfortunate, here, that the learned Magistrate did not see fit to give some reasons for her conviction of the appellant.

Judgment

10.The appeal is allowed.  The conviction is quashed and the sentence set aside.  The case is to be remitted to another magistrate for re-trial.

Ms Mickey Fung, Senior Government Counsel, for the HKSAR.

Mr Bruce Tse, instructed by M K Lam & Co., for the defendant.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.