HKSAR v. HA CHI MING SUMMER

HCMA5/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.5 OF 2001

(ON APPEAL FROM SPCC 4126/2000)

---------------

--------------

-------------------------

J U D G M E N T

-------------------------

1. The appellant was convicted on 17 November 2000 of one count of criminal intimidation and a second count of theft. He was sentenced to 15 months on each count reserved concurrently. He appealed both conviction and sentence but, at the commencement of today's hearing, abandoned his appeal against sentence. The appeal was dismissed upon that abandonment.

2. The facts relied upon by the prosecution were that on 17 November 2000, the victim in this matter PW1 who was a nurse had left a course at Kwong Wah Hospital about 9 pm. After leaving the course, he was intercepted by two men who accused him of having earlier purchased compact discs with counterfeit money. He was taken to McDonald's in Waterloo Road on foot where he was asked to show his ETC cards. They were claimed to be counterfeit. Various conversations took place and incidents took place when one of which the appellant was attacked, he said, and a fight took place in McDonald's.

3. They went to another McDonald's restaurant in Mongkok again on foot and the appellant, it is said, repeatedly asked PW1 if he passed counterfeit money. PW1 said he was then taken to a nearby ETC machine to check whether his ETC card was genuine and the sum of $100 was withdrawn. Later, he was taken to other ETC machines and his cards were checked, he having two cards, to see if they were genuine. Notwithstanding that, he said, the appellant still denied that they were genuine as they were said to be thinner than the real cards and he was persuaded to give up his cards to friends of the appellant who said he would take away to see if they were genuine. Later, he went to Mongkok to retrieve the cards but refused to go further when he overheard a telephone call that knives and tools were to be brought to some place.

4. The appellant's evidence was that he was owed money by a woman named Wong Man Yee and that she was known PW1 and that from PW1, $30,000 in total was obtained by the use of credit cards and that was given to the appellant to satisfy the debt of Madam Wong. PW1 disagreed that he lent a sum of $30,000 by using his credit card, that was put to him that he made up the whole story because his wife came to know the $30,000 was missing this he denied.

5. The first ground of appeal is that the learned magistrate rejected the appellant's evidence without giving reasons or sufficient reasons. The appellant's convictions being unsafe and unsatisfactory. The magistrate was brief in his reasoning. He said that : "I did not believe that PW1 had agreed to assist his 'girlfriend' by lending her $30,000 HK dollars and then a few hours later concocted a convoluted story to explain to his wife the missing money." and further said that : "I did not believe the defendant's testimony at all and I reject it." He gave no specific reasons for that rejection.

6. The second ground of appeal is that the magistrate wrongly rejected the appellant's evidence since the appellant was given no or no proper opportunity to cross-examine to explain why his evidence should not be believed. Mr Loftus argues that the full case of the prosecution was not put to the appellant when he gave his evidence. He refers me to the case of Lo Chun Nam v. HKSAR, Final Appeal No.6 of 2000 where the learned Chief Justice said :

"What concerns us here is the question : were there deficiencies in the way the prosecution was conducted and were all the issues properly dealt with by the magistrate and fully considered by the Court of First Instance - bearing in mind the So Yiu Fung test."

The test in So Yiu Fung v. HKSAR is set out by Bokhary PJ as follows :

"In order for an appeal brought under the 'substantial and grave injustice' limb of s.32(2) of the Hong Kong Court of Appeal Ordinance to succeed, it must be shown that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice."

7. Mr Loftus complains that at the time of the prosecution and in the hands of the prosecuting authorities, there were bank statements relating to the cards taken from PW1 which showed that a total of $30,000 was drawn from his accounts on 17 and 18 April 2000.

8. Further, there are withdraw slips to show that $10,000 was withdrawn from a Hang Seng Branch just before mid-night and a further $10,000 from a Hongkong and Shanghai Bank Branch just after mid-night on 17 into 18 April 2000.

9. He argues that this was evidence in the hands of the prosecution which was material to the case and which may have been a benefit to the defence and which was not given to the defence at the time of prosecution. Particularly, he argues that had the magistrate had before him evidence to indicate that a total of $30,000 had been withdrawn from the account at the times alleged by the appellant that $30,000 was paid to him to repay the loan he may have taken a different view of the credibility of the appellant.

10. Mr Man, for the respondent, argues that it would have made no difference although he concedes that there was a duty upon the prosecution to have handed this material to the defence.

11. I am of the view that if the material could have made some difference to the magistrate's view of the credibility of the appellant, then it ought to have been in the hands of the defence and not have done so, must leave me with some doubt as to whether justice has been done in this particular case.

12. Accordingly, the appeal is allowed and the conviction is set aside.