HKSAR v. GAO HEJIA

HCMA779/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.779 OF 2002

(ON APPEAL FROM WSS 913 OF 2002)

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J U D G M E N T

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1. This is an appeal against conviction only. The appellant was convicted after trial of an offence of careless driving, contrary to section 38(1) of the Road Traffic Ordinance, Cap.374. The appellant was unrepresented at his trial.

2. The facts of the case found by the magistrate were that the appellant drove his car from a housing estate car park exit into Shing Tai Road in Heng Fa Chuen. A small goods vehicle driven by PW1 was at the same time proceeding from right to left past the car park exit along Shing Tai Road.

3. The appellant's car had been stopped at the car park exit immediately before the goods vehicle driven by PW1 passed in front of the exit. But as the goods vehicle did so the appellant's car drove forward partly into Shing Tai road and, in doing so, collided with the left rear side of the goods vehicle.

4. The appellant's case did not really dispute these basic facts. He simply said he had looked along Shing Tai Road to his right for some 30 seconds before emerging and had not seen PW1's vehicle approaching. He had then started to drive out onto Shing Tai Road intending to turn right but had then stopped after emerging into the road to allow another vehicle to proceed along the far lane of the road ahead of him. Whilst stationary he had been struck by the goods vehicle driven by PW1 attempting to pass at high speed across the front of his stationary vehicle.

5. He gave another reason for the collision. He said all persons driving out of the car park at that point had their view obstructed by a watchman's box situated on their right hand side. He said as a result he could see to the right, when checking to see there was no oncoming traffic, only a distance of between 3-8 metres.

6. The appellant's defence at trial was accordingly that he had taken all possible care in the circumstances and that the collision had come about as a result of a combination of three factors. Firstly, the restricted view of Shing Tai Road to the right of the car park exit; secondly, the fact that he had had to stop two-thirds of the way into Shing Tai Road to allow the other vehicle to proceed; and thirdly, PW1's attempt to cause his goods vehicle to pass across the front of the appellant's vehicle at speed whilst the appellant was stationary in Shing Tai Road.

7. At the end of the day the magistrate, as he was entitled to do, rejected the appellant's version of events, accepted PW1 as a witness of truth and found that the appellant had carelessly failed to pay attention to oncoming traffic from his right side when he left the car park, and then commenced to drive into Shing Tai Road into the path of PW1's goods vehicle.

8. The appellant while unrepresented at trial is now represented before me by Mr Fong of counsel. He has provided a number of grounds of appeal but without doing them any injustice they can all be grouped into the one complaint that the prosecution failed to disclose materials which should have been disclosed at trial.

9. Those materials complained of as not being disclosed pursuant to the prosecution's duty to do so are as follows :

(a) Brief facts of the case;

(b) Statements of all the prosecution witnesses;

(c) Sketches and photographs;

(d) Conviction record of the prosecution witness (PW1).

10. Apparently none of the above materials were disclosed to the appellant before the trial. That is accepted by the respondent in this appeal. As to those items in (a) and (c) their contents inevitably would have been disclosed during trial as (a) was relied upon apparently as the prosecution's opening and the materials in (c) were, with the exception of a sketch attached to PW1's statement, exhibited.

11. But at no stage before or during the appellant's trial was he made aware of the existence or contents of any witness statements or of the record of PW1's prior traffic offences.

12. Further in regard to witness statements the appellant was particularly not provided with a copy of the statement made by a passenger in the goods vehicle driven by PW1, a Mr Leung Kin Man who, while originally intended to be called apparently by the prosecution, was in the event not called. Nor apparently was the appellant informed of the details of this person or informed that he had made a statement relating to the collision.

13. The duty of disclosure of prosecution materials in Hong Kong is governed by the common law. There is no legislation which provides for the prosecution's provision of materials to a defendant before trial such as has existed in England since 1996.

14. The common law principles relating to disclosure are general and without jurisdictional distinction. That means they apply uniformly through the range of courts in Hong Kong where criminal trials are conducted. They accordingly apply in magistrates courts as much as they apply in the District Court or the Court of First Instance.

15. Those common law rules of disclosure have evolved somewhat over the years. In Dallison v. Caffrey [1965] 1 QB 348 Lord Diplock simply stated the prosecution's duty as :

"A prosecutor's duty is to prosecute not to defend. If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or, although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence."

16. The prosecution's duty of providing material "helpful" to the defence was emphasized in R v. Hennessey (Timothy) (1978) 68 Cr App R 419 (CA) where Lawton LJ said :

"... those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence."

17. In the later case of R v. Ward (Judith) [1993] 96 Cr App R 1 (CA) which remains the leading authority on common law principles governing disclosure, Glidewell LJ said in referring to that passage of Lawton LJ's judgment :

"We would emphasise that 'all relevant evidence of help to the accused' is not limited to evidence which will obviously advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered."

And later

"The obligation to disclose only arises in relation to evidence which is or may be material in relation to the issues which are expected to arise or which unexpectedly do arise in the course of the trial. If the evidence is or may be material in this sense then its non-disclosure is likely to constitute a material irregularity"

18. What was "material" and therefore disclosable was considered by the English Court of Appeal in R v. Keane [1994] 1 WLR 746, where Lord Taylor approved and adopted the following test :

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution : (1) to be relevant or possibly relevant to an issue in the case : (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use : (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

19. One of the matters relied upon by the appellant in Ward's case was the non-disclosure of some 1,700 witness statements, in respect of which it was acknowledged the vast majority had little bearing on the issues at trial. But some potentially did. And in regard to those the court said :

" It is perhaps understandable that the West Yorkshire Police should have been reluctant to burden the Director of Public Prosecutions with the statement of 1,700 witnesses, the vast majority of whom, no doubt, were unable to contribute anything really significant, but it must be made clear that the course adopted was wholly wrong and led to the suppression of information which the appellant was entitled to receive."

20. It should be appreciated that in referring to the disclosure of "evidence", the above judgments were not restricting themselves to that in the prosecution's possession which was in itself in a form admissible as evidence, but to information, however recorded, which was or may have been material to the issues at trial and therefore "helpful" to the defence case. Such information, it seems to me, would in the normal course include the statements of the witnesses at trial.

21. One important principle which is clear from the above cases is that the prosecution's duty to disclose is pro-active. It is not a duty which needs to be exercised only upon the request of the defendant. In Ward's case in regard to scientific materials which were not disclosed to the defence the court said :

"An incident of a defendant's right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence."

22. It seems to me that logically the same comments must apply to evidence other than scientific evidence.

23. So far as the present case is concerned, as a starting point, the statements of the various witnesses called in the course of a prosecution case or intended to be called should, in the normal course, be disclosed beforehand. That is because for quite obvious reasons they will usually contain information material to the issues at trial.

24. In the normal prosecution in Hong Kong most certainly the witness statement of a substantive witness should be disclosed to the defence before that witness gives evidence, that is, before trial.

25. That was not done in the present case. The present appellant, unrepresented at trial, apparently went through the whole of the trial without being told of or provided with the statements of the witnesses who gave evidence against him. Nor was he provided with a sketch prepared by one of those witnesses and not produced in evidence. As a layman he very likely was unaware of the existence of this material and so did not request it. Indeed I am told that his lack of a request in this regard is the reason he was not provided with it. Further he was not provided with either the statement of the passenger, Mr Leung, in PW1's goods van or informed of its existence.

26. In that regard, in relation to statements of persons not called as witnesses, the court in Ward's case summarized the position as follows :

"Unless there are good reasons for not doing so, the duty should normally be performed by supplying copies of the witness statements to the defence or allowing them to inspect the statements and make copies : Lawson. Where there are good reasons for not supplying copies of the statements, the duty to disclose can be performed by supplying the name and address of the witness to the defence."

27. In my judgment to allow the appellant's trial to proceed in the absence of service of any witness statements upon him was wrong. There is a positive duty upon the prosecution to disclose such material and all witness statements including diagrams or sketches prepared by the witnesses should have been disclosed to the appellant. That is a basic procedure adopted without question in the District Court and the Court of First Instance. I do not see any reason in principle as to why it can be ignored in the magistracy.

28. Further in the possession of the prosecution was a record of the previous traffic conviction of PW1. This also once obtained by the prosecution should have been disclosed to the appellant. It was something which may have been material to the issue of the nature of PW1's driving at the time of the offence. The fact that its admissibility or relevance may have been strongly challenged by the prosecution should the appellant have tried to adduce it in evidence at trial does not matter. So long as it may have tended to assist the appellant in the preparation and conduct of his defence, it should have been disclosed.

29. So far as the brief facts of the case are concerned that is a document which is prepared by the officer in charge of the case for the information of the prosecutor and the court. It is in the normal course handed up to the court at the commencement of the prosecution case as something equivalent to a written opening.

30. Any document provided to the court sitting as a tribunal of fact during a criminal trial, whether it is an exhibit, aide memoire or written submission should, as a fundamental matter of procedure and fairness, be provided also to a defendant. In the present case the whole of the contents of the prosecution's written opening, in the form of the summary of facts, if provided to the presiding magistrate should have been disclosed to the appellant.

31. Accordingly in the present case there was non-disclosure of a considerable range of material which should have been disclosed to the appellant.

32. The form of the disclosure which should have taken place is not in itself important. It can in my view be done in a number of ways, from providing copy documents to simply allowing the defence to view the document. Whether information has been adequately disclosed is a question of fact in the circumstances of a particular case.

33. But in my view in the present case the prosecution were in breach of its duty to disclose information which quite obviously may have been material to the conduct of the defence.

34. In saying this it seems to me also that where a lay defendant is unrepresented in the conduct of his defence it would be desirable for the court to take some initiative to ensure that the prosecution has taken adequate steps to properly disclose the materials in their possession to the defendant. That may mean no more than reminding the prosecution of their duty in this regard.

35. What then was the effect of the prosecution's failure to comply with its duty of disclosure in the present case?

36. In Ward's case a distinction was drawn between the failure of the prosecution to disclose material which should have been properly disclosed to the defence before trial and the effect of such non-disclosure. Not all non-disclosure of material evidence results in an unfair trial. That is because as the issues developed during the trial the evidential material which was not disclosed may quite plainly be seen to have been such as to have no effect on the outcome of the trial or the fairness of its conduct.

37. Before any breach by the prosecution of its duty to disclose information in its possession which may be material to the defence rebounds against a conviction it must be shown that the non-disclosure resulted in some unfairness or injustice to the defendant's case and, for the purpose of the present appeal, did so within the terms of section 119(d) of the Magistrates Ordinance, Cap.227.

38. Mr Fong in argument before me was able to advance two principal matters in respect of which he said his client was disadvantaged by the prosecutions failure to discharge its duty of disclosure.

39. He says firstly that the appellant was not able to satisfactorily cross-examine the prosecution witnesses because he was not provided with their statements or the sketch attached to PW1's statement which differed from the sketch prepared by the police officer who attended the scene and which was exhibited in evidence. It is true a comparison of those sketches does show some difference in the position of the appellant's vehicle at the time of collision.

40. Further so far as the witness statement of Mr Leung Kin Man was concerned, the passenger in PW1's goods vehicle, Mr Fong says that there were significant differences in the contents of that statement to the version of events given in the evidence of PW1.

41. Miss Wong for the respondent before me suggests that that is not so and that Mr Leung's statement is consistent with the evidence of PW1. Both Mr Fong and Miss Wong may be right on the basis of different possible interpretations of the contents of Mr Leung's statement and to some extent what mileage the appellant may have made in cross-examination on the basis of the contents of the witness statements generally is somewhat speculative. But I think the real point is that the appellant was at least entitled to have the sketch attached to the statement of PW1 and the contents of Mr Leung's statement disclosed to him so he could attempt to cross-examine on the basis of perceived inconsistencies in them. In my view that is particularly true so as to enable him to test that interpretation put forward by Mr Fong of Mr Leung's witness statement either in cross-examination of PW1 or by way of calling Mr Leung.

42. As said by the court in Ward's case even with the benefit of hindsight it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance of a trial or opened up a new line of enquiry or cross-examination. It may be that the failure to disclose previous traffic convictions of PW1, and certainly the contents of the brief facts, which in any event were substantially referred to during the prosecution's opening would not have been able to be said to have resulted in any unfairness at the end of the day. But in the present case, taking all these matters together and particularly considering the failure to provide the appellant with witness statements and their attachments during the course of the trial, I am satisfied the appellant was unfairly disadvantaged in the conduct of his defence and that the conviction should be quashed. The prosecution do not request a retrial and I order none.

43. Finally, I am told that the non-disclosure which occurred in this case was, although in my view significant, nevertheless in strict compliance with the rules of disclosure adopted by the Department of Justice in its conduct of trials in the magistracy. Those rules of disclosure are reproduced at Appendix 2 at XV (3) in Bruce & McCoy, Criminal Evidence in Hong Kong. If that is so it may be wise for those rules to be reviewed, particularly so far as unrepresented defendants are concerned. I understand the present guidelines for disclosure in magistrates courts may pre-date the judgments in Ward's case and Keane's case.

44. For the above reasons the appellant's conviction is set aside.