Ko Man Chun v. Hong Kong Special Administrative Region

FACC No. 8 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2009 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 231 OF 2009)

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Between:

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Court :    Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Hoffmann NPJ

Hearing and Decision:    5 March 2010

Handing Down of Reasons:    10 March 2010

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J U D G M E N T

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Mr Justice Bokhary PJ :

1.Most criminal cases in Hong Kong are tried in the Magistrate’s Court.  The issues at such trials are generally of fact rather than of law.  Where (as quite often happens) there is an appeal to a single judge of the High Court, the issues are still generally of fact.  In practical terms, therefore, one of the most important aspects of our criminal justice system is how issues of fact are resolved in the Magistrate’s Court and then on appeal therefrom to a single judge of the High Court.  As to this, the accepted norms include these.  The issues of fact must of course be approached with due care.  And the conclusions thereon must be expressed in terms indicative of such care.  This is not to say that lengthy reasons are always or even generally required.  It depends on the circumstances.

2.In the present case, the defendant, a teenaged boy of previous good character, was tried in the Magistrate’s Court (Ernest Lin, Esq.) on a charge of acting as a member of a triad society, contrary to a s.20(2) of the Societies Ordinance, Cap.151.  He put forward an alibi in support of which he testified and called three witnesses.  Rejecting his alibi, the magistrate convicted him and sentenced him to a term of detention (which has been served).  The conviction was affirmed on appeal by the High Court (Deputy Judge Esther Toh).  Leave was granted by the Appeal Committee for an appeal to the Court of Final Appeal under the “substantial and grave injustice” limb of s.32(2) of the Court’s statute.  Such leave was granted on the basis of a reasonable argument that the magistrate had, in rejecting the alibi, misapprehended the evidence in a material respect and that this error does not appear to have been considered either adequately or at all by the appeal judge.  In short, the argument is that there has been a departure from the accepted norms mentioned above.

3.The circumstances now before the Court are unfortunate and wholly exceptional.  Shortly stated, they are as follows.  The alibi was that the defendant was playing basketball with the three alibi witnesses at the time of the alleged offence.  In the course of rejecting the alibi, the magistrate said this :

“The most important point was that if [the accused and the three alibi witnesses] met and played basketball every Saturday, why [the three alibi witnesses] knew that they were required to give evidence about this incident only more than half a year after the incident?  When a person is arrested and prosecuted in criminal proceedings, logically that should be an important matter to him, and the three witnesses were crucial witnesses for the alibi.  They maintained that they knew they were going to give evidence in this case only in January 2009.  I considered that to be unreasonable.  That caused me to have great reservations about the credibility of every one of them.”

4.On the point which he regarded as the most important one for rejecting the alibi, the magistrate started off on the basis that once a person who really has an alibi knows that he needs it, he would normally lose little or no time in contacting persons able to give evidence in support of his alibi.  In other words, it is normally to be expected that the potential alibi witnesses would soon learn of the accused person’s alleged involvement.  That much is no more and no less than common sense.  But the magistrate obviously laboured under a misapprehension as to what was and what was not in evidence on the question of when the defendant first knew that he would need the alibi and when he first contacted his alibi witnesses.  The incident took place at the end of December 2007.  And the trial took place at the beginning of February 2009, which is a year and one month after the incident.  It was in January 2009, one month before the trial, that the alibi witnesses were informed by the defendant’s solicitors that they were required to give evidence.  The magistrate seems to have thought that it was only then, one month before the trial, that the alibi witnesses first learned of the defendant’s alleged involvement in the incident.  But as the prosecution rightly concedes, both the magistrate and the appeal judge misapprehended the evidence as to that.

5.Contrary to what the magistrate thought, the time when the alibi witnesses were informed by the defendant’s solicitors that they were required to give evidence sheds no light on when they first learned of the defendant’s alleged involvement in the incident, and is of no relevance to their credibility or that of the defendant.  Although the incident occurred on 29 December 2007, it was not until about six months later on 12 June 2008, some 7½ months before the trial, that the defendant was arrested.  The charge sheet is dated 24 September 2008, which is about four months before the trial.  Testifying at the beginning of February 2009, the alibi witness Mr Mok Chun Leung said that it was about half a year before testifying that he first learned of the defendant’s alleged involvement in the incident.  Neither the alibi witness Mr Ng Chun Hung nor the alibi witness Mr Chan Chi Fung was asked when he first learned of that alleged involvement.  As the appeal judge failed to appreciate but the prosecution rightly concedes, the magistrate misapprehended the evidence which showed that what he regarded as the most important point for rejecting the alibi was a false point.  It is plain that the misapprehension is fundamental. 

6.Even so, the prosecution asks us to dismiss the appeal.  This is how it is put in the concluding paragraph of the prosecution’s printed case :

“Although both the Magistrate and the Deputy Judge misapprehended the evidence in rejecting the alibi, it is submitted that in light of the inherent improbabilities that the witnesses could recall a weekly uneventful event which took place 6 months ago and the numerous discrepancies between the evidence of the Appellant and that of his three witnesses, the Respondent invites the Court to reject the Defence case and find that the Defence evidence cast no doubt on the Prosecution case and accordingly dismiss the appeal.”

7.Just because an event occurred weekly and is uneventful, that is no reason for concluding that persons could not possibly remember six months later that the event had taken place and when it had taken place.  The passage of time might of course account for discrepancies in the details of their testimony.  Appellate courts are often asked to take discrepancies into account.  Usually it is the defence that presses for that.  And even though the discrepancies are then being relied upon in an attack upon a conclusion which has to be proved beyond reasonable doubt, appellate courts are slow to interfere on the basis of discrepancies.  Unlike the prosecution which has to prove its case beyond reasonable doubt, an accused person does not have to prove his innocence.  Yet in this appeal we are in effect asked to say that discrepancies in the defence evidence made its rejection and the defendant’s conviction inevitable.

8.This conviction cannot be affirmed on that basis.  The test, as Sir Alan Huggins NPJ said in Ching Kwok Yin v. HKSAR (2000) 3 HKCFAR 387 at p.390H, is “whether there has been in the Magistrates’ Court an error which makes it just that the appeal should be allowed and the conviction set aside”.  That goes to whether the conviction was inevitable so that the error was harmless.  To his credit, Mr David Leung for the prosecution realistically and responsibly recognised the difficulty which he faced in arguing that the rejection of the alibi was inevitable.  It cannot be said that that this conviction was inevitable. 

9.For the foregoing reasons, we allowed the appeal and quashed the conviction at the conclusion of the hearing, awarding the defendant his costs here and in the courts below (to be taxed if not agreed), the prosecution having conceded such costs.

Mr M.K. Wong SC and Mr Lawrence Hui (instructed by Messrs Hagon Wai & Partners) for the appellant (the defendant)

Mr David Leung and Miss Hermina Ng (of the Department of Justice) for the respondent (the prosecution)