MTR CORPORATION LTD v. MAK SIK PANG ROCKY

HCMA 940/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 940 OF 2010

(ON APPEAL FROM FLS 11946/2010, FLS 11947/2010,

FLS 11948/2010 AND FLS 11949/2010)

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BETWEEN

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J U D G M E N T

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1.  This Appellant was convicted after trial in the Magistracy on four summonses issued under the MTR Corporation Ordinance, Cap. 556. He was convicted of the following offences all of which occurred on 9 January 2010 at Sheung Shui MTR station:

(1) Consuming food within the paid area at the station. (FLS 11946/2010)

(2) Throwing litter, eggshells, on railway premises at the station, other than in a receptacle provided for that purpose. (FLS 11947/2010)

(3) Using abusive language. (FLS 11948/2010)

(4) Failing to give true and correct particulars when required to do so. (FLS 11949/2010)

He was fined in total $4,000.00.  The Appellant appealed against conviction only on all 4 summonses.

2.  The facts of the prosecution case were given by an MTR Inspector, PW1, the sole prosecution witness.  He had been on duty in uniform at Sheung Shui MTR station at about 7 pm.  From about 5 metres distance he saw the Appellant peel an egg, throw the shell into a carton and eat the egg.

3.  The Inspector approached the Appellant, told him what he had seen and warned him that this was against MTR byelaws.  The Appellant ignored him and said, allegedly, “Fucking nonsense.  What fucking MTR byelaws do staff members carry out?” At that point PW1 warned the Appellant against using abusive language, but he responded with a long passage of abuse to the effect that “you people are only security guards” making similar comments and using obscenities throughout.

4.  PW1 told the Appellant he would be summonsed for using abusive language and asked for identification particulars which the Appellant refused to give.  After that PW1 called for police assistance.  Police arrived at 7:20 pm.  The Appellant was asked again by PW1 for identification particulars; again the Appellant refused to give them.

5.  The Appellant was identified in court by PW1 as the man he had dealt with and who had later been dealt by the police.  The Appellant cross-examined him on the basis that he had been with a friend who had used the abusive language.  PW1 disagreed, as well as denying allegations that the Appellant’s case had been handled by another colleague.

6.  The Appellant who represented himself at the hearing gave evidence.  He claimed that he had had an egg in his hands and was removing the shell when a colleague of PWI had approached him.  He attempted to eat the egg, but when the staff warned him he had put the egg in a plastic bag which he kept in his hand.

7.  According to the Appellant, PW1 arrived only 5 to 6 minutes later.  The Appellant claimed that it was not he but his friend who had used abusive language when he became upset with MTR staff.  He admitted that before PW1 arrived he had discarded egg shells into a carton below the rubbish bin which was full.  He claimed that the manner in which he was asked for his particulars was “not good” so he had refused to provide them.  Later he did provide his identification to police.  He denied abusing PW1.

8.  The Magistrate found the account given by the Appellant inherently improbable and did not believe his allegations that the evidence had been concocted by PW1.  Having directed himself correctly and having given proper credit for the Appellant’s clear record the Magistrate found that PW1 was a witness on whose evidence he could rely and convicted the Appellant.

Grounds of Appeal

9.  The Appellant filed the standard grounds of appeal on 6 December 2010, but filed amplified grounds on 28 January 2011.  The gravamen of those grounds was that the Appellant had not had a fair trial.

10.  The Appellant alleged that he had not received prosecution witness statements, other documents and CCTV footage before trial.  He alleged that the judge had not looked after his rights as an unrepresented defendant.

11.  On 19 August 2010, he had asked in court for this material, and the Magistrate had told him to approach the prosecution.  The Appellant said he had made verbal and written requests to the solicitors but had not received the material before the trial on 23 November 2010.

12.  At trial, he complained to the Magistrate but, according to him, the Magistrate began the trial without dealing with his complaint.

13.  During the trial, he requested CCTV footage of the scene but was told there was none.  His own enquiries of station staff in September 2010 had confirmed there was more than one camera at the station.

14.  The Appellant submitted that the CCTV tape was the core exhibit/evidence and suggested that it had not been produced either because of negligent omission, or because it was known to be favourable to the Appellant.  Failure to produce the CCTV tape had breached his right to a fair trial.

15.  The Appellant filed a further ground of appeal claiming that the Respondent’s solicitors purported to answer his complaints before the appeal hearing but had done so in English a language he did not understand.

16.  This was a reference to an Affidavit filed by the solicitor who had charge of the prosecution case.  The solicitor affirmed that she had forwarded Brief Facts and witness statements of PW1 to the Appellant on 16 September 2010 to the address given in the summonses, but they were returned by the Post Office marked “no such house” a few days before the original trial date on 29 September 2010.

17.  On that day, an application to re-fix the trial date was made as the prosecution witness was ill.  When told that the Appellant had not received the documents, the solicitor gave the brief facts and witness statements to the Appellant in person at the court door.

18.  The solicitor, at the request of the Appellant, had enquired about the CCTV footage but was told it no longer existed due to the lapse of time – by then more than 8 months had passed from the date of the incident.  The Magistrate was told that the CCTV footage was not available.

19.  Neither the Respondent nor the Appellant had had sight of any CCTV footage, so it was not known whether anything relevant to the incident might have appeared on it.

20.  The Magistrate in his Statement of Findings recounted how at the outset of the trial he had explained the court procedure to the Appellant, who was not represented, and had continued to do so throughout the hearing.  He was satisfied the Appellant understood what was required of him.  When the Appellant cross-examined PW1, the Magistrate assisted in formulating questions as necessary.

21.  The Appellant elected to give evidence and advanced his account that it was his friend who had used abusive language and that another staff member had dealt with him not PW1.  The Appellant did not call any other witnesses.  He did not raise the matter of the CCTV footage.  The Magistrate gave himself the appropriate directions and reviewed the evidence. 

22.  At the appeal hearing, the Appellant repeated what he said at trial blaming his friend for the abusive language.  His friend’s name was Cheung Siu-wah.  After the hearing, at my request, solicitors for the Respondent confirmed that a man by that name had been charged with 4 summonses similar to those of the Appellant.  He had pleaded guilty and was fined.

23.  This information did no more than confirm the Appellant’s account of being with a friend at the station.  That his friend had pleaded guilty did not affect the case against the Appellant one way or the other.  The Magistrate had seen and heard the witness and clearly did not accept the Appellant as a truthful witness.

24.  The Magistrate accepted the evidence of PW1 and convicted the Appellant.

25.  I am satisfied that there was no question of the Appellant being treated unfairly in relation to his trial.  The prosecution sent the relevant papers to the address in the summons – the only address available to them as the Appellant had refused to give particulars.  When they learned on the aborted trial date that the papers had not been received, the Appellant was given copies.  The request for CCTV footage was made too late for the relevant tapes to be obtained.

26.  The summonses were filed 6 months after the incident and the Appellant requested the CCTV tapes 8 months after the incident.  By that stage they had been superseded.  The solicitor advised the Magistrate at the outset of the trial on 23 November 2010 that enquiries had been made about the tapes but they no longer existed.

27.  It was for the Appellant to establish on the balance of probabilities that without the footage his trial had been so prejudiced that it was beyond the power of the judge to preside over a fair trial (HKSAR v Cheung Wai [1998] 4 HKC 249).  Neither the Appellant or the Respondent had seen the tapes and neither knew whether any part of the incident was captured on tape, nor if it had been whether it would have assisted.  As the relevant evidence was given by an eyewitness, PW1, who observed events at close quarters and who was available to be cross-examined, it is difficult to see how the absence of unviewed CCTV footage made the trial unfair.

28.  I am satisfied that the Appellant had a fair trial and that he was properly convicted.  Accordingly, I dismiss the appeal against conviction.