HKSAR v. Ahmad, Bilal

HCMA 622/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 622 OF 2013

(ON APPEAL FROM KCCC 1872 OF 2013)

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J U D G M E N T

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1.This Appellant appeals against his conviction after trial in the Magistrates’ Court on a charge of indecent assault and against the sentence of 6 months’ imprisonment passed on him.

2.Five grounds of appeal against conviction have been put forward.  The first is incompetence on the part of defence counsel. The second is material non-disclosure by the prosecution. The third is that the Magistrate failed to resolve, or resolve satisfactorily, discrepancies and inconsistencies in the prosecution’s evidence. The fourth is that the Magistrate had failed to consider, or adequately consider, the inherent improbability of the alleged victim’s story. The fifth is that there exist a lurking doubt rendering the conviction unsafe and unsatisfactory.

3.One ground of appeal against sentence has been filed. It is that the sentence is manifestly excessive in all the circumstances.

4.I say at once that there is nothing in the third, fourth and fifth grounds of appeal against conviction. The first and second grounds of appeal against conviction are both, in my view, made out. As to the first ground, defence counsel’s explanation as to why certain matters were not pursued consists essentially of his assertion that he did not receive sufficient instructions on them. In my view, that appears to have been because the defence counsel and solicitors had not probed the matter as they plainly ought reasonably to have done. The result was an unfair trial to the prejudice of the Appellant.

5.As far as the second ground is concerned, much of the matters in the undisclosed material was contained in the disclosed material, but there was one important thing in the undisclosed material but not in the disclosed material. That had to do with the victim scolding her father and even the social work officer. This ran counter to the politeness which she asserted in the witness-box in order to account for why she had taken down the Appellant’s telephone number after, according to her, she had been indecently assaulted by him. 

6.The conviction is therefore quashed. There remains the question of a retrial.

7.Mr Eric Cheung who argued this appeal for the Appellant said that a retrial would be difficult to resist if it succeeded only on the first ground but that a retrial would not be appropriate if it succeeded on the second ground. In my view, there is no reason to treat a retrial as rendered inappropriate by the Appellant’s success on the second ground. Mr Cheung, in resisting a retrial, also relied on the fact that the Appellant has already served over two months of his sentence. Mr Cheung says that this basis of resisting a retrial would be rendered even stronger if the sentence of 6 months’ imprisonment is regarded as too severe, which he urges that it is. Since the conviction is quashed, there is no effective appeal against sentence as such. But that last argument makes it necessary for me to say whether I regard the sentence of 6 months’ imprisonment as too severe. In my view, the sentence is not too severe, not being manifestly excessive, wrong in principle or otherwise open to legitimate complaint.

8.After the conclusion of the hearing on 7 March 2014, my clerk received on 10 March 2014 a letter of that date from Mr Cheung. By that letter, for the various reasons given in it, Mr Cheung urges two courses. One is that the court should, in the interests of the alleged victim in addition to other considerations, refrain from ordering a retrial. The other is to consider “directing the police to carry out due enquiries to check if triad activities are involved and whether the girl may have been implicated”. I do not see any reason why I should refrain from ordering a retrial on the basis that a retrial would not be in the alleged victim’s interests. Nor do I consider it appropriate to direct the police as suggested.

9.All things considered, I regard a retrial as appropriate, and order that the Appellant be retried on this charge of indecent assault. It is because I am ordering a retrial that I have kept my reasons brief in order to avoid saying anything that might prejudice the retrial. I do wish to say however that defence counsel’s and solicitors’ failure on this occasion, while rendering the trial unfair to the Appellant’s prejudice, does not involve any attack on their competence generally. I also wish to make it plain, in case it is not already plain, that the material non-disclosure on the part of the prosecution did not involve bad faith or anything of that kind. I conclude by thanking counsel on both sides in this appeal.

Mr Eric Cheung, of ONC Lawyers, for the appellant

Ms Audrey Parwani, of the Department of Justice, for the respondent