HKSAR v. CHAN SHU HUNG

[English translation – 英譯本]
HCMA425/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 425 OF 2011

(ON APPEAL FROM KTCC 151/2011)

________________

REASONS FOR JUDGMENT

1.  The appellant was charged with one offence of Criminal Damage, contrary to section 60(1) of the Crimes Ordinance, Cap. 200 of the Laws of Hong Kong. He was fined $1,500 and was ordered to pay compensation in the sum of $450. He appealed against the conviction.

2.  After hearing the case on 1 December, I allowed the appeal, quashed the conviction and set aside the sentence.  The appellant was provided with professional legal service on a pro bono basis, and was required to pay only $350 for traffic expenses and incidental expenses.  I awarded him $350 as costs of the appeal and I indicated that my reasons for the judgment would be handed down in due course.

3.  On the other hand, the appellant asked me to consider recommending to the Government to grant him ex gratia compensation.  I heard submissions about this on 12 December.  The respondent was represented by Senior Assistant Director of Public Prosecutions Mr. Alex Lee.  After the hearing, I adjourned the pronouncement of my decision.  I now give my reasons for allowing the appeal and will also deal with the application relating to ex gratia compensation.

Prosecution case

4.  The prosecution case was quite simple.  The appellant was the owner of a residential unit on the top floor of a building.  His unit included the flat roof thereof and the water tank of the building was installed on the rooftop.  The appellant had on many occasions climbed to the top of the water tank and flied a kite there.  The incorporated owners of the building warned him that he should not do so but was ignored by him, so the incorporated owners had barbed wire put up on the railings above the flat roof owned by the appellant to prevent him from climbing from his flat roof by using a ladder to the water tank to fly kites.

5.  Apart from the area of the appellant’s flat roof, there was also an area on the rooftop which was for common use.  In the common area there was a vertical ladder which led to the top of the water tank.  However, a metal cover, which was locked, was installed on the ladder to prevent any person from climbing to the top of the water tank without permission.

6.  On the day of the offence, a security guard of the building (PW1) was on patrol and when he reached the rooftop, he saw that the appellant was on the top of the water tank and that he was coiling a section of barbed wire around the top of the vertical ladder, which was situated in the common area of the rooftop.

7.  PW1 dashed forward and the appellant went away at once.  PW1 climbed up the ladder (there was no evidence which showed how he could manage to climb to the top of the water tank via the vertical ladder when the metal cover was locked) but the appellant was gone.  PW1 went to the other side of the top of the water tank and looked down to the appellant’s flat roof.  What he saw was that the appellant was watering flowers.  The appellant denied that he had climbed to the top of the water tank.

8.  PW1 noticed that a section of the barbed wire on the railings above the appellant’s flat roof was cut away.

9.  The prosecution alleged that the appellant criminally damaged the barbed wire belonging to the incorporated owners.

Defence case

10.  The appellant was not represented.  He elected not to give evidence and not to call any witness.  It can be gleaned from the tenor of his cross-examination of PW1 that his case was that he had not been to the top of the water tank of the building on the day of the offence and that he accused PW1 of “setting (him) up”.

Appellant’s mental condition

11.  After the prosecution closed their case, the magistrate took the view that the appellant was “speaking in a somewhat incoherent and confused manner”.  Judging from what the appellant said and the manner in which he spoke, the magistrate wondered whether there was anything wrong with his mental condition and whether he was capable to understand what a trial was.  The magistrate adjourned the case and in the meantime he remanded the appellant at Siu Lam for the purpose of calling for psychiatric reports.

Additional evidence

12.  The appellant applied to the court for production of additional evidence, which was:

(1) The defence case, which the appellant had already written out at the time of the trial and which he had asked the magistrate several times to read;

(2) The appellant’s record of interview; and

(3) PW1’s written statement.

13.  In relation to (1), the appellant said that he had written out the defence case in advance in the form of a letter, intending to submit it at the trial to the magistrate for him to consider, but the magistrate took no notice of his request and that therefore the magistrate was not aware of the following: his case was that the chairman of the incorporated owners used his official position to take revenge on him for a private grudge and that was the root cause of this case; and when the police officers arrived at the scene to investigate, they treated him unfairly in the course of arresting him.  Out of the blue, the magistrate adjourned the case and remanded the appellant at Siu Lam for obtaining psychiatric reports.  The appellant submitted that the content of the letter was highly relevant to his defence and the appeal.  He sought to produce it as additional evidence.

14.  As for (2), the appellant said he had already pointed out at the trial that the police had treated him unfairly, so he did not sign the record of interview.  The prosecutor did not produce the record of interview but the police officer concerned gave evidence about what the appellant said in response under caution, and that response was exactly within the content of the record of interview which the appellant firmly refused to sign and which had not been produced.  The appellant urged the court to read the record of interview.

15.  As regards (3), the appellant submitted that the evidence given by PW1 in court was different from the narration he made in his written statement.  Although the appellant raised this point with the court during his cross-examination of PW1, the magistrate failed to fully understand the challenge made by the appellant; the appellant therefore ask the court to admit the written statement as additional evidence.

16.  Having considered the special circumstances of this case, I allowed the aforementioned documents to be produced as additional evidence.

Grounds of appeal

17.  Mr. Eric Cheung, the legal representative of the appellant, put forward the following grounds of appeal:

“1. The magistrate committed a material irregularity, thereby undermining the fairness of the trial, in that he, in the course of the trial, suddenly revoked the appellant’s bail and remanded him in custody for 14 days for obtaining psychiatric reports without a sound legal or factual basis and without giving the appellant a prior warning or reasonable opportunity to explain.

2. The magistrate misunderstood the appellant’s case and excessively interfered with the cross-examination conducted by the appellant, so that the trial was rendered unfair because the appellant was not able to defend himself in accordance with the principle of fairness and impartiality.

3. The conviction in this case is unsafe and unsatisfactory.”

Ground of appeal (1)

18.  Mr. Cheung referred to the transcript and maintained that the reason for the magistrate’s making such an unusual decision was that he misunderstood the appellant’s case, not that the appellant displayed any sign of mental disorder.  In fact, the appellant had drawn up his case long ago but the magistrate refused to read the appellant’s document.  He even suddenly revoked the appellant’s bail without giving him sufficient warning or reasonable opportunity to explain, and ordered the appellant to be remanded in custody for 14 days to call for psychiatric reports.

19.  Mr. Cheung submitted that even if the magistrate doubted whether the appellant’s mental condition was such that he was fit to conduct his defence, he could have adjourned the hearing and extended the appellant’s bail, while at the same time called for psychiatric reports or allowed the appellant to seek legal representation.  He should never have revoked the appellant’s bail suddenly and passed judgment on him before the trial concluded.

20.  Mr. Cheung further said that the offence in this case was of a minor nature and that a conviction would only attract a fine.  However, the magistrate deprived the appellant of his liberty by remanding him in custody for 14 days for no good reason.  Mr. Cheung asserted that the Government or the Judiciary should of its own motion grant ex gratia compensation to the appellant.

Ground of appeal (2)

21.  Mr. Cheung referred to the transcript and submitted that the magistrate, due to his misunderstanding of the appellant’s case, excessively interfered with the appellant’s cross-examination, thereby undermining the fairness of the trial.  The appellant’s ground of defence was that when he was serving as a committee member of the incorporated owners, he had objected to the chairman’s proposal for carrying out some unnecessary repair and maintenance projects.  Therefore, revenge was taken on him by framing him up and that was the root cause of this case.

22.  The appellant accused PW1 of fabricating his evidence out of thin air, but when the appellant was cross-examining PW1 in order to show that his evidence was not believable, the magistrate intervened so many times that the appellant was prevented from presenting his case clearly to the magistrate and from drawing the court’s attention to the discrepancies between PW1’s oral evidence and his written statement.

23.  Mr. Cheung submitted the following authorities for me to consider in what way a trial magistrate should assist an unrepresented defendant:

(1) R v Tam Kin Wing [1997] HKLBD 333;

(2) HKSAR v Yu Chi On, HCMA 140/1999; and

(3) HKSAR v Tong May Ching [transliteration of 湯美清], HCMA 121/2011.

24.  Mr. Cheung also relied on a case tried by me: HKSAR v Chan Yick Wing [2011] 2 HKLRD 293, to explain how to determine whether a magistrate had excessively intervened in a case.

Relevant legal provisions about a defendant’s fitness to be tried

25.  Section 75 of the Criminal Procedure Ordinance, Cap. 221 of the Laws of Hong Kong provides that:

“(1) This section applies where on the trial of a person the question arises (at the instigation of the defence or otherwise) whether the accused is under a disability, that is to say, under any disability such that apart from this Ordinance it would constitute a bar to his being tried.

(2) The court, if having regard to the nature of the supposed disability is of opinion that it is expedient so to do and in the interests of the accused person, may postpone consideration of the said question (hereinafter referred to as “the question of fitness to be tried”) until any time up to the opening of the case for the defence, and if before the question of fitness to be tried falls to be determined the jury return a verdict of acquittal on the count or each of the counts on which the accused person is being tried that question shall not be determined.

(3) Subject to subsection (2), the question of fitness to be tried shall be determined as soon as it arises.

(4) The question of fitness to be tried shall be determined by a jury, and ——

(a) where it falls to be determined on the arraignment of the accused person, then if the trial proceeds the accused person shall be tried by ——

(i) where paragraph (a) of the definition of “court” is applicable, a jury other than the jury which determined that question;

(ii) in any other case, the same jury which determined that question;

(b) where it falls to be determined at any later time, it shall be determined by ——

(i) where paragraph (a) of the definition of “court” is applicable, a separate jury or the jury by whom the accused person is being tried, as the court may direct;

(ii) in any other case, the same jury by whom the accused person is being tried.

(5) A jury shall not make a determination under subsection (4) except on the written or oral evidence of 2 or more registered medical practitioners (of whom not less than 2 shall be psychiatrist on the Specialist Register established under section 6(3) of the Medical Registration Ordinance (Cap.161)).

(6) In this section ——

“Court” (法庭) means ——

(a) the Court of First Instance acting in the exercise of its criminal jurisdiction;

(b) the District Court acting in the exercise of its criminal jurisdiction; or

(c) a magistrate;

“verdict of acquittal” (無罪的裁決) does not include a special verdict that the accused person is not guilty by reason of insanity.

(7) In this section, any reference to a jury shall, where the trial concerned takes place in the District Court or before a magistrate, be read as a reference to a District Judge or the magistrate, as the case may be.”

26.  In addition, section 51 of the Mental Health Ordinance, Cap. 136 of the Laws of Hong Kong provides that:

“(1) (a) If a court or magistrate is of the opinion that any person who is charged before the court or magistrate with an offence, including a person in respect of whom an information or charge for an indictable offence is being heard or has been heard by the magistrate in accordance with the provisions of Part III of the Magistrates Ordinance (Cap. 227), or who has been convicted but not sentenced of an offence being, in the case of a conviction by a magistrate, an offence punishable on summary conviction by imprisonment or an indictable offence of which the magistrate has convicted the accused summarily, may be or is alleged to be a mentally incapacitated person, the court or magistrate may remand such person ——

(i) to a mental hospital; or

(ii)  …

(iii) …

(iv) …

for observation, investigation and treatment for any period not exceeding 14 days and on the making of any such order shall adjourn the proceedings against such person for such period and may extend such period of 14 days by further periods of 7 days each so that the total period of remand does not in any case exceed 42 days.

(b) …

(c) …

(d) …

(2) (a) A court or magistrate may, in lieu of remanding a person under subsection (1), admit him to bail in accordance with the periods specified in subsection (1) on his procuring or producing such surety or sureties as the court or magistrate thinks fit.

(b) In the case of any person admitted to bail under paragraph (a) it shall be a condition of the recognizance ——

(i) that he shall undergo observation, investigation and treatment by a medical officer at such mental hospital or Government psychiatric clinic or Hospital Authority (within the meaning of the Hospital Authority Ordinance (Cap. 113)) psychiatric clinic as may be specified in the recognizance; or

(ii) that he shall undergo observation, investigation and treatment by a suitably qualified medical practitioner named in the recognizance.

(c) In the case of any person admitted to bail under paragraph (a) it may be a condition of the recognizance that the person reside in a mental hospital for the purposes of observation, investigation and treatment for such period, within the period specified in the recognizance, as may be required by the examining medical officer or medical practitioner.

(d) Notwithstanding any other provision of this Ordinance, where arrangements have been made for the reception of any person so required to reside at a mental hospital for the purposes of any observation, investigation and treatment he may be admitted to the mental hospital.

(e) Where a court or magistrate is satisfied by information on oath that a person admitted to bail under paragraph (a) has failed to observe any of the conditions of the recognizance taken under this subsection the court or magistrate may issue a warrant for the apprehension of the person; and the recognizance may be enforced in like manner, as a recognizance may be enforced under the Criminal Procedure Ordinance (Cap. 221) or under Part II of the Magistrates Ordinance (Cap. 227), as the case may be.

(3) …

(4) …”

Discussion

27.  Before I deal with the two grounds of appeal, I will first give an account of what happened before the magistrate.

28.  The offence involved in this case was a minor one.  The prosecution alleged that the appellant had previously climbed to the top of the water tank to fly kites, and that on the day of the offence he damaged the barbed wire put up by the incorporated owners.  In view of the minor nature of the offence, the magistrate had explained to the appellant that if the prosecution and the appellant agreed to dispose of the matter by way of binding over to be of good behaviour, then the appellant would not have any criminal record.  The outcome was that the appellant declined to admit damaging the barbed wire, so the trial proceeded.

29.  Actually, the appellant had drawn up the defence case long ago but the magistrate refused to take a look at what the appellant had written. I did not have before me the transcript of the relevant conversation; however, I have listened to the relevant conversation in court.  The appellant and the respondent agreed that the following record of the conversation is correct:

“11:43 am 19 April 2011

Defendant: Your Worship, there is something which

Court: What is it?

Defendant: I hope you would approve.

Court: What is it?

Defendant: If I speak a lot, too much of your time might be taken up, so I have written… I have written something for Your Worship to have a look, so as to give you some idea of what it is about, to make it easier for you to reach a decision.

Court: At this stage, I’ll take no notice of it whatsoever. The trial is a grim（冷酷）process. Just now I have explained this process to you, because you said…

Defendant: It is just about the facts of this case.

Court: I will take no notice of it whatsoever.”

30.  In fact, besides this occasion the appellant had on a number of other occasions during the trial asked the magistrate to have a look at his “document”, but was refused every time by the magistrate.

31.  I can see that the magistrate failed to understand the appellant’s defence at all.  What the appellant said was that there had been disputes between the chairman of the incorporated owners and him, and that on the day of the offence he did not climb to the top of the water tank to fly any kite at all (though he had done that before).  According to him, at the material time he was just watering flowers on the flat roof of his unit and did not do what the prosecution witness/witnesses alleged.  Because the magistrate did not understand the appellant’s case, he did not understand either what the appellant was aiming at when he was cross-examining the prosecution witness/witnesses.

Ground of appeal (1)

32.  I have read the transcript and have listened to the recording of the trial, but I really am not able to detect any instance of the appellant speaking “in an incoherent and confused manner” or hear anything which sounds like the appellant having any mental problem.  Of course, I could only rely on reading the transcript and listening to what was said between the appellant and the magistrate, and could not observe what bodily movements the appellant made at that time.  I noticed that the magistrate from time to time told the appellant to sit down (At that time since the appellant was cross-examining the prosecution witness/witnesses, he did not appear to be doing anything improper by standing up).  The magistrate also told the appellant that he would be “laughed at” by other people (page 71 O to V of the appeal bundle).  I have no idea if there was anything else, other than the magistrate’s subjective opinion that the appellant spoke in an incoherent and confused manner, which could afford the magistrate a reason to suspect whether the appellant had the capacity to understand what a trial was.  I am of the view that if the magistrate had a good understanding of the defence case at the time, he would not have held the opinion that the appellant spoke in an incoherent and confused manner.

33.  I do not think that the magistrate cherished any bad intention when he said the appellant might lack the capacity to conduct his defence.  However, the matter which caused me serious concern is that the magistrate remanded the appellant at Siu Lam Psychiatric Centre for 14 days for obtaining reports.  At that time the magistrate said (page 94 P to R of the appeal bundle):

“Court: ... Come back at 9:30 on 25 May. In the meantime I will call for two psychiatric reports on you defendant, to see whether you are fit to stand trial. Well, in the meantime it is regrettable that you have to be remanded at Siu Lam. Right, we can deal with it in chambers. We shall meet again on 25 May, right.” (my emphasis)

34.  Even though the magistrate said “it is regrettable”, he still remanded the appellant at Siu Lam.  Obviously, the magistrate did not consider the option that he could admit the appellant to bail while waiting for the reports.  It must be that the magistrate was concerned for the well-being of the appellant; that was the justification for his calling for the reports to ascertain whether the appellant had the capacity to stand trial.  However, in order to do so he remanded the appellant in custody for 14 days, which meant that the appellant was deprived of his liberty for 14 days.

35.  The damage involved in this case was of a minor nature and the appellant had a clear record.  Even if he was found guilty, the punishment he received would not be imprisonment.  As a matter of fact, after the magistrate convicted himhe fined him and ordered him to make compensation.  The magistrate not only failed to consider if it was necessary to remand the appellant in custody and if there was good reason to doubt whether the appellant would be willing to undergo observation when he was on bail, but he also failed to give the appellant any prior warning of his intention to remand him in custody so as to give the appellant an opportunity to make any submission.  The respondent drew my attention to the fact that at the hearing after the reports were submitted to the court, the magistrate did explain to the appellant why he was not allowed bail before that.  However, I think this way of doing things shows that the magistrate became wiser only after the event.  If he had really considered whether he should admit the appellant to bail, why did he not tell the appellant about this there and then to let the appellant know what his reasons were and make submission?

36.  A magistrate has wide powers at his disposal.  When dealing with a defendant who acts in person, particular attention must be paid if he is minded to exercise his powers in any way which will result in the defendant losing his liberty.  A magistrate must ensure that a trial is conducted fairly and that no defendant is deprived of his personal freedom [arbitrarily].  At the trial of any case, the defendant concerned is presumed to be innocent under the law unless and until he is found guilty.  If the magistrate intends to remand the defendant in custody, there must be cogent and compelling reasons.

37.  In this case, there was no information of any kind which indicated that the appellant would pose any threat of any danger to himself or any other person.  It is regrettable that the magistrate simply remanded the appellant in custody for 14 days without giving any thought to the option that the appellant could be admitted to bail and still could undergo observation. What the magistrate did was very unfair to the appellant.

Ground of appeal (2)

38.  Different judges have expressed different views on the topic of in what way a trial magistrate should assist a defendant, but basically all the judges agree on the principle that a trial must be conducted fairly.  I endorse the judgment given by Deputy High Court Judge To (as he then was) in the case Yu Chi On:

“ On the passive side, his duty is to ensure a fair trial in the overall interest of justice. This includes the duty to ensure that the rules of practice and procedures are properly observed at the hearing; to ensure that the defendant would not be prejudiced by his lack of legal representation, to ensure that only admissible evidence would be admitted against him.

On the active side, he should assist the defendant to test the prosecution case.  This includes assisting the defendant in cross-examining prosecution witnesses.  He must do so with great caution. To be able to assist the defendant, he has to enquire from him what his case is about, bearing in mind the risks I have referred to above.  Furthermore, over zealous cross-examination may be counter productive. It may strengthen the prosecution witness’ credibility or even destroy the defence case altogether. ...”

39.  I also endorse Deputy High Court Judge Li’s view in Tong May Ching:

“14. ... Before the trial began, the magistrate should have tried to understand what grounds of defence the appellant had. He should have identified what the main issues were, should have helped the appellant as far as possible to organize her arguments and narrow down the issues. This was a difficult task. A magistrate should ensure that the trial proceeds fairly and is required to balance the interests of the parties to the case.”

40.  A magistrate is faced with an arduous task when he is dealing with an unrepresented defendant. The magistrate must remain neutral but must also provide appropriate assistance to the defendant.  Most likely a defendant is lack of legal knowledge.  When he cross-examines a witness, he may “make statements” instead of “asking questions”. The magistrate should be patient and try to understand as much as possible what the defendant wants to say, and then translate the statements made by the defendant into questions and put them to the witnesses concerned.

41.  In this case, actually the appellant had prepared this defence case long ago but the magistrate just repeatedly said he would “take no notice of it whatsoever” and did not give the appellant any opportunity; that was the reason why he did not understand the appellant’s case.  Because of that, he intervened again and again when the appellant was conducting his cross-examination, so that the appellant could not put his case to PW1 or the police constable/constables.  Even though the appellant made a clear complaint that there were discrepancies between PW1’s written statement and the evidence he gave in court, the magistrate still reproached the appellant for “making a speech” (page 73 O to R of the appeal bundle).  The result was that the appellant did not say anything further about this.  What the magistrate should have done was to help the appellant to put the discrepancies to PW1.

42.  After listening to the audio recording of the trial, I have the impression that the magistrate repeatedly criticized the appellant for wasting time and did not allow the appellant to make a complete response when he asked him certain questions.  There were not a few occasions on which once the magistrate intervened the appellant said he would withdraw the question he was asking.  I was driven to the conclusion that the appellant did not have a fair trial.

43.  There is one more matter on which I would like to comment.  Before the appellant was remanded in custody for 14 days, he had made allegations about the improper conduct of the police, which were expressed in rather strong language (with reference to which the magistrate described the appellant as “speaking in a somewhat incoherent and confused manner”) (page 93 D of the appeal bundle).  After he was remanded in custody for 14 days, he told the magistrate that he would not cross-examine the police officer/officers concerned and that he elected not to give evidence.  It appears that the 14 days remand had influenced him to a certain extent as to how he would conduct his defence.

44.  In Chan Yick Wing I have discussed some authorities about whether a trial judge had excessively intervened in a trial so that the fairness of the trial was affected.  I find that in this case the reason for the magistrate’s intervention was that he misunderstood the defence case and that the appellant, who was not good at expressing himself, did not know how to bring out his case properly during his cross-examination.  In my judgment, the conduct of the magistrate was such that it would have caused an informed bystander to think that the appellant had not had a fair trial.

45.  For the above reasons, I allow the appeal, quash the conviction and set aside the fine.

Application for ex gratia compensation

46.  The appealing party originally asked me to consider whether the appellant is entitled to ex gratia compensation paid by the Government orthe Judiciary.  During the hearing on 1 December, Mr. Cheung agreed that he had no ground to support the application for ex gratiacompensation paid by the Judiciary.  Mr. Cheung also clearly stated that the appellant did not intend to claim compensation from the Government through civil proceedings, and that the appellant only asked me to make a recommendation in my judgment that the Government should consider granting ex gratia compensation to him.

47.  At the hearing on 1 December, the responding party was not able to give me any assistance in respect of this issue, and I asked both parties to make written submissions.

48.  Subsequently, the appealing party submitted some documents about granting of compensation by the government to persons wrongfullyimprisoned, including a “Legislative Council Panel on Administration of Justice and Legal Services Information Paper on Matters Arising from the Panel’s Meeting on 28 April 2003” and a document entitled “Compensation for Persons Wrongfully Imprisoned, Information for Claimants”, for my reference. As requested by both parties, a hearing was held on 12 December for both parties to make oral submissions.

Relevant administrative guidelines

49.  According to the Legislative Council Panel on Administration of Justice and Legal Services Information Paper, the administrative guidelines for granting compensation are as follows:

“(a) Compensation may be payable to a person convicted of a criminal offence who has spent time in custody and has received a free pardon because his innocence has been established or his conviction has been quashed following a reference to the Court of Appeal by the Chief Executive or an appeal out of time.

(b) Compensation may be payable where a person has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority. For example, refusal of bail because of incorrect information given to the court by the prosecutor or the police, or police suppression of material evidence which would have helped to exonerate a convicted person. Compensation may also be payable on this basis where the wrongful act was that of a judge or magistrate but, to preserve the perceived independence of the judiciary, payment in such cases should only be made on the recommendation of the judiciary itself.

(c) Aside from guidelines (a) and (b), compensation may be payable in outstandingly deserving cases even where the loss was not caused by a wrongful act or omission by a public authority.

(d) Compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge.

(e) Compensation may be refused where there is serious doubt about the claimant’s innocence, based on the argument that it would be repugnant to pay compensation out of public funds to a person who is probably guilty but, for example, whose conviction was quashed on a mere technicality.

(f) Compensation may be refused or reduced proportionately where the claimant is wholly or partly to blame for his misfortune; for example, he deliberately withheld evidence which would have demonstrated his innocence.

(g) From the perspective of public policy or administration, extending compensation beyond guidelines (a), (b) and (c) to persons who have suffered loss in the ordinary course of the criminal process (for example, to those to whom guideline (d) applies) would have substantial cost and other resource implications.  There would be a much larger number of potential claimants and a tribunal or some other special machinery would be required to investigate each case and distinguish the claimants who are very probably innocent from those who were lucky to escape conviction.”

50.  According to the Information for Claimants, the Government is prepared under certain circumstances to pay compensation to those who have spent time in custody following a wrongful conviction or charge.  There are two compensation schemes, one under statutory provisions (Article 11(5) of the Hong Kong Bill of Rights enacted under the Hong Kong Bill of Rights Ordinance, Cap. 383 Law of Hong Kong) and the other under administrative arrangements.

51.  The arrangements for ex gratia payments are as follows:

“5. … the Government may make an ex gratia payment, in certain exceptional cases, where the claimant has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority. This might be the case, for example, when bail was refused because of incorrect information given to the court by the prosecutor or the police, or where police suppressed material evidence which would have helped to exonerate a convicted person. Compensation may also be payable on this basis where the wrongful act was that of a judge or magistrate, but payment in such cases should only be made on the recommendation of the judiciary.”

52.  The following procedures for applying for the compensation are set out in the Information for Claimants:

“6. Applications should be made in writing to the Department of Justice, 23rd Floor, High Block, Queensway Government Offices, 66 Queensway, Hong Kong. Alternatively, you may apply by fax at (852) 28772353 or by e-mail to dojinfo@doj.gov.hk.

7. There is no standard application form. Applications should include the applicant’s full name, date of birth, place and date of conviction and details of charge, the circumstances in which the conviction was reversed or the charge dropped, and the reasons why the applicant considers that compensation is due to him or her. Where charges were dropped it would be helpful to know which police, ICAC or correctional services unit was involved.

8. The Department of Justice will consider any application which is made, examining it as appropriate under the statutory provisions and the ex gratia arrangements. The Department of Justice will make the final decision as to whether an application qualifies for payment, and if so, the amount of payment after considering the circumstances of the individual case. It is not the Government’s normal practice to publish details of individual awards.”

Discussion

53.  Both the appellant and the respondent made submissions on the question of whether I should at the time of my dealing with this appeal, also consider the appellant’s request that a recommendation be made by me or the Judiciary to the Government for granting ex gratia compensation to the appellant.  The appellant submitted that the application should be dealt with in this appeal and that the decision and the reasons therefor should be stated in the judgment.  The respondent, on the other hand, argued that the appellant’s request was about administrative arrangements made by the Government and had no connection with the appeal, and that I should not deal with his request in this appeal.

54.  The appealing party and the respondent also made submissions about how to interpret paragraphs (b) and (c) of the administrative guidelines (paragraph 49 of this judgment), and about whether the English case of R (on the application of Raissi) v Secretary of State for the Home Department [2008] 2 All ER 1023 (a judicial review case involving similar provisions) is applicable to the circumstances in Hong Kong.

55.  After careful consideration, I take the view that the matter which I am supposed to deal with is the appellant’s appeal against his conviction, which I have allowed, and I have to give my reasons here.  Whether a successful appellant will make an application to the Government or whether the Judiciary will make a recommendation in his favour to the Government about ex gratia compensation has nothing to do with the appeal at all.  Whether the Government will grant ex gratia compensation to the appellant is entirely within the scope of the Government’s administrative arrangements.  An appeal hearing is not the appropriate occasion or channel for an appellant who may claim for the compensation in question to make an application for such compensation.

56.  For the above reasons, I am not prepared to deal with the appellant’s application or the interpretation of paragraphs (b) and (c) of the administrative guidelines.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.