BRIAN ALFRED HALL v. HKSAR

FACC No. 12 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 12 OF 2008 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 621 OF 2005)

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J U D G M E N T

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Chief Justice Li :

1.  At the conclusion of the hearing, we allowed the appeal to quash the appellant’s conviction for common assault.  We indicated that our reasons would be given later.  They are now given by Mr Justice Bokhary PJ for the Court.

Mr Justice Bokhary PJ :

Prosecution’s duty of disclosure

2.  For the rationale, status, nature and scope of the prosecution’s duty of disclosure in Hong Kong, one needs only to consult the judgment which Sir Anthony Mason NPJ gave, and with which the other members of the Court agreed, in HKSAR v. Lee Ming Tee (No.2) (2003) 6 HKCFAR 336.  Particular attention should be drawn to the following propositions contained in that judgment. 

3.  Even if not attributable to any breach by the prosecutor of his duty of disclosure, the non-disclosure to the defence of relevant material can result in material irregularity and an unsafe conviction : pp 382J-383A.  The prosecution’s duty of disclosure is “based on the defendant’s common law right to a fair trial and on the principle of openness” : p.386 I.  This common law right of defendants is provided with constitutional underpinning by arts 39 and 87 of the Basic Law and art.11(2) of the Bill of Rights : p.387B-G.  The prosecution’s duty to disclose relevant material is preceded by a duty to “ascertain” what relevant material exists : p.390I.  And that is not limited to relevant material in the possession or control of the investigating agency concerned.  It extends to such material “in the possession or control of any other government department or agency if there are particular circumstances suggesting that it may have such material” : p.391B-C.  As to the scope of the duty, it is explained (at p.391D-E) that :

“The prosecution’s duty is to disclose to the defence relevant material (including information) which may undermine its case or advance the defence case.  The duty is not limited to the disclosure of admissible evidence.  Information not itself admissible may lead by a train of inquiry to evidence which is admissible : R v. Preston [1994] 2 AC 130 at pp 163-164, per Lord Mustill.  And material which is not admissible may be relevant and useful for cross-examination of a prosecution witness on credit.”

4.  All of the foregoing propositions operate in unison to constitute the accepted norm in regard to the prosecution’s duty of disclosure.  And as was laid down in So Yiu Fung v. HKSAR (1999) 2 HKCFAR 539 at p.543F-G, a sufficiently serious departure from an accepted norm provides a basis for quashing a conviction on the “substantial and grave injustice” ground provided by the second limb of s.32(2) of this Court’s statute.  This appeal, which is against a conviction for common assault, is bought on that ground. 

Circumstances

5.  Shortly stated, the circumstances are as follows.  The charge of common assault (to which the appellant pleaded not guilty) arose out of an incident which took place on 2 June 2004 in a cell at the Stanley Correctional Institution where the appellant was serving a sentence of 18 years’ imprisonment passed on him in the High Court on 23 June 1998 for drug trafficking (to which he had pleaded guilty). 

6.  At the appellant’s common assault trial before T H Casewell Esq in the Magistrate’s Court, it was the prosecution’s case that the incident consisted of an assault by the appellant on a member of the Correctional Services Department, namely Principal Officer Ho Kwok-keung, whom the appellant was alleged to have punched on the chest three times.  The defence case was that it was the other way round.  According to the appellant’s testimony, the incident consisted of an assault on him by officers of the Correctional Services Department.  He suggested that it was in retaliation for complaints made by him against them. 

7.  On 3 June 2005 the magistrate convicted the appellant of common assault as charged, and sentenced him to six months’ imprisonment consecutive to the sentence of 18 years’ imprisonment which he was serving for drug trafficking.  The appellant appealed to the High Court against his common assault conviction and sentence.  On 7 February 2006 the High Court (Deputy Judge Leong) affirmed his common assault conviction and sentence.  With leave granted by the Appeal Committee, the appellant now appeals to this Court against his common assault conviction.

Officers’ account in the witness-box

8.  In convicting the appellant, the magistrate rejected his testimony.  The magistrate accepted instead the testimony given for the prosecution by the named victim Principal Officer Ho and his subordinate Assistant Officer Tung Hung-tak.  Shortly stated, the account given by these two officers in the witness-box was to the following effect.  A newspaper had been provided by the prison authorities to the appellant for him to read and then give back after a certain time.  After that time had passed and despite being asked to give back the newspaper, the appellant refused to give it back.  They therefore entered his cell to retrieve the newspaper.  Whereupon the appellant, apparently resenting such action on their part, threw the newspaper at Principal Officer Ho and punched him on the chest three times.

Consistent with the disclosed statements

9.  That account given by these officers in the witness-box was also the account given by them in those of their statements which were disclosed by the prosecution to the defence prior to trial.  Some of these disclosed statements were statements made to Correctional Services Department, and some of them were statements made to the police.

But inconsistent with the undisclosed statements

10.  What were not disclosed were statements by each of these two witnesses to the Correctional Services Department giving a different account.  Shortly stated, this undisclosed account was to the following effect.  When asked to return an overdue newspaper, the appellant not only refused but also splashed some liquid at Principal Officer Ho.  Then the appellant tried to harm himself by repeatedly hitting his own head against the cell wall.  Principal Officer Ho entered the cell in order to prevent the appellant from continuing to harm himself in that way.  Whereupon the appellant threw a stool at Principal Officer Ho.  Other officers then came to Principal Officer Ho’s assistance.  And the appellant was subdued.

11.  Like their disclosed statements to the Correctional Services Department, Principal Officer Ho and Assistant Officer Tung’s undisclosed statements to that department were made on the day of the incident 2 June 2004.  Those undisclosed statements never came into the hands of the Police or the Department of Justice.  They only came to light long after the appellant’s conviction in the Magistrate’s Court was affirmed by the High Court.  They were therefore unknown to the courts below.  The appellant first saw them, by chance, in late September or early October 2007 during an interview at the prison hospital in relation to another matter.  He eventually obtained copies of them on 17 May 2008.  It was with those copies that he obtained the Appeal Committee’s leave to bring this appeal.

Substantial and grave injustice

12.  Where there has been non-disclosure to the defence of relevant material, the focus in an appeal against conviction is not on whether the prosecutor is to be criticised.  The focus is on the effect of non-disclosure on the safety of the conviction.

13.  In Baksh v. R [1958] AC 167 and again in Berry v. R [1992] 2 AC 364 the Privy Council stressed the importance of disclosure to the defence of prosecution witnesses’ statements inconsistent with their testimony.  As has been pointed out, the undisclosed statements in the present case were made by the witnesses concerned to the same government department as the one to which they had made some of the disclosed statements.  And the account contained in the undisclosed statements is different from the one given in all the disclosed statements.  On the Lee Ming Tee (No. 2) principles of prosecutorial disclosure, the non-disclosure of the undisclosed statements amounted to a departure from the accepted norm constituted by those principles.  

14.  Quite plainly, the departure was sufficiently serious to call for the quashing of the appellant’s conviction on the substantial and grave injustice ground.  That is so for these reasons.  As the magistrate recognised, what he accurately described as the “prime issue” which he had to determine was one of credibility.  In determining that issue in favour of the officers, he said that he found them consistent and reliable.  If the undisclosed statements had been available to the defence at the trial, the officers could have been – and almost certainly would have been – cross-examined to considerable effect on the difference between the account which they gave in the witness-box and the account contained in those statements. 

15.  To put it at its lowest, one cannot safely say that the magistrate would nevertheless have found the officers to be reliable.  Nor, still putting it at its lowest, can one safely say that his decision would have been affirmed by the High Court if he had nevertheless so found.  It is not a case of discrepancies of the type that might not be all that significant or difficult to explain.  The two accounts were wholly different.  First, they were different as to the reason why the prisoner’s cell was entered (retrieving an overdue newspaper in the disclosed account as opposed to preventing a prisoner from harming himself in the undisclosed account).  And secondly, they were different as to what the prisoner did upon his cell being entered (punching an officer on the chest three times in the disclosed account as opposed to throwing a stool at the officer in the undisclosed account).

Conclusion

16.  The foregoing are the reasons why the appeal was allowed at the conclusion of the hearing to quash the appellant’s conviction for common assault.  It should be mentioned that counsel for the respondent very properly declined to support this conviction and, indeed, offered helpful arguments for quashing it.  The lesson taught by this disturbing case is that the arrangements made by prosecutors to ensure compliance with their obligations of disclosure must be kept under regular review and operated with constant vigilance.