HKSAR v. Lau Sai Luk
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HCMA 715/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 715 OF 2013 (ON APPEAL FROM KCCC NO 1270 OF 2013) _____________________
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__________________________________ 1.The appellant was charged with an offence of common assault, contrary to Common Law and Section 40 of the Offences Against the Person Ordinance, Cap 212. The particulars of the offence was that on 4 December 2012 at “Market Place” (a supermarket) situated at the K11 Shopping Mall in Tsim Sha Tsui, he assaulted Wong Ah-yuen. 2.The appellant pleaded not guilty and he was convicted by A.B.b. Wahab (the magistrate) at the Kowloon City Magistracy (KCM). He was ordered by the magistrate to pay a fine of $1,000 and made compensation of $500 to Mr Wong. 3.The appellant appealed against the conviction. At the end of the hearing I dismissed his appeal and indicated that I would give my reasons later, which I now do. Prosecution case 4.The prosecution case is simple and straight forward. Mr Wong was an employee of the said supermarket. On 4 December 2012, the appellant pushed a trolley and hit the left thigh of Mr Wong. The aisle was wide enough for three trolleys to pass side by side. After the first hit, Mr Wong asked the appellant whether there was anything he could do to assist the appellant. The appellant told Mr Wong that he wanted to avoid Mr Wong but hit him instead. The appellant then pushed the trolley and hit Mr Wong’s left thigh a second time, this time with force. Mr Wong sought advice from his colleague at the security department of the company and a report was made to the police, as a result of which the appellant was arrested. Mr Wong knew the appellant to be a barrister who patronized the supermarket about three times per week for 1 year. He did not have much contact with the appellant and there was no grudge between the two of them. Defence case 5.As the appellant did not cross-examine Mr Wong and elected not to give evidence or call witnesses, it is unclear what the defence case was. Reasons for verdict 6.The magistrate found Mr Wong’s unchallenged evidence truthful and reliable. Whilst the magistrate could not exclude the possibility of an accident in relation to the first hit, he was satisfied beyond a reasonable doubt that the second hit was done deliberately. He found the appellant guilty of common assault. History of the case 7.Before dealing with the grounds of appeal, it is useful to set out the history of the case – both in KCM and the High Court. 8.For such a simple case, it is astonishing how many times the appellant appeared in KCM. The appellant appeared on no less than 10 occasions, on the following dates in 2013:
9.The actual trial (with Mr Wong giving evidence of the incident) took place on 9 September 2013 and the appellant was convicted on that day. Sentence was adjourned to 30 September 2013 and on that day, at the request of counsel then representing the appellant, was adjourned again to 21 October 2013 when the appellant was finally sentenced. 10.The appellant filed his Notice of appeal on 25 October 2013. The appeal hearing was originally fixed on 16 January 2014. On 9 January 2014, the appellant successfully applied to D Pang J to have the said hearing date vacated and adjourned to a new hearing date. The reason for the adjournment was for the appellant to have time to instruct counsel after he had successfully applied for the transcript of the proceedings in the lower court. It should be noted that, on record, the transcript was already available for collection in December 2013. 11.By a letter dated 21 February 2014, the appellant applied to have the appeal conducted in English (despite the fact that the hearings in the magistracy were conducted in Chinese). On 4 March 2014 Master Wong acceded the application and ordered that the appeal to be heard before a Bilingual Judge. The appeal was then set down on 27 May 2014. 12.By a letter dated 12 May 2014, the appellant claimed that he needed to have a certified translation of the transcript for a particular barrister (whom he hoped would agree to represent him) to peruse before advising on the grounds of appeal. He applied for an adjournment of the appeal. His application was placed before me and I caused my Judicial Clerk to respond to him, informing him that I was not minded to grant the application but that I was prepared to re-consider the position on the day of the hearing. 13.On 27 May 2014, the appellant renewed his application for an adjournment before me. He confirmed that he had obtained the transcript in December 2013. After he had obtained leave in March 2014 to have the appeal hearing conducted in English, he had not done any translation. Not even a single page. His explanation was that he did not know he had to prepare the translation for certification until after he paid a visit to the Resource Centre for Unrepresented Litigants in April 2014. All along he thought both the translation and the certification would be prepared for him. As the appeal was set down on 27 May 2014, he had decided not to do any translation since he could not have finished in time in any event. Apart from the time factor, he also claimed that his medical condition was such that it would have taken him many months to finish the translation as he could only work for a few hours a day and the transcript was voluminous. 14.Having considered his explanation, I was of the view that the appellant had not acted reasonably or diligently. I therefore refused his application for an adjournment. 15.The appellant then sought an adjournment on a different basis: that he was not capable of conducting the appeal and needed a counsel to represent him – despite the fact that he was a barrister. Having considered the fact that the original appeal hearing date in January 2014 was adjourned for the very purpose of allowing him to obtain legal advice and so far the appellant had not made any arrangement, I again refused the application and proceeded with the hearing of the appeal. 16.I then discovered the appellant did not even bring along the relevant papers to the court. His explanation was that he thought his application for adjournment would be granted on the hearing date. To accommodate him, I stood the case down to the afternoon so that he could retrieve his emails from the computer located in the Library of the High Court to prepare his grounds of appeal. Grounds of appeal 17.Despite his repeated claim that he was not capable of conducting the appeal, the appellant was able to advance some 6 grounds of appeal. Basically the appellant submitted he was not given enough time to instruct a lawyer or to issue summonses for witnesses when he was only given 7 days of notice of hearing (ie between the hearing on 2 September and 9 September 2013). He also made the following complaints: certain aspects of Mr Wong’s evidence were inconsistent with the medical report prepared by the doctor who had examined Mr Wong, and with Mr Wong’s own witness statement; the “non-disclosure” of the “999 audio record” by the police/prosecution; and the refusal to transfer the case to the Shatin Magistracy in view of his medical condition. 18.Apart from making oral submissions to supplement these 6 written grounds, the appellant added one final ground: there was, according to him, “strictly speaking no trial” as he could not be compelled to act in person and that he did not actively take part in the trial proceedings. Applications before the magistrate 19.It is convenient at this juncture to set out what took place before the magistrate as the appellant essentially repeated the submissions he had made to the magistrate in his grounds of appeal before me. 20.3 April 2013 was the date the appellant first appeared in KCM when the trial was set down. After that the appellant wrote numerous letters to the Principal Magistrate of KCM – enclosing correspondence between him and the police/prosecution, seeking adjournments on the basis of non-disclosure by the police/prosecution and his need of having legal representation by a lawyer of his choice. The trial never took place on either 13 or 30 May 2013. 21.The case finally came before the magistrate on 24 July 2013. From that day up to 9 September 2013 (ie on 24, 25 July; 12 August; 2 and 9 September 2013), the magistrate dealt with three applications from the appellant, which were all dismissed at the end. The magistrate set out those applications and his reasons for dismissal in his Statement of Findings in Chinese (paras 18 to 25). 22.I will set out the gist of these applications and the reasons for dismissal. 23.The first application was to have the case transferred to the Shatin Magistracy for hearing. The appellant submitted a medical report to show that he suffered from a medical condition with his foot which made it difficult and painful for him to sit down, and that he could not even get into cars or taxis. He said the only mode of transportation for him was by taking the train. Since he could go to the Shatin Magistracy by train, but not to KCM, he asked for the transfer. 24.The magistrate observed that the appellant managed to appear before him in KCM without problems and he refused the application. Nevertheless, the magistrate allowed the appellant to attend court at around 11 am (presumably to avoid the crowd as the appellant made a similar application before me). The magistrate did not notice any harm done to the appellant by refusing to transfer the case. 25.The second application was for an adjournment for a few months so that he could get the service of a lawyer of his own choice. Whilst accepting a defendant has the right to be represented by a lawyer, the magistrate was of the view that the appellant did not have an absolute right to be represented by a lawyer of his choice, otherwise a case will have to be adjourned or dismissed if a defendant insisted on having a particular lawyer. The magistrate was of the view that the appellant had been given reasonable opportunities to seek legal representation. Having considered the nature of the case and the issues raised by the appellant (including the issue of “non-disclosure”, stay of proceedings, and fair trial), the magistrate came to the view that other lawyers would be just as capable as the particular lawyer of the appellant’s choice to handle the issues involved. The magistrate refused the application after conducting a balancing exercise. 26.The third application was for a stay of proceedings on the basis that the police/prosecution had failed to disclose information relating to the “999” call. The magistrate referred to his earlier discussion with the appellant in relation to the issuance of summons to get witnesses for the defence to attend court. Since the appellant insisted that he must have the “disclosure information” from the police/prosecution before he could apply for the summons, the magistrate did not accept his reasoning and ruled against the appellant. “Non-disclousre”? 27.Interestingly, before me, the appellant denied that he had made an application to stay before the magistrate. He harped on the non-disclosure issue and submitted that he was precluded from making an application to stay. 28.Was there really “non-disclosure” by the police/prosecution? To answer that, it is necessary to look into the appellant’s allegation. The appellant complained that he was not provided with the audio record of the “999” call made by Mr Wong. He referred to numerous correspondences between him and the police/prosecution on this issue. 29.I was informed by Mr Edmond Lee for the respondent (who had gleaned the information from the trial counsel’s report) that the police had informed the appellant that the “999 audio tape” had been destroyed according to standard police procedure. As the appellant did not accept that and insisted on having the audio tape, the prosecution eventually arranged for the Woman Police Constable who took the call to prepare two witness statements: one to explain the general procedure of retention and destruction of audio recordings, the other to describe the actual conversation between the officer and the caller (Mr Wong in this case). The stance of the respondent was that there was no “non-disclosure” of information. 30.Before me, the appellant accepted he was in receipt of those two witness statements by the Woman Police Constable. The appellant, however, insisted that there was still non-disclosure as he suspected that the police had not really destroyed the recording and that the Woman Police Constable had not told the truth about the conversation. No reasons were advanced for his suspicion. Consideration of the submissions 31.As indicated earlier, the hearings in KCM lasted many days. I was provided with no less than 161 pages of transcript (which was not even the full transcript) and only the last few pages dealt with the actual trial. 32.None of the applications made by the appellant to the magistrate was of merit. The appellant did not have an absolute right to have a case adjourned on numerous occasions and for long periods pending the availability of a particular lawyer of his choice. He has been given more than ample opportunities to seek legal representation and he failed to do so. His so-called “non-disclosure” point is totally baseless. His request to have the case transferred to the Shatin Magistracy was also without merits. In any event, the magistrate had fairly coped with the appellant’s special condition and allowed him to attend court at a time later than normal. 33.When one reads the transcript, one can see that after Mr Wong had finished his evidence, the appellant was given the opportunity – more than once – to cross-examine Mr Wong so that he could put his case. The appellant declined, saying that his “right of silence” would be “compromised” if he did so. That is despite the magistrate explaining to him the purpose of cross-examination. 34.When the appellant was asked if he required any witnesses to be called by the prosecution, the appellant claimed that he did not think he had the ability to represent himself and that he was not given enough time to engage a lawyer. He maintained that he wished to have a “counsel” to represent him. 35.After the magistrate explained his rights to him, the appellant elected not to give evidence. When he was asked if he would call any defence witness, the appellant replied that such a question should be “answered by his defence counsel”. He claimed that the magistrate could not “compel” him to “conduct” the main trial. When he was asked if he would like to make a final submission, the appellant said he did not have the ability to “conduct” the “main trial” and made no submission. 36.It is clear from the history of this case that the appellant has been given more than ample opportunity to get legal representation. He failed to do so (except for sentence). No one compelled him to act in person. On the other hand, when a defendant failed to avail himself/herself of the reasonable opportunity to get legal representation, the court would have no choice but to continue with the hearing – with the defendant acting in person. 37.It is absurd for the appellant to assert that there was no trial in his case because he was compelled to act in person and he had not actively taken part in the trial. The magistrate had patiently explained the procedure and his rights to him, on more than one occasion. I am satisfied that even a lay-person without any legal knowledge would have understood, let alone someone in the position of the appellant. The appellant refused to avail himself of the opportunity to challenge the evidence of Mr Wong and he never put the defence case to Mr Wong. 38.As the appellant refused to cross-examine Mr Wong, Mr Wong’s evidence was not challenged in any way by the defence. Whether Mr Wong had given a previous inconsistent statement to either the doctor or the Woman Police Constable who answered the “999” call is neither here nor there. 39.I should add that after I told the appellant that his failure to cross-examine Mr Wong rendered his submission about the alleged inconsistencies (ie with the medical report and the “999” call) irrelevant, the appellant then applied for the chance to cross-examine Mr Wong during the appeal hearing, pursuant to section 118 of the Magistrates Ordinance Cap 227. I refused his application. The appellant had been given the opportunity to cross-examine Mr Wong during the trial. He chose not to and the trial had concluded. There is no legal basis for me to consider re-opening the case and allow him to cross-examine Mr Wong. 40.On the unchallenged evidence before him, the magistrate was clearly entitled, as a fact finder, to find that the second hit was done deliberately and amounted to a common assault. There was nothing unsafe about the conviction. 41.For these reasons, I dismissed the appeal against conviction.
Mr Lee Chun-man Edmond, SADPP of the Department of Justice, for the respondent The appellant appeared in person | |||||||||||||||||||||