HKSAR v. Lam Kwok Wah and Another

HCMA 429/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 429 OF 2012

(ON APPEAL FROM ESCC 94 OF 2012)

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J U D G M E N T

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1.The 1^st and 2^nd Appellants are father and son respectively. I will refer to them as “the father” and the “the son” respectively. The charge sheet gives the father’s age as 60 and the son as 29. They were jointly tried in the Magistrates’ Court for the offence of assault occasioning actual bodily harm against a man in his mid-40s, one Mr Lau Ting-zhung, in a street in North Point on 6 January this year. The father was convicted of the lesser offence of common assault while the son was convicted of assault occasioning actual bodily harm as charged. Each appeals against his conviction.

2.Mr Lau and the Appellants knew each other.  Some renovation works had been subcontracted by Mr Lau to the father and he owed the father some money for these works.

3.The prosecution’s case is dependent on Mr Lau’s evidence that he was attacked by the Appellants.  That evidence was contradicted by the son’s evidence supported by the evidence of a passer-by called by the defence. The father, as was his right, chose not to give evidence.

4.Seven perfected grounds of appeal against conviction have been filed on the Appellants’ behalf.  The first two grounds are closely connected.  Ground 1 reads:

“Lau Ting-zhung (‘PW1’)’s clear record was improperly adduced into evidence during the examination-in-chief and the Learned Magistrate erred in law by subsequently relying and placing weight upon the clear record when determining PW1’s credibility and reliability when delivering his oral reasons for verdict to convict both defendants.

See HKSAR v Poon Ching-Ki [2009] 4 HKLRD 41 (CA) paragraph 35 onwards.”

Ground 2 reads:

“There was a material discrepancy between the Learned Magistrate’s oral reasons for verdict delivered on the 29^th May 2012 and his subsequent Statement of Findings dated the 27^th June 2012. He indicated that he had placed weight on the clear record of PW1 in the former but not in the latter. The issue of PW1’s credibility as the principal witness was crucial to the prosecution case as a whole and to his findings of fact on the 29^th May 2012 when he decided to convict both defendants.”

5.The Respondent’s response to Grounds 1 and 2 may be taken from three paragraphs in its skeleton submissions.  They read:

“23. The case of Poon Ching Ki relied on by the Appellants can be distinguished.

(1) Poon’s case is a case where the trial judge in assessing the credibility of the witness Choi mentioned ‘I note that he had a clear record before his involvement in the events in question. And having carefully listened to him, and observed him giving evidence, I am satisfied beyond a reasonable doubt that he has told the court the truth as to what occurred’ [emphasis added]. It is under such circumstances that the Court of Appeal ‘discerned a real difficulty insofar as the Judge noted (and apparently relied on)’ the clear record when concluding the discrepancies in his evidence did not detract from his overall credibility.

(2) In assessing the evidence of another witness - the second defendant Chong - the trial judge also mentioned ‘I note that the second defendant also had a clear record before his involvement in the events in question and he gave his evidence well. He was not troubled in cross-examination, and his account coincided in all material respects with the first defendant’s. And having observed him carefully, while giving his evidence, I am satisfied beyond reasonable doubt that he has told the court the truth’ [emphasis added]. Again, it is under such circumstances that the Court of Appeal found ‘there is a significant problem because the Judge relied on evidence of Chong’s previous clear record in reaching his conclusions’.

(3) It is under such factual context that the Court of Appeal found that one must assume the trial judge placed some weight on the evidence of an absence of prior convictions, for ‘[o]therwise there would have been no point in ‘noting’ the matter’.

24. To the contrary, the trial magistrate in the present case just stated at the beginning of the prosecution’s case the evidence that PW1 is a person of clear record [44G]. It is submitted that that amounts to no more than reiterating the evidence before him. Nowhere in the detailed analysis of PW1’s credibility [47K-R] PW1’s clear record was mentioned ever again. There is nothing to suggest the trial magistrate had relied on or appear to have relied on such piece of evidence. Neither did the prosecution at the closing submissions seek to rely on PW1’s clear record in any way.

25.  Further, Counsel for the Appellants who was the trial counsel had not raised objection at trial to such evidence to be placed before the trial magistrate, nor did he invite the court to disregard such piece of evidence at his closing submissions.”

6.I do not consider that a sufficient response. These matters turn on substance and not linguistic considerations.  As in Poon’s case there would have been, as the Court of Appeal put it in that case, “no point” in the trial court referring to the prosecution witness’s clear record unless it placed some weight on that.

7.In my view, on Ground 1 alone these convictions must be regarded as affected by an error of approach and cannot be regarded as safe or satisfactory.  There is no need to go into the other grounds.

8.For the foregoing reasons, I allow the appeal to quash each Appellant’s conviction.

Mr Duncan Percy, instructed by Ivan Tang & Co, for the 1^st and 2^nd appellants

Ms Hermina Ng, of the Department of Justice, for the respondent