HKSAR v. Wong Koon Ho Titus

HCMA 366 of 2013

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 366 OF 2013

(On appeal from ESCC 2192 OF 2012)

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BETWEEN

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DECISION

1.I gave judgment in this magisterial appeal on 6 March 2015 (“the Judgment”), dismissing the Appellant’s appeal against his conviction and allowed his appeal against sentence.  By a Notice of Motion taken out on 12 March 2015 as amended on 25 March 2015, the Appellant seeks a certificate from me that the following point of law of great and general importance is involved in the Judgment, namely,

Whether the appeal judge was entitled to form the view that the trial magistrate had only been influenced by inadmissible hearsay evidence in the sentencing process but not in reaching her verdict?

2.Having heard the parties, I refuse to grant a certificate as requested.   The following are my brief reasons.

3.In the Judgment which was in Chinese, I held that certain words hand-written on the invoices of the related restaurant were hearsay and not admissible as evidence against the Appellant.  At the trial before the magistrate, the parties allowed these words to remain on the invoices which were produced as exhibits because the invoices formed part of the business and/or accounting records of the restaurant.  Although it is a ground of appeal raised for the Appellant that the magistrate relied on the hearsay to hold that the Appellant had planned to commit the offence and had planned to assist the restaurant to obtain a liquor licence and to convict the Appellant of the offence accordingly, I pointed out in the Judgment that the magistrate had throughout her Statement of Findings never used the hearsay as evidence or basis for convicting the Appellant.  In the entirety of the Statement of Findings there was not a shred of evidence to show that she did so.  It was only in her written Reasons for Sentence (subsequently prepared after she had passed sentence) that she mentioned one of these hearsay writings and relied on it as a basis for saying that the offence was a planned one.  Thus this hearsay only affected sentencing.

4.Although the question now proposed is posed as a point of law, it was in substance and in fact a matter of fact as stated in the Judgment.  No where did the magistrate use the hearsay as a reason or basis for her verdict.   The matter cannot be raised as or elevated to be a point of law when it was dealt with and treated as a matter of fact in the Judgement.

5.It was for the Appellant to satisfy me as the appellate judge that the magistrate used the hearsay or was influenced by the hearsay to find him guilty.  The question is, rather: Was the appellate judge wrong or correct in refusing to accept the Appellant’s argument that the magistrate used the hearsay or was influenced by the hearsay to find the Appellant guilty.  Even in that formulation, it simply cannot be a point of law of great and general importance that was involved in the Judgment.

6.Further, in Lee Kin Pong v HKSAR [1998] 1 HKLRD 182 at 183F, Bokhary PJ observed that where leave to appeal to the CFA is sought on the basis that a point of law of great and general importance is involved, the point must be “at least reasonably arguable” before leave can properly be granted.  If the point is not even reasonably arguable, leave to appeal must be dismissed and there will be no point in granting a certificate in the first place.

7.The obvious answer to the proposed question is open-ended: “It depends on the circumstances.”  This does not involve a point of law of great and general importance.  Moreover, in the circumstances of the facts of the present case, the answer to the question posed must be “Yes”, and the appeal sought by the Appellant on such question is not reasonably arguable. No certificate should be granted even on merits.

8.In the result, I refuse to grant the certificate sought.

Mr Martin Hui, SADPP, and Mr Jones Tsui, Senior Public Prosecutor, both of the Department of Justice, for the Respondent

Mr Caesar Lo, instructed by Messrs David Y Y Fung & Co, for the Appellant