HKSAR v. Shortall, Terence Joseph

HCMA 801/2009

HEADNOTE

1.As can be seen from s. 118(1)(b) of the Magistrates Ordinance, Cap. 227, the power to admit further evidence thereunder is exercisable if the judge considers such evidence to be “necessary”.  Since the courts are here to administer justice, that means of course necessary in the interests of justice.  The discretion is otherwise unfettered by any statutory conditions, but it is of course a judicial discretion to be exercised judicially.

2.The proper approach to applications to adduce further evidence on appeal must cater for the need to avoid the indefinite prolongation of the legal process. It has to be borne in mind that if fresh evidence is admitted on appeal, the appellate court would be engaged in deciding whether the trial court would have arrived at a different result if it had received that evidence. So the appellate process will still focus on the facts before the trial court, and will be directed to the safety or otherwise of the conviction or convictions appealed against. In the light of all of that, the general rule is the conditions to be satisfied before further evidence will be received on appeal are as follows:

(I)  THE EVIDENCE WAS UNAVAILABLE AT TRIAL OR A REASONABLE EXPLANATION FOR ITS NON-PRODUCTION AT THE TRIAL IS PROVIDED;

(II)  SUCH EVIDENCE MUST BE RELEVANT TO THE ISSUES;

(III)  IT IS LIKELY TO BE CREDIBLE; AND

(IV)  IT MIGHT HAVE LED TO A DIFFERENT VERDICT OR VERDICTS SO THAT IT RENDERS THE CONVICTION OR CONVICTIONS APPEALED AGAINST UNSAFE OR UNSATISFACTORY.

HCMA 801/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 801 OF 2009

(ON APPEAL FROM ESCC 2647 OF 2009)

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Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing:  19 May 2010

Date of Judgment:  2 June 2010

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J U D G M E N T

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3.The Appellant was convicted after trial in the Magistrate’s Court (William Lam, Esq) on two charges of indecent assault. He now appeals against his convictions. At the time of the offences of which he was convicted, the Appellant, a man of previous good character in his early fifties, was an Associate Professor in the Faculty of Education at the University of Hong Kong. He was the Programme Director for the two students whom he was convicted of indecently assaulting, a Miss Lui aged 20 and a Miss Chan aged 21. His office was at Room 329 of Hui Oi Chow Science Building in Bonham Road. The case which the Magistrate found proved against him is that he had in that room indecently assaulted Miss Lui on the afternoon of 8 May last year and Miss Chan on the afternoon of 11of that month. Miss Lui was the victim named in Charge 1 while Miss Chan was the victim named in Charge 2.

4.If what Miss Lui described in her testimony had occurred, it would plainly have been an indecent assault, and the same is true of what Miss Chan described in her testimony. The Appellant testified that he had not done what Miss Lui and Miss Chan said he did and that he had never had any physical contact with his students in Hong Kong apart from shaking hands.

5.Well after the filing of the perfected ground of appeal against convictions (and indeed after those grounds were amended), a Notice of Motion was taken out on the Appellant’s behalf seeking the reception of further evidence on appeal. This Motion was heard when the appeal was called on. After hearing counsel on both sides, I dismissed the Motion and declined to receive any further evidence on appeal. I said that my reasons for declining to receive any further evidence on appeal would be given when I came to give judgment in the appeal itself. Before turning to the appeal itself on the evidence received at the trial, I will now give my reasons for declining to receive any further evidence on appeal. These reasons are as follows.

Motion for reception of further evidence dismissed

6.Appeals from the Magistrate’s Court are brought either by way of case stated under s.105 of the Magistrates Ordinance, Cap. 227, or by way of the “alternative procedure” under s. 113 of that Ordinance. Although the expression “alternative procedure” is commonly used (and indeed appears in the Ordinance as a sub-heading immediately above s. 113), by far the most appeals from the Magistrate’s Court are brought under s. 113. The nature of an appeal under s.113 was explained by the Court of Final Appeal in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70 at p. 78D-F where it was said:

“An appeal under s. 113 of the Magistrates Ordinance is by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court may admit under its statutory power to do so …  Where the facts are concerned, the appellate tribunal will recognise that it does not enjoy the advantage of having received the evidence at first-hand which the magistrate enjoyed.  Even so, it will not fail to quash a conviction that it considers unsafe.”

7.In an appeal from the Magistrate’s Court, the power of the High Court judge (or the Court of Appeal if the appeal is sent there by the High Court Judge under s. 118(1)(d) of the Magistrates Ordinance) to receive further evidence comes from s. 118(1)(b) of that Ordinance which provides that in an appeal under s. 105:

“When the appeal comes on for hearing the appellant shall be first heard in support of the appeal, the respondent if present and if he so desires shall be heard against it and the appellant thereafter shall be entitled to reply.  If the judge thinks additional evidence to be necessary he may receive such evidence, and for that purpose shall have the like powers under subsections (1) and (6) to (10) of section 83V of the Criminal Procedure Ordinance (Cap. 221) that the Court of Appeal would have had if the appeal had been an appeal to which that section applied, and the judge may issue any process necessary for enforcing the exercise of such powers.”

8.Subsection (1) of s. 83V of the Criminal Procedure Ordinance, Cap. 221 reads:

“For the purposes of this Part, the Court of Appeal may, if it thinks it necessary or expedient in the interests of justice –

(a)  order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case;

(b)  order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court of Appeal whether or not he was called in those proceedings; and

(c)  subject to subsection (3), receive the evidence, if tendered, of any witness.”

9.Subsections (3) provides that the evidence of the witness must be competent. Subsections (6) to (10) deals with spouses.

10.As can be seen from s. 118(1)(b) of the Magistrates Ordinance, the power to admit further evidence thereunder is exercisable if the judge considers such evidence to be “necessary”. Since the courts are here to administer justice, that means of course necessary in the interests of justice. The discretion is otherwise unfettered by any statutory conditions, but it is of course a judicial discretion to be exercised judicially.

11.Without re-writing the legislation, the courts have by their decisions over the years provided guidelines as to the circumstances under which further evidence on appeal will be received. One of those decisions is the one given by the Court of Appeal in Cheng Wui Yiu v HKSAR, CACC 532/2004, 21 December 2007. The guidance given in that case is to be found in paras 29-34 of the Court of Appeal’s judgment.

12.Looking at that judgment and the authorities which it cites, it can be seen that the position is as follows. The proper approach to applications to adduce further evidence on appeal must cater for the need to avoid the indefinite prolongation of the legal process. It has to be borne in mind that if fresh evidence is admitted on appeal, the appellate court would be engaged in deciding whether the trial court would have arrived at a different result if it had received that evidence. So the appellate process will still focus on the facts before the trial court, and will be directed to the safety or otherwise of the conviction or convictions appealed against. In the light of all of that, the general rule is the conditions to be satisfied before further evidence will be received on appeal are as follows:

(i)  the evidence was unavailable at trial or a reasonable explanation for its non-production at the trial is provided;

(ii)  such evidence must be relevant to the issues;

(iii)  it is likely to be credible; and

(iv)  it might have led to a different verdict or verdicts so that it renders the conviction or convictions appealed against unsafe or unsatisfactory.

13.The further evidence which the Appellant wanted me to receive on this appeal consists of an Affirmation made by his solicitor Mr Michael John Vidler on 7 May 2010 and the exhibits thereto. These exhibits are:-

(i)  an official floor plan of the floor on which the Appellant’s office is located;

(ii)  a letter dated 10 July 2009 from the Secretary of the Faculty Review Committee to Miss Lui, copied to the Appellant, referring to the recommendation made in the preceding month that her studies be discontinued and stating that the Committee would meet on 20 August 2009 to review that recommendation;

(iii)  a letter dated 4 May 2010 from the Dean of the Faculty to the Appellant’s solicitors confirming that the Committee had resolved on 20 August 2009 that Miss Lui was not required to discontinue her studies;

(iv)  a statement dated 7 May 2010 by a colleague of the Appellant’s, Professor Leo Hoye, who had a meeting with Miss Chan on 4 September 2009 at her request and who gave it as his “impression” that she “felt guilty” about her allegation against the Appellant; and

(v)  a Facebook message dated 16 October 2009 from Miss Chan to the Appellant saying:

“After the trial, there’s really a lot I want to ask you.  Perhaps you’ve already heard it from Leo.

Of course I know you must hate me very much.  I don’t know where to begin…”

14.The floor plan was obtained from the University’s website. There is no reason why it could not have been obtained for use at the trial. No explanation for its non-production at the trial has been offered. In any event, it is simply not relevant to any issue.

15.As for the letters about discontinuance, defence counsel at the trial knew about the meeting scheduled for 20 August 2009 and had cross-examined Miss Lui about it. So the letters concerned add nothing significant to the evidence received at the trial. It could not have made any difference.

16.Professor Hoye’s “impression” that Miss Chan “felt guilty about her allegation” against the Appellant amounts to nothing more than inadmissible opinion. It is not evidence.

17.Finally, there is the Facebook message of 16 October 2009. All that it showed is that Miss Chan was upset about what happened to the Appellant in consequence of the complaints made against him by Miss Lui and herself. That adds nothing significant to the evidence before the Magistrate, which he accepted, that Miss Chan had not been keen to report the matter to the police and had done so because her friends suggested that course. It could not have made any difference.

Fatally flawed approach to the evidence at trial

18.Those are my reasons for referring to receive any further evidence on appeal. I turn now to the evidence at the trial, and I say at once that it was evidence on which a court could safely and satisfactorily convict if it was approached in a safe and satisfactory way. The question is whether it was approached in such a way.

19.On that question, I have given anxious consideration to what the Magistrate said in accepting Miss Lui and Miss Chan’s evidence and what he said in rejecting the Appellant’s evidence.

20.One of the things which the Magistrate said in accepting Miss Lui and Miss Chan’s evidence is this: “In fact one of the avenues as discussed between PW1 and PW2 was ‘to just keep quiet’ which clearly shows that they could not have fabricated evidence in order to destroy the Deft.” That treats the fact of such a discussion as uncontroversial and then proceeds to use it as a foundation for finding that Miss Lui and Miss Chan’s allegations were not fabricated. But such a discussion is, on the Magistrate’s approach, assumed to be one between victims. Therein lies the problem, for the whole controversy at the trial was whether Miss Lui and Miss Chan were victims or only pretending to have been victims. The Magistrate’s approach involved making an assumption against the defence on the crucial issue and then, on the basis of that assumption, making a finding against the defence on the crucial issue.

21.One of the things when the Magistrate said in rejecting the Appellant’s evidence is this:-

“7.  The Deft said he had never had any physical contact with either PW1 or PW2.  However the evidence shows he is not as “distant” or professional, or pristine, as he would have us believe:

(1)  He himself says he has adopted a “friendly style” towards his students in order to help them solve their problems.  The emails in Exh P5 to P7 indeed contained the Deft’s requests for PW1 to “Please call me Terry” instead of “Professor” or “Dr Shortall”.

(2)  More than once the Deft had written to PW1 “Sleep well”.

(3)  And the Deft was clearly attracted to PW1, and he was clearly attempting to get close to her, because in his email to PW1 he wrote “If I can get you out of this mess, you have to teach me how to dance!!”

The above evidence does not support the Deft’s effort to ask us to believe he was an entirely professional person who was pristine and at arms length with at least PW1.

(4)  As to PW2’s case, while the Deft did not deny it was he who had initiated the meeting on the 11^th May, he said he did not know for what purpose PW2 had come over.  He further said he was surprised PW2 would mention things about her private life, like not having a boyfriend, which he did not wish to discuss, especially at a time when he was busy in his office and waiting to leave the campus (it was well after 5pm).  If that had been true, Deft would have asked PW2 “Why have you come over today?” and said “I don’t wish to know about your private life.  There are other places at University for such discussions.  Sorry but I am busy right now and it’s getting late.  If it is official business can we leave it to our next Faculty meeting?”  But the Deft did none of that.  I find Deft’s version incredible.

After listening to the Defence evidence I have felt no reasonable doubt about the Prosecution’s case, nor have I found the Defence case to have weakened the Prosecution’s case in any way.”

The problems with that are these.  First of all, the trial did not turn on whether the Appellant had behaved in a manner which was “pristine or at arms length” (whatever that may mean).  Secondly and more importantly, it involves a finding that the Appellant had been, on his own evidence, unprofessional.  There is no room for such a view of his evidence.  But even if there was some such room, it would not be fair to take such a view without it having been put to the Appellant that he had been unprofessional.  That had not been put to the Appellant by prosecuting counsel when cross-examining him.  Nor had the Magistrate ever intervened to put any such suggestion to the Appellant for him to deal with.

Conclusion

22.In the result, I am of the view that, in consequence of the Magistrate’s approach to the evidence of Miss Lui and Miss Chan and his approach to the evidence of the Appellant, the evidence at the trial as a whole had not been approached in a safe and satisfactory way. In such circumstances, the Appellant’s convictions cannot be affirmed unless they were inevitable in the sense, as the Court of Final Appeal explained in Ching Kwok Yin v. HKSAR (2000) 3 HKCFAR 387 at pp. 390C – 391F, that verdicts of guilty would undoubtedly have been entered even if the evidence at the trial as a whole had been approached in a safe and satisfactory way. I do not think that one can go as far as to come to such a conclusion. I therefore regard these convictions as neither safe nor satisfactory. Accordingly the appeal is allowed and the Appellant’s convictions are quashed.

23.There is no possible basis on which a retrial can properly be ordered. The Appellant has already served the term of imprisonment passed on him on the charge involving Miss Lui. The fine imposed on him on the charge involving Miss Chan must be refunded.

24.Finally, I want to say this. Although I have found the Magistrate’s approach fatally flawed, I detect from the record every effort on his part to be fair. As for the Appellant, he must now be treated as having had his good name restored to him. This is not – I emphasis that it is not – any reflection whatsoever on either Miss Lui or Miss Chan. Each of them retains her good name. All fair-minded people should realise that these proceedings were, at trial, about whether charges were proved beyond reasonable doubt and, on appeal, about whether convictions were safe and satisfactory. That is all. It is now over. Nobody should be thought any the worse for it.

[Submissions on Costs]

25.The Appellant asks for his costs of the trial and of the appeal. The Respondent does not oppose the costs of the trial, but submits that there should be no order as to the costs of the appeal.

26.It was on the basis of the evidence at trial that the Appellant’s appeal against conviction succeeded. His motion to adduce further evidence on appeal was dismissed. That motion was, in truth, misconceived. It resulted in using up of some time and costs.

27.All things considered, I think that the just course is to award the Appellant his costs of the trial and 80% of his costs of the appeal, such costs to be taxed if not agreed. I so order.

Mr James McGowan, instructed by Messrs Vidler & Co., for the Appellant

Miss Hermina Ng, of the Department of Justice, for the Respondent