HKSAR v. Su Zhongling
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HCMA 809/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 809 OF 2011 (ON APPEAL FROM KCCC 2609/2011) ------------------------
Before: Deputy High Court Judge E Toh in Court Date of Hearing: 31 January 2012 Date of Judgment: 31 January 2012 ------------------------- J U D G M E N T -------------------------- 1.The appellant in this case is a Mainland Chinese lady who was charged with one count of “Using a false instrument”. She together with a person unknown, used a forged doctor’s referral letter in an attempt to obtain a place in Hong Kong’s public hospital. 2.The prosecution had offered no evidence and the court was told that it was on public policy grounds, which were humanitarian in nature. The defence at that stage applied for costs but was refused by the learned Magistrate. She now appeals against that Order. 3.As Mr Kuan rightly pointed out in an appeal against a discretionary order, the court is only going to interfere if the learned Magistrate had clearly gone outside the ambit of his jurisdiction or had been in error thus making the exercise of his discretion totally wrong. The relevant case law is not disputed by Mr Boyton, that is the case of SJ v Lam Chiu Fong [2009] 2 HKLRD 484, specifically at paragraph 30, as Mr Kuan pointed out the Court of Appeal citing the case of Tong Cun Lin v HKSAR (1999) 2 HKCFAR 531 where at p537C said: “it is only where it can be shown that the judge has clearly gone outside the ambit of his powers — such as, for example, taking into account a factor which plainly is not relevant to the exercise of those powers — that an appellate court’s function becomes engaged.” 4.And in paragraph 31, the Court of Appeal went on to refer to the case of HKSAR v Dove [1998] HKLRD 179, Yeung J said (at p181G):
5.That is really the law as pertaining to the application. 6.Mr Boyton has very courageously pointed out that this court should interfere in the exercise of the learned Magistrate’s discretion because the learned Magistrate had failed to consider specifically a defence point that she had been duped by a middleman. As Mr Kuan correctly pointed out I am not holding a trial of the issues, I have to determine only whether the learned Magistrate had in the exercise of his discretion gone upside the ambit of his jurisdiction. 7.The prosecution case was clearly that the defendant has been to the hospital two days prior to the date of the offence to register to deliver her baby at the hospital and was rejected. Two days later she returned with a man when the forged document was submitted. The learned Magistrate looked at the registration document and considered that a part of it, according to the defendant’s own admission, was written by her. 8.Of quite particular significance is the fact that at the bottom line of that registration document, which one can see at the page 149 of the appeal bundle, in simplified Chinese characters the date for the last day of the her menstrual period and also the expected delivery day. The dates were filled in but the description the expected delivery date was actually typed in non-traditional Chinese characters. Therefore the point is that when the document was written and parts filled in by the defendant, surely she could see both dates and what the dates pertained to. 9.Mr Boyton said the learned Magistrate had erred by saying that the date of delivery and date of last menstruation were filled in by the defendant because she did not admit to that. 10.In fact, the learned Magistrate is not expected to hold a trial in the consideration of the costs order. He simply looked at the evidence that the prosecution would be putting before the court and then he considered whether there is ample evidence from which court at the end of the day could draw a conclusion as to the guilt of the defendant. 11.It may be that the defendant’s defence that she had been duped by a middleman may at the end of the day be sufficient for the court to give her the benefit of the doubt but we are not dealing with that at this stage as we are only dealing with the discretion any exercise of the learned Magistrate not to order cost because the prosecution had offered no evidence. 12.So, as Mr Justice Yeung has noted in the case of DOVE, the learned Magistrate had to consider whether had the appellant had brought suspicion upon herself and or misled the prosecution into thinking that the case against her is stronger than otherwise was the case. 13.The evidence before the learned Magistrate was clearly sufficient, if not overwhelming, that the defendant had participated in the submission of the false instrument together with that unknown person. The ultimate goal was in order to gain a place in a Hong Kong public hospital for her to give birth. 14.I cannot see having read the learned Magistrate’s reasons for his decision that he was acting outside the ambit of his jurisdiction. 15.Whether Mr Boyton is right or not that the dates were not actually filled in by the defendant because the handwriting of the dates were different. While that may has been an issue at the trial, there was no trial, the learned Magistrate merely looked at all the evidences which the prosecution was going to submit before the court. I do not see that he has acted outside the ambit of the jurisdiction. 16.It is not the case of whether the appellate court would have given costs or not. It is a matter at this stage whether the learned Magistrate had acted outside his jurisdiction 17.Therefore, I find that this appeal fail because I cannot see the learned Magistrate had acted in error so the appeal is dismissed.
Mr David Boyton, instructed by John M Pickavant & Co, for the appellant Mr Franco Kuan, SPP of the Department of Justice, for the respondent | |||||||||||||||||
Cases cited in this judgment