THE QUEEN v. HWA TAK MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1165 of 1995

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J U D G M E N T

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1. This was an appeal against a conviction on two charges of doing an act tending and intended to pervert the course of public justice. The facts arose out of a District Court trial in which the Appellant was one of two defendants facing a charge of false imprisonment. One of the witnesses against him was Yeung Wai Ping. She testified in the instant case that the Appellant on two occasions coached her on the way she should give her evidence against him in the District Court trial.

2. There were two main grounds of appeal advanced by Mr Midgley, who appeared both on the appeal and in the Court below. He submitted that the principal Crown witness had failed to tell the police that at these meetings where it was alleged that the Appellant had coached her on her evidence, her husband was present. Mr Midgley submitted that that removed from the defence an opportunity to cross-examine a material witness. The simple answer to that was that though the witness had not told the police of her husband's presence she testified to it in the early part of her examination in chief. There was ample opportunity throughout the rest of the trial for arrangements to have been made to see to it that her husband was called as a witness or at least interviewed in relation to what evidence he might or might not be able to give. This was not done at the trial, and therefore it seems to me that it cannot fall from Mr Midgley now to make complaint about the absence of the witness.

3. His second ground of appeal was that it transpired in the course of the cross-examination of PW1 that she had been given an immunity. The Crown had not adduced any evidence of that. At no stage throughout the rest of the trial, despite many requests, could the Crown produce a copy of this immunity. This was an irregularity in the course of these proceedings. To withhold the terms of an immunity granted to such a witness is to prevent the defence from cross-examining the witness to the fullest extent on the benefits accruing to that witness from giving evidence for the prosecution. This is particularly significant when she is the only prosecution witness to incriminate the Appellant. I did not think that such a matter could be overlooked. I therefore allowed the appeal and ordered the Crown to supply the defence with a copy of the immunity as soon as possible.

4. No dispute arose that I should order a re-trial, which I now do, before a different Magistrate.

5. As this matter arose because of the negligence of the prosecution, I awarded the costs of the appeal to the Appellant.