HKSAR v. CHAN CHAU WING

HCMA217/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 217 OF 2010

(ON APPEAL FROM ESCC 4316 OF 2009)

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REASONS  FOR  JUDGMENT

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1. On 11 February 2010, the appellant was convicted after trial of one charge of criminal intimidation, contrary to section 24a(i) of the Crimes Ordinance, Cap. 200.  

2. The appellant was unrepresented in his trial.  On that day the magistrate adjourned sentencing to 24 February.  On 24 February Mr Phillip Swainston, solicitor appeared.  He applied to the magistrate pursuant to section 104 of the Magistrates Ordinance, Cap. 227 to review his decision to convict the appellant.  Having heard the submissions in support of that application the magistrate refused the application.  Mr Swainston then advanced a number of matters in mitigation.  Having heard the mitigation the magistrate sentenced the appellant to be imprisoned for 3 months.  

3. On 30 April 2010 I allowed his appeal against conviction and stated that I would hand down my reasons in due course.  These are my reasons.

4. The particulars of the charge alleged that the appellant on 28 March 2009, in Hong Kong threatened a Filipino female Tangarorang Jessamie Mendrez with injury to her person, with intent to alarm her. 

5. The complainant, PW1 was a domestic helper who had previously been employed by the appellant’s wife.  It was her evidence that at approximately 7:45 p.m. on 28 March 2009, she received a telephone call where she was then living.  She recognised that it was the appellant who was speaking to her.  It was her evidence that during the course of the call the appellant said to her : “I know where you live.  I know where Wah Fu and Apleichau are.  You ruined my life.  I will take revenge on you for what happened to me.  I will kill you if I see you.”  She was scared by the telephone call and the matter was reported to the police the following day.  There were other calls made over the next day or so. 

6. The police interviewed the appellant in response to the complaint.  He acknowledged that he had made 5 telephone calls to PW1 and said that on 4 of those 5 occasions he had recorded the conversation using his mobile telephone which he the gave to the police.  It was not in issue in the trial that there was no threat by the appellant in those recorded calls. 

7. The appellant gave evidence.  He told the court that PW1 had been employed as a domestic helper in January 2008.  He said that she was “very evil, told lies and had framed him”.  He told the magistrate that she had made his life miserable and that her allegations of him threatening her were “ridiculous”.  He said he did not know where she lived and by reason of that how could he possibly contemplate killing her. 

8. The magistrate was alert to the fact that the critical evidence against the appellant was that of PW1.  The evidence of the telephone calls recorded in the appellant’s telephone did not provide support for the allegations.  There was no issue in the trial that the appellant had made calls to the complainant over the relevant period.  The appellant said in the course of his evidence that he had in fact telephoned PW1, seeking to obtain from her admissions that she had framed him in earlier criminal proceedings.  He denied that because she did not respond to these requests that he had threatened her or that he wanted to take revenge. 

9. The magistrate found PW1 to be an honest and reliable witness and accepted her evidence.  He said that she had given a clear account of what had occurred during the relevant telephone calls.  He emphasised that he disregarded any reference that had been made in the course of the trial to the previous incident involving PW1 and the appellant.  (In the course of the sentencing process on 25 February 2010, it emerged that the appellant had in June 2008 been convicted of three counts of indecent assault and three counts of criminal intimidation, and total terms of imprisonment of five months had been imposed.  The victim in those cases had been the complainant in these proceedings.)  The magistrate rejected the evidence of the appellant.  He observed that throughout his evidence, the cautioned statement and those excerpts of the telephone calls which had been recorded he bore a significant animosity towards PW1. 

10. From the above it is apparent that this was a straight forward matter which in the main part depended on the veracity of PW1.  It was not a complex or difficult trial.  However in my opinion the trial miscarried.  The appellant did not receive a fair trial and as a consequence the conviction could not stand. 

The grounds of appeal

11. The substance of the perfected grounds of appeal were that the appellant, unrepresented at his trial, did not receive a fair trial because the magistrate :

(i)      inhibited his cross-examination of witnesses;

(ii)      prevented him from making a no case to answer submission; and

(iii)     did not permit him to complete his final address. 

These are very serious allegations.  I have therefore examined the whole of the transcript of the proceedings with those complaints in mind. 

12. Whilst it is not specifically pleaded as a ground of appeal my attention had also been drawn to one further matter in support of the ground that the appellant did not receive a fair trial.  This was the refusal at the outset of the trial of an application by the appellant for an adjournment.  I will deal with this matter first.  

13. On the morning of the trial the appellant wanted to apply for an adjournment.  The following exchanges appear in the transcript of the proceedings :

“COURT:  Thank you.  How many witnesses are there?

MR CHAN:  Six in total.

COURT:  Okay, thank you.  And have you got any witnesses here today, because the trial’s going on now?

DEFENDANT:   I’ve got a witness, it’s just my wife.

COURT:  Okay, well, if she’s here, she can give witness -- she can give evidence.  But, if she’s -- I’m proceeding now with the trial.  Now, because you’re unrepresented, I’m going to explain to you the procedure that’s going to happen at this trial that’ll commence now. 

DEFENDANT:  (In English) I beg your pardon -- some adjournment ...

COURT:  No, no, keep it to Chinese, please, keep it to Chinese.

DEFENDANT:   I would like to apply for an adjournment.  I would like to give my submission now for the adjournment?

COURT:  No, you will not get an adjournment, the matter has been adjourned a couple of times already, you have been represented off and on by other lawyers., you’ve had ample time to get legal advice, I’m not giving you’re an adjournment, application refused.  Now listen to what I say about the trial that’s going on now. 

DEFENDANT:  Could you, please, allow me to finish my submissions first, because I have a reasonable argument.  Because this case has been affecting me and my family very much. 

COURT:  As I said, your application is refused.  I’m going to do the trial now.  Now, you have pleaded not guilty to one charge of criminal intimidation.  It is going ...

DEFENDANT:  (In Chinese) ...

COURT:  Defendant, be quiet.  Thank you.  I’m explaining to you the procedure of what’s going to happen, the trial is going on now.  You’ve had ample opportunity to get a lawyer, you haven’t, and you chose to be represented and the matter has got no ...

DEFENDANT:  (In English) But I have to  -- please ...

COURT:  No, listen to me, now, please.

DEFENDANT:  (In English) It’s not so hard, I want to adjourn.

COURT:  Listen to me.  Now, as I was saying before I was rudely interrupted, you have been charged with one count of criminal intimidation.  It is going to be alleged that you have a relationship with - or for a former domestic helper of yours, and because of an incident that occurred, you rang her up and, amongst other things, threatened her whereby she was intimidated.  That is what is going to be alleged.  Now, you have denied that and pleaded not guilty. 

          Now, the prosecution must prove the fact upon which they rely, so that I’m sure of those facts you don’t have to prove anything and the prosecutor will try to prove that by calling various witnesses who’ll give evidence in the witness box.  Only what is said in the witness box is evidence upon which I will rely in making a decision. 

          You are to clearly understand that if you are found guilty after a trial, you will not be entitled to any discount with respect to sentence that you would have been entitled to had you have pleaded guilty from the outset. 

          Now, you listen carefully to the evidence of the witnesses and at the end of each of their evidence you have the right to cross-examine them, and you do that by asking them questions about their evidence and you may question them on any aspect of their evidence and anything else that’s relevant.  You may find that you disagree with some or all of what they say, and when you question them, as well as any other questions you may have for them, you should ask them about those parts that you disagree with, and you suggest to them what you say really happened and see if they agree or disagree with that, that’s cross-examination.

          Now, you do not protest or shout out if they something you disagree with, you wait until the end of their evidence and then you ask them questions about it.  Because you’re unrepresented, as far as I can, I will help you wit the procedure, but I cannot conduct your case for you, and so I have rule on the matter in due course. 

          As the trial proceeds, you will have further rights, which I’ll explain to you at the time, and if at any time you’re not sure about something you ask me and I’ll help you as much as I can.  Yes, or no, do you understand what I’ve just said?

DEFENDANT:  Yes, I understand.  Well, and on 23 October I’ve already contacted with three lawyers ...

COURT:  Okay, defendant, I’m not involved in that now, your application has been refused.  Sit down, I’ll give you pen and paper and you can copy notes.  First witness, please.  Sit down.

Thank you.  First witness.”

14. The magistrate made no enquiry of the appellant as to why he wished to apply for an adjournment.  He refused to listen to the appellant’s attempt to explain his request.  He rejected, without proper assessment, what may well have been a properly made application.  He assumed without a proper basis that the appellant was applying to adjourn the matter to obtain representation. 

15. The magistrate was wrong to do this. 

16. In the course of the appeal I was advised that the trial was originally fixed for hearing on 10 November 2009 but could not proceed because the appellant’s then counsel was unwell.  

17. The matter was re-fixed for 23 December 2009.  The matter could not proceed on that day as the appellant’s legal representatives had withdrawn.  The appellant therefore applied for an adjournment.  The appellant told the court that he would be appearing himself and was in the process of obtaining or attempting to obtain an expert opinion as to the recordings on his mobile telephone.  The matter was re-fixed for 11 February 2010.  There is nothing exceptional or unusual in the above.  The appellant had on one occasion only applied for and obtained an adjournment. 

18. The next complaint is that the appellant was not permitted to complete his cross-examine of PW1. 

19. It is necessary to reproduce the relevant parts of the transcript of the appellant’s cross-examination of PW1 to appreciate the complaint. 

20. In the passages that precede the parts of the transcript re-produced below it is clear that the appellant had repeatedly put his questions to PW1 on the basis that she was lying.  The magistrate attempted to explain to him that she had rejected that suggestion several times.  The magistrate however had attempted to put the appellant’s questions to her as he appreciated them to be :

“DEFENDANT:  Forbear me with my clumsiness, I’m a little bit uptight, I’m feeling distressed ...

COURT:  No, no, you’re quite entitled to conduct your case ...

DEFENDANT:  Yes.

COURT:  But you can’t repeat questions.  You’ve asked her has she been lying about four or five times.  She said she isn’t lying.  A different question, please.

DEFENDANT:  I talk about your lying another times, okay, Sir -- your Worship.

Q.      I put it to you that you lie another time again, because you said first ...

COURT:  Okay, thank you, thank you, sit down, sit down.

Q.      No, no, one call, I’m asking the question is that you received a call.  So did you -- I heard you saying -- testify earlier you said ‘a call’, does you mean there was a call on Saturday?

COURT:  ‘Did I threaten you just on the one occasion, or did I threaten you on a number of occasions?

DEFENDANT:  No, no, that’s my -- not my question, Sir.

COURT:  No, no ...

DEFENDANT:  No, no, I beg your pardon for my clumsiness, my question is, ‘Did you receive only a call because -- let me refer to your Worship, the statement that PW1 ...

COURT:  Just put the question, please, defendant.

DEFENDANT:  Yes, I’m referring the question to her, Sir, your Magistrate.

Q.      Is that in the she write down, I put to you?

COURT:  Did you make a statement to police?

Q.      Did you make statement on 29 March?

A.      Yes, Sir.

COURT:  And did you set out the circumstances of this phone call about the threats in that statement?

A.      Yes.

COURT:  Thank you.

          Yes, any other question?

Q.      Did you say in the statement there is -- may I refer you to the --你喺嗰個statement嗰度講-- in the statement you said you received a call, a phone call - you know English, a phone call, it’s only one phone call without caller display to my phone number 67748676.

COURT:  Don’t repeat the evidence.  What’s the question?

Q.      The question is, did you receive one call only?

A.      No.

Q.      Did you say you received a phone call, that means one phone call, and then that in the phone call in 1947 hour, 28 March, you received a call and then in the call alleged -- you lied and said that somebody -- you alleged somebody say – ‘I know where you live, you lived in Wah Fu and Ap Lei Chau, you ruined my family, I will arrange I will kill you’, did you receive a call in 1947 hour?

COURT:  That’s her evidence.  That is -- that’s exactly what she said.  She said ‘I received the call’ from you, ‘at 1747, I know where you live and I’m going to kill you’, that’s what her evidence is.

DEFENDANT:  Yes.

Q.      No, I’m asking you, is it this phone call at 1947 hour, a call, one phone call that you received the fact?  I put it to you is it the -- is it the question ...

COURT:  That -- that’s irrelevant, sit down defendant, she’s already answered that.  Sit down.

DEFENDANT:  So the point ...

COURT:  Sit down, that is it, you are not asking any more questions with respect to the ...

DEFENDANT:  No, no, I have the right to say -- one or two or three phone call -- she said a phone call.

COURT:  No -- that’s right, sit down  Sit down, please.  Thank you, you’re just repeating and going on.

DEFENDANT:  I beg your pardon.

COURT:  Did -- was there only one threat made, one phone call with threats made?  Or was there more than one phone call with threats made on this day?

          I’ll ask the question for you.

DEFENDANT:  Thank you.

A.      More than once.

COURT:  More than once on the one day.  Thank you very much.

Sit down -- sit down, defendant, thank you, sit down.

DEFENDANT:  I have -- I have ...

COURT:  No, no, you’ve got no more questions ...

DEFENDANT:  I have a ...

COURT:  You’ve had enough questions, thank you very much, sit down.  You’re repeating yourself, sit down.  She’s already denied ...

DEFENDANT:  I’m sorry, I will not repeat anymore.  If I have caused trouble, I’ll ask ...

COURT:  You haven’t got any trouble, you just keep repeating and going on.

DEFENDANT:  I don’t repeat, I’m sorry, I will tell another question.

COURT:  Well, ask a different question then, please ...

DEFENDANT:  Thank you, thank you.

COURT:  ... otherwise -- and I’m not going to -- this is going to -- I’m just going for five minutes, if you’re going on the same manner that you’re going on now ...

DEFENDANT:  I’m sorry.

COURT:  ... I’m going to excuse the witness.

DEFENDANT:  I’m a professional accountant, I’m ...

COURT:  No, you know exactly ...

DEFENDANT:  I don’t know ... (indistinct), I’m sorry.

COURT:  .. the procedure, you know exactly what is happening, defendant.  Any other questions?

Q.      I put it to you that -- did I ever -- did you ever tell me your address that you live in Wah Fu and Ap Lei Chau?

COURT:  ‘Did you ever tell me your address in Ap Lei Chau’?

A.      No.

Q.      So, I put it to you that you did not pull it -- you didn’t tell me the address so I don’t know where you live ...

COURT:  No, she can’t answer that.

Q.      Do you agree or not?

COURT:  She can’t answer that.

DEFENDANT:  Okay, thank you.

Q.      My question, is the address of -- your address is usually keep confidential by the social worker, I think, do you know your address in Wah Fu and Ap Lei Chau?

COURT:  That’s rejected, any other question?

DEFENDANT:  No, I mean did PW1 know the address, if she herself didn’t know, how do I know?

Q.      Did you know the address of your -- your address?

COURT:  ‘Do you know how I found out your address’?

INTERPRETER:  Sorry, Sir?

COURT:  ‘Do you know how I found out your address’?

Q.      Can you tell me your address in Ap Lei Chau?

A.      I don’t know.

COURT:  Thank you.

Q.      Sorry?

COURT:  Anything else?

DEFENDANT:  No, I can’t hear the answer.

COURT:  She said, ‘No’ ...

Q.      So if you -- I put it to you ...

COURT:  She doesn’t know how you found out her address.

Q.      I put it to you that even she don’t know how do I know, it’s ridiculous ..

COURT:  Sit down, defendant, sit down.  Defendant, sit down, please.   Sit down.

Any questions in cross-examination -- re-examination?

MR CHAN:  (No audible answer)

DEFENDANT:  Yes, I have cross-examination.

COURT:  Thank you, you’re excused now.

DEFENDANT:  No, please, your Honour, please, just give -- I have a lot of questions.

COURT:  No, you’ve asked all your questions.

DEFENDANT:  I’m sorry if I’m repeating, it’s a very serious matter to me in respect of the law.

COURT:  Of course it’s very serious, it’s a ...

DEFENDANT:  Would you please let me ask the question.

COURT:  Of course it’s a very serious charge.

DEFENDANT:  Yes, it’s very serious, I have to put my complete innocence.

COURT:  You have put -- you’ll get your opportunity shortly.

DEFENDANT:  May I ask a question to -- she’s the most important witness.

COURT:  What’s the most ...

          All right, sit down, sorry.

          What’s the most important question, ask that?

DEFENDANT:  No, no, not one person, I mean she’s the most important witness.  The point is -- so even PW1 don’t know the address -- I’ll do that in the sum up.

COURT:  Come on defendant, please, please.

          ‘I put to you that you have made all this up to frame me’.

DEFENDANT:  No ..

COURT:  No, no, that’s your case, that’s your case.

DEFENDANT:  No, I need to ...

COURT:  Thank you, put that to her.

DEFENDANT:  No, I need to put to her inconsistency.

COURT:  No, I’m putting it for you, because you won’t put it.

DEFENDANT:  Thank you, Sir.

COURT:  ‘I put that you made all this up just to frame me?’

A.      I disagree, because I am telling the truth.

COURT:  Thank you very much.

DEFENDANT:  I have one further question.

COURT:  One more question.  I’ll allow you one more question, that’s it.

DEFENDANT:  No, no, Sir ...

COURT:  No, that’s it, because you keep repeating yourself over and over again.

DEFENDANT:  I’m sorry if I repeating, no longer repeat ...

COURT:  We’ve been going now for about 45 minutes and you’ve asked one question.

DEFENDANT:  I’m sorry, all right, let me ask her.

COURT:  One question, that’s all.

DEFENDANT:  That’s the rule ...

COURT:  You’ve only asked one question in 40 minutes – 40 minutes and you’ve asked one question.

DEFENDANT:  That’s not the way to do justice, Sir.

COURT:  That is the way that justice works in this court.

DEFENDANT:  Maybe I ask ...

COURT:  If you haven’t any questions I’m going to ...

DEFENDANT:  I have a lot of questions, I can -- let me, your Worship, to ask ...

COURT:  No, I will not let you go on like this.

DEFENDANT:  Yes, Sir.

COURT:  Thank you, madam, you’re excused.

DEFENDANT:  No, no, I haven’t asked my question ...

COURT:  Sit down.

          Constable sit him down -- sit him down, sit him down.

DEFENDANT:  ... you said -- you said, you promised one question, Sir.

COURT:  Thank you, you’re excused, madam, thank you very much.

          Call your next witness, please, call your next witness.

          Thank you very much, you’re excused, madam.

          Call your next witness, thank you.

DEFENDANT:  (TO PW1 AS SHE LEAVES COURT) Why are you smiling?  Somebody threaten you?

MR CHAN:  The prosecution calls ...

COURT:  Defendant, if you -- I can put you in custody.  If you carry on the way you’re carrying on now, I will have you put into custody.  Now just sit there, please ...

DEFENDANT:  Yes, Sir.

COURT:  .. and listen to the next witness.  You’ll get your opportunity to give your evidence at the conclusion of the prosecution case, thank you very much.  You will not control this court, I do.

DEFENDANT:  Yes, Sir, I know, Sir.

COURT:  Thank you.”

21. In the first part of this portion of the transcript the magistrate was emphasizing correctly that the appellant had suggested, several times to the witness that she was lying a suggestion she had consistently rejected.  The magistrate attempted to formulate the questions the appellant appeared to wish to ask but was, it appears losing patience with him. 

22. When the subject of the witnesses statement to the police is raised by the appellant.  The magistrate does not appear to appreciate the appellant’s intention — which was to demonstrate that she had given a different account in part to the police. 

23. Towards the end of the passages above the appellant refers to the need to put inconsistence to the witness.  

24. It suffices to say that in the above passages the appellant was undoubtedly emotional and distressed and the magistrate had a difficult task.  However the end result was that he inhibited his attempts to put to the witness those inconsistence that he had detected as between her evidence-in-chief and witness statements.  In the end he threatened to put the appellant in custody — this should not have happened.  The impression one is left with is of the magistrate initially attempting to assist the appellant to formulate his questions but thereafter losing patience with him and in so doing inhibiting his cross-examination. 

25. The next matter of concern is this.  At the close of the prosecutions case the appellant indicated that he wished to make a no case to answer submission.  The transcript reveals the following exchanges :

“DEFENDANT:  I would like to make a submission for a no case to answer.

COURT:  No, defendant, stand up, please, stand up.

          That is the evidence that the prosecutor intends to put before me and on the basis of that evidence, there is evidence upon which you may be convicted of the charge, but I have not yet decided whether or not I should convict you. 

          Can you ...

INTERPRETER:  Yes.

COURT:  You now have the right to remain silent, that is, you need to say nothing if you do not want to, or you may give evidence if you wish.  If you elect to give evidence, you must go into the witness box and affirm or swear to tell the truth, and if you do give evidence you may be cross-examined by the prosecutor, or I may ask you questions, and whether you give evidence or not you may call witnesses, if you have any here today.  Firstly, yes, or no, do you understand that?

DEFENDANT:  Yes I understand.

COURT:  Thank you.  Now, do you wish to give evidence?

DEFENDANT:  I elect to give evidence.”

26. To appreciate the significance of the refusal by the magistrate to refuse to allow the appellant to make a no case to answer submission it is important to consider the evidence of those witnesses who touched upon the retrieval of data as to the duration of the phone calls between the telephone at PW1’s premises and the appellant’s mobile phone.  The witnesses were PW4 and PW5.  In the course of cross-examination the appellant had made reference to their positions within their respective companies.  Each had given information about the extraction of telephone call records from their employers computers.  Each in evidence had referred to a certificate prepared for the purposes of the prosecution case.  Each then proceeded to give details of the telephone calls recorded.  The appellant objected to the production of those certificates and challenged their ability/authority to obtain the relevant information.  No certificates were produced in evidence. 

27. When the appellant gave his telephone to the police when first interviewed he did so to demonstrate that he had recorded 4 of the 5 calls he had made to PW1 — and there were no threats in those recorded conversations.  One other call the 5^th was not recorded because it was too short.  The telephone call that was most relevant was the 2^nd made on 28 September.  In the recordings given by the appellant to the police this lasted for 57 seconds whereas the records of the telephone companies were that it lasted 162 seconds.  Hence the appellant’s objection to the evidence of the telephone companies representatives was important because on the face of it if that evidence was accepted then a vast amount of that particular conversation had either not been recorded or deleted. 

28. The appellant told the magistrate that he objected to the production of the certificates referred to.  The following exchange occurred :

“XXN BY DEFENDANT

Q.      Are you employed -- I put it to you that you are not in China Mobile Hong Kong working there on the time of the incident, 28 March 2008?

COURT:  March when?

Q.      Is it true you’re not working there?

COURT:  Yes, you weren’t working at China Mobile on 28 March 2009, were you?

INTERPRETER:  Excuse me, 2008 or 2009?

DEFENDANT:  I’m sorry  ...

COURT:  Yes, okay, thank you.

DEFENDANT:  I’m sorry.  I’m sorry, my -- I’m sorry, I ...

COURT:  She said she’s been working there since November 2008.

DEFENDANT:  Yes, indeed, your Worship.

Q.      I put -- my question is who is the management of the computer activities that responsible for this report, and who is the supervisor of ...

COURT:  How did you get the length of the phone calls from the computer?

A.      In the whole call record, it was also stored in the database in the Central system ...

Q.      No, no, my question is ...

COURT:  Wait there ‘till she answers my question then, thank you. 

          Yes, go on, in the database, yes?

A.      And by the time the police would like to retrieve these caller information I will use this computer system and work with the court -- with the number that the police required, and the computer system will show the number required and it’s conversation and it’s length of duration. 

COURT:  Thank you  And that’s from telephone 97361890 to 67748676?

A.      Yes, and in this way, the call record is shown.

COURT:  Thank you, yes, any other question?

DEFENDANT:  My question is I object to the admission of this computer certificate, your Worship.

COURT:  Well, it’s ...

DEFENDANT:  ... because according -- this is hearsay evidence, and admitted ...

COURT:  It is not hearsay evidence ...

DEFENDANT:  That is admitted according to evidence 22A, Sir.

COURT:  I -- it is admitted, defendant, she’s the expert in relation of retrieving ...

DEFENDANT:  No, no, she’s a clerk.

COURT:  ... and the calls show the duration of the phone call.  Your objection is overruled and it is admitted. 

DEFENDANT:  Yes, yes -- no, no, my, my ...

COURT:  Next question?

Q.     My question is according to section 28(5)(c), this certificate should be signed by your superior, the person involved -- in the prime position or management of the activities.

COURT:  Defendant, I haven’t any document before me.  There’s no document in evidence.  All she’s given is five phone calls and the duration of the phone calls went for.  That’s in evidence now.  Your objection is overruled.

DEFENDANT:  Okay.

COURT:  Any other question?

DEFENDANT:  My question is, can you explain why -- I want to admit the -- show this record to the witness, your Worship.  Why there’s so many times difference between your company’s record, China Mobile Hong Kong and my record, and also the Philippines  ...

COURT:  That is evidence which you can give shortly ...

DEFENDANT:  Which is ...

COURT:  ... I mean, she said that the phone call went for 54 seconds, 162 seconds, if you’ve only got a recording for part of that period, I don’t know why that is that you’ve only got that, but that’s how long the call went for, that’s the evidence.  Now, any other questions?

Q.      I put it to you that your company’s record is not reliable, and ...

COURT:  I put to you that your company record is wrong?

DEFENDANT:  No, no, not reliable, because sometimes the digit is two minutes, sometimes the digit is four minutes.

COURT:  No, no, it’s wrong, it’s wrong.  I put to you that your company record is wrong, do you agree or disagree?

DEFENDANT:  我可能[睜]少少.

COURT:  No, no, defendant, please, please. 

DEFENDANT:  I’m sorry, your Worship.

DEFENDANT:  唔係，係可以...

COURT:  Defendant, I won't warn you again.  I’ve told you what’s going to -- what can happen to you.

DEFENDANT:  Yes, very well.

COURT:  Thank you.

A.      Disagree.

COURT:  Thank you.

Anything else?

Q.      (In Chinese) ...

COURT:  What’s his -- what’s his -- what?

INTERPRETER:  Who ...

Q.      Who is the management or the ...

INTERPRETER:  Or the supervisor.

Q.      ... supervisor of this computer generating activities?

COURT:  Who feeds the information into the computer?

A.      Anyone would add -- would add every single entry into the computer and, basically, the system will have a record when the computer pull in or out.

COURT:  Thank you, yes, thank you.

Anything further?

Q.      But who is the manager of this activity?  I guess it’s not you?

COURT:  Do you know who manages the computer?

A.      Are you talking about my working computer or the whole computer system?

Q.      I’m talking about the manager of the capture -- how the data was applied the capture, and then process in the call that you said earlier, did you understand the question?  The call that you said earlier and feed into the report that you said, 即係呢個人負責...

COURT:  Defendant, defendant, what she said is that every ...

DEFENDANT:  Who’s the manager?

COURT:  ... call that’s made is recorded the duration, they obviously have to do that so that they can bill someone in relation to the amounts of minutes or seconds used.  So that’s how they keep the record.

DEFENDANT:  No but section 22(5) ...

COURT:  So they said 54 seconds, 162 seconds, 135, 15 and 154 was from your phone to the phone of PW1, that’s the evidence.  Now, I ...

Q.      Who is the manager of the -- these activities?

COURT:  She said it’s all fed into a computer in relation to bill people.

DEFENDANT:  Yes, the capturing and the billings ...

COURT:  Who is responsible to capture that?

DEFENDANT:  No, who is the manager, so that we know the control, the sufficiency, of the ...

COURT:  She does, she works in that section, defendant.

DEFENDANT:  She didn’t do the system design, the implementation ...

COURT:  Thank you, anything further - anything further?

DEFENDANT:  ... the application software and how the data was applied ... (indistinct) and process the report? 

Q.      Who --邊個係嗰個--呢個程序嘅主管?

COURT:  Do you know that?

A.      I’m not clear about it.

COURT:  Thank you.

Q.      係咪有一個主管...

COURT:  Anything -- she said she’s not clear about that, that’s her evidence.

Q.      Is there - is there a manager?

COURT:  Thank you, she said she’s not clear about that.  Anything further?

DEFENDANT:  That will be all, Sir.

COURT:  Thank you. 

Okay, you’re excused, madam.  Thank you.

Is that your case?”

29. Of this witness the magistrate said :

“PW4 is a clerk from China mobile.  He is responsible for computed records of calls.  He had examined the records and found 5 calls had been made from the appellant phone to that of PW5 phone between 28-29-3:2009.  The second of those phone calls was for 162 seconds.  In cross-examination PW4 admitted that he got the length of the calls he gave evidence about from the computer records of his company.  The record of his company is reliable ….”

The next witness was :

“PW5 - Clifton Lau                                                  Sworn in English

XN BY MR CHAN

Q.      Mr Lau, you’re now a technical support manager of the Philippines Long Distance Telephone Hong Kong Limited?

A.      Yes.

Q.      And you were asked by the police to make a certificate in relation to the call records of a number 67748676?

A.      Yes.

Q.      Between 28 and 29 March 2009?

A.      Correct.

Q.      Is this your certificate that you made?”

The certificate was not produced in evidence as an exhibit and yet in the magistrate’s reasons for verdict he said :

“PW5 who is a technical support manager of the Philippines Long Distance Telephone Hong Kong Limited was called over.  He produced a certificate showing the above 5 call records from the appellant to PW1’s phone on the relevant dates.”

30. He then gave evidence about 5 telephone calls made on 28 and 29 March 2009.  

31. He gave no evidence as to his expertise or the means by which he extracted this information.  The appellant’s cross-examination was along similar lines to that taken with the previous witness.  He appeared to be testing the admissibility of the evidence and also its reliability :

“XXN BY DEFENDANT

Q.      Mr Lau, can you tell me when were you employed in Philippines Long Distance Company?

A.      I was employed last 25 September.

COURT:  Sorry, December?

A.      September.

COURT:  September when?

A.      25th.

COURT:  5 September ...

A.      25th.

COURT:  When?

A.      2009.

COURT:  And 8?

A.      2009.

COURT:  Okay, 25 September 2009.  Thank you.

Yes?

Q.      My question is the statement you are putting in now is you are certifying a find information which is prior to your employment at the day of 28 March ...

A.      Yes ...

COURT:  This was information that you were required to retrieve before you -- about calls made before you ere employed in Long Distance?

A.      Yes, correct, that’s true.

COURT:  Yes?

Q.      But the ordinance said that you -- according to ...

COURT:  The certificate hasn’t been produced to me, defendant.  He’s only given his evidence.  Now, is there any other questions?

Q.      Yes, I think I -- what the point I might make is --即係喺嗰個-- the point I make is that you’re not employed at the time when the calls were ...

COURT:  He’s already said that, he wasn’t employed at the time ...

DEFENDANT:  And then the second point I’m trying to make, Sir, Your Worship, bear with me, my clumsiness, is that ...

Q.      Can you tell me why the starting time is sometimes two minutes, sometimes -- between your company and China Mobile Hong Kong, the company that I used to call you, can you tell me why sometimes -- I can say that, I can understand that there may be some time when the time when the time is not exactly right, sometimes -- for example, the first call China Mobile is 1951 hours, but your record is 1953 hours.  If you refer to your ...

COURT:  Can you tell -- can you ...

Q.      No, no, but my question is ...

COURT:  Defendant, please ...

DEFENDANT:  I’m sorry.

COURT:  I’m trying to assist you ...

DEFENDANT:  Thank you.

COURT:  Can you tell us why there may be a time variation ...

A.      Here.

COURT:  ... between your Long Distance Telephone Limited and China records?

A.      I believe that our system and China Mobile system, the system time of those system is not, how do you call it, it’s not getting the time from a same source.

COURT:  So there might be some seconds variation?

A.      Yes, yes, or minutes.

COURT:  Yes, okay, thank you.  Yes,  okay, thank you.

DEFENDANT:  Yes, thank you.

Q.      What I mean is I can understand there is some time different ...

A.      Yes.

Q.      ... but shortly after that, the time difference was initially 1951 in the China Mobile Company, but in your company it’s 1953.

COURT:  Yes, he’s already said that ...

Q.      And my question is, but how come suddenly, for example, in your last record in the day afterward, the China Mobile Hong Kong 29 March show the starting time is 1904, but the Philippine your company, Ah Sir, show -- Mr Lau, show 1908, the difference now is four minutes ...

COURT:  Do you know why that would be?

Q.      ... you see sometimes the difference is two minutes, sometimes it’s three minutes, and sometimes it varies in my record as well, I also have a phone record, sometimes the difference is exactly the same, sometimes it’s two minutes, and sometimes the difference is five minutes.

COURT:  Can you explain -- okay, can you explain that?

A.      I can -- I cannot verify which time is correct, if it’s our time or it’s China Mobile’s time.

Q.      I cannot hear.  Can you speak louder, Sir?

COURT:  But the ...

A.      But, I think the ...

COURT:  But the length of the call is always the same?

A.      The duration should be correct, yes, it should be the duration.

COURT:  So there might be a variation about when it’s recorded ...

A.      Yes.

COURT:  ... but the length of time is always the same?

A.      Duration, yes, the duration -- correct, the duration of the call.

COURT:  Thank you, thank you. 

Q.      But it’s not possible ...

COURT:  So he’s saying that it varies a couple of minutes, but he says the length of the duration of the call is always the same.  Thank you, anything else?

Q.      But you -- the starting time and the end time is different, how come the duration is the same, I mean the ... (indistinct) I start -- the -- like the first call, the China Mobile Hong Kong start in 1951 ...

COURT:  Can you explain that?  Even though the time is different ...

Q.      The start and finish is different.

COURT:  ... why would it be the length of the time -- length of the call would be the same, why is that?

A.     Because it’s based on the switches when those switches send a call and signal, because at first, when the calls begins or calls set up, it will send us a signal from the switch to our system, it will indicate that a call is being set up or initiated, and the for the duration of the call, we are just waiting for the call and signal for us to record those ...

COURT:  To record the call end?

A.      Yes.

COURT:  Okay, thank you very much.

Q.      And then you have the end of the -- do you have the end of the record time?

…”

32. The appellant, a layman, obviously had some knowledge of the provisions of the Evidence Ordinance, Cap. 210.  He appears at one stage to be referring to section 22A.  The thrust of his cross-examination appears to be that there had not been strict compliance with that provision or that the information that the two witnesses were providing was not within their expertise to give.  However imprecisely and however incorrectly he appeared to be laying the foundation to challenge the admissibility of this evidence, the magistrate’s response was to cut him off. 

33. The significances of that is this.  Rightly or wrongly with or without merit he was entitled to make submission as to the admissibility of the evidence which properly should have been made at the end of the prosecution case.  It may be, I do not know that he was intending to submit that if this evidence was rejected then PW1’s evidence standing alone could not be accepted. 

34. The appellant was not given that opportunity.  I do not now know what submission he would have made.  It is not for me to speculate as to that.  What is clear is that he should have been given that opportunity — he was not. 

35. The appellant elected to give evidence and called one witness his wife. 

36. At the conclusion of the evidence in the defence case the following exchange took place :

“COURT:  Thank you.  Step down, please, Madam.

Stand up, defendant.  That is all the evidence.  I’ve heard all the evidence.

DEFENDANT:  I need to make my submission now.  I need to make a final submission.

COURT:  Defendant, I have listened to you all day.  Stand up.  Listen, do the courtesy of listening to me, please.

DEFENDANT:  I beg your pardon.

COURT:  And stop interrupting.

DEFENDANT:  I didn’t know the legal procedure, sorry.

COURT:  Thank you very much.  I’ve heard all the evidence now and I have to make a decision with respect to the matter. 

Now, is there anything that you wish to submit to me, by your word, to alert me to any parts of the evidence before I make a decision?

DEFENDANT:  I would like to make some final submission ...

COURT:  Final submission?

DEFENDANT:  ... after the ...

COURT:  No, make it now, please.

DEFENDANT:  It may take quite while, I mean the submission ...

COURT:  Start, start, I’ve got all day, come on.

DEFENDANT:  ... may need a hour -- this document would at least take a one hour.

COURT:  Start.  What submissions have you got?  I have heard all the evidence.

DEFENDANT:  Okay, I answer.

COURT:  What do you wish to say in submissions?

DEFENDANT:  The submission is I did not say those stupid, foolish words.

COURT:  I did not say the words, okay.

DEFENDANT:  It’s a stupid, ridiculous allegation that had ...

COURT:  Stupid ...

DEFENDANT:  ... put me into very deep distress since the first day.  I have been trying to seek counsels and police, and the point is I didn’t know where she lives.  Your Worship, actually, she’d been -- keep asking me for money and that’s probably one -- I don’t know why she made these allegations, but you see, I didn’t know where she lives and she herself didn’t know how can I kill her, if somebody invisible?  She’s just ...

COURT:  Okay, thank you defendant.

DEFENDANT:  And then the telephone number is because she filed a complaint, she notified the employer ...

COURT:  Okay, okay.

DEFENDANT:  ... of certain injury.  I need to ...

COURT:  Thank you.

DEFENDANT: ... this submission, as a exhibit.

COURT:  Now, I’ve heard ...

DEFENDANT:  That’s how I know the ...

COURT:  I’ve got all the evidence now.  Now, you listen to what I say, defendant, just sit -- stay there and listen to what I say.

DEFENDANT:  I haven’t said ...

COURT:  I have heard and carefully considered the matter.  I have also considered the submissions made by you.

I found PW1 to be a very honest and reliable witness, and I accept what she says.  She gives a very clear account of what occurred, and I believe her.

DEFENDANT:  I haven’t point out to the ...

COURT:  Defendant, do me the courtesy, please, of listening to me.  I have listened to you all morning and your -- and the case, and I am doing my ruling now.  Please do not interrupt me.

As I was saying, she gives a very clear account of what occurred, and I believe her.  I disregarded any reference that she made in respect of a previous matter, and certainly nothing adverse flowed to you from that, that is, there was some reference to prison, et cetera, there.  I disregarded that completely and did not enter my mind, and nothing adverse flowed to you from that.  But as I said, I believe her and what she said.

It is very clear from the phone calls, or part of the phone calls, that were in court, of the way you felt at the time, that is very evident from the calls.  And I am convinced that I have only part of the call there, before me, in evidence, and not that part where I am satisfied that you said words, to the effect, ‘I know where you live, you’re living in Wah Fu, Ap Lei Chau, you ruined my family, I want revenge, I will kill you’, and that’s what you said.

INTERPRETER:  Please read out the part.

COURT:  I will -- I know where you live, you are living in Wah Fu, Ap Lei Chau, you ruined my family, I will revenge, I will kill you.

DEFENDANT:  We want justice.

COURT:  Defendant, please, I gave you the courtesy of listening to you, do me the same courtesy, thank you ...

DEFENDANT:  But I haven’t point out the inconsistency ...

COURT:  Defendant, thank you very much.  Do me the courtesy of listening, please, I am delivering my short reasons for my verdict.

I also accept the evidence of PW2 who took the cautioned statement which, you agreed, was made by you voluntarily, and it is quite evident from that, and I do not accept your denial of saying words to the effect, ‘I will revenge, I will kill you’, I do not accept that.  But the tenor of this, here, is exactly the same as the tenor of your voice in the phone calls, or the part of the phone calls, that’s before the court in evidence.  It is very obvious to me you showed great animosity to PW1, that’s evident right through this and right through the part of the phone call that I have listened to.

And because of that, you said the words you did say, that I have just quoted ...

INTERPRETER:  Sorry, Sir, can you ...

COURT:  And because of that animosity, you said the words to the effect, inter alia, ‘I will kill you’, and she was rightly scared and intimidated by those threatening words.

I have heard and carefully considered your evidence.  You did not impress me in the witness box, I do not believe your version of events, and I reject it.  But one thing that was crystal clear in the giving of your evidence is the great animosity you have for PW1, which is riddled through this cautioned statement, through the phone call, and your evidence in the witness box.  And it appears that the reason that you said what you did say was because of your frustration of the silence on the other end, the virtual silence on the other end.

I have heard and carefully considered your witnesses’ evidence.  Your wife, she doesn’t take the matter any further at all; you told her what you were going to do, she wasn’t there at the relevant phone call, so she doesn’t take the matter any further at all.”

37. The appellant was for all intents and purposes stopped from making a final submission.  He may I do not know have had a document prepared to read from.  Whatever was the situation he was not permitted to address the court. 

38. This was not a fair trial.  

39. The appellant was improperly refused his application for an adjournment.  His cross-examination of PW1 was curtailed.  He was not permitted to make a no case to answer submission and his final submissions were, when he was eventually permitted to make them curtailed. 

40. I allowed the appeal quashed the appellant’s conviction and set aside the sentence.