HKSAR v. LAI KAM WAI

HCMA538/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 538 OF 2008

(ON APPEAL FROM KTCC 7575 OF 2007)

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J U D G M E N T

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1. This is an appeal by the appellant against his conviction by Ms L.K. Loh at Kwun Tong Magistrates’ Court on one charge of criminal intimidation, contrary to section 24(1)(a) of the Crimes Ordinance, Cap. 200.

2. The charge alleged that on 25 October 2007, at a shop in Portland Street, the appellant had threatened Chan Tin Po (“PW1”) and Yeung Chung Kong (“PW2”) with injury to their property, with intent to alarm them.

3. The prosecution case depended on the evidence of the alleged victims, PW1 and PW2 who ran businesses at adjacent shops.

4. PW1 gave evidence that the appellant would go to his shop several times each week and pick up goods but not pay for them.  On the day in question his assistant had told the appellant not to disturb the goods.  This had resulted in the appellant scolding the assistant.  PW1 had intervened whereupon the appellant had told PW1 not to continue the shop or it would be “swept”, meaning that he would do something like burning the shop.

5. PW2 said that he had heard the conversation between the appellant and the appellant’s assistant in which the appellant had said : “Why do you open your shop?  Do you believe that I would sweep and burn your shop?”  He later heard the appellant repeat the same words to PW1, namely : “Why do you open your shop?  Do you believe that I would sweep and burn your shop?”

6. The appellant elected not to give evidence.

7. The magistrate found that PW1 and PW2 had told the truth about the incident.  She found that the words were uttered by the appellant with intent to alarm PW1 and PW2.  She was satisfied that the appellant had threatened PW1 with injury to his shop, with intent to alarm him.  In particular she was satisfied that the words uttered by the appellant were not “wild and whirling words” as they had been first said to PW1’s employee and repeated to PW1.  Moreover the appellant had been at the shop the previous day and had asked PW1 why he had opened his shop when he (the appellant) had told him not to.  She found the threat was not made to PW2 to injure PW2’s shop but was satisfied that the threat to PW1 was sufficient to warrant a conviction.

8. The perfected grounds of appeal against conviction made no criticism of the magistrate’s formal statement of findings dated 19 May 2008 supplied by the learned magistrate following the appellant’s filing a notice of appeal against conviction on 5 May 2008.

9. The appeal is based upon the failure of the magistrate to provide oral reasons for her decision at the time she convicted the appellant on 14 April 2008.  It is submitted that she should have done so and that her failure to give reasons made it impossible for the appellant and his legal representatives to know whether, when reaching her decision, she had focused her mind on the right questions and demonstrated that she had considered the issue correctly and the logic of her decision making process.

10. The learned magistrate explained in her formal statement of findings how this had come about.  She said :

“  On the last day of trial on the 14 April 2008, mindful that it was already 3.51pm and that I would not have enough time to prepare salient reasons and that possibly the appellant would be anxious to know the verdict, I asked if the defence wanted salient reasons for my decision, and the answer was negative, but I did indicate that I would give salient reasons on 7 May 2008.  Shortly after, sentencing was refixed to 25 April 2008, but on that day, although I had already prepared salient reasons, I forgot to give those salient reasons, and neither party remembered about it either.”

11. Mr Tang, who appears for the appellant as he did at trial submitted that there is a constitutional principle that some reasons for verdict must always be given by a magistrate at the time of verdict, and that failure to do so deprived the appellant of a fair trial.  Mr Tang also argued that the magistrate’s failure to give reasons contravened section 8 article 10 of the Hong Kong Bill of Rights Ordinance, Cap. 383 which provides that except in limited circumstances “any judgment in a criminal case … shall be made public …”.  He submits that the magistrate’s signed statement of findings prepared in accordance with section 114(b) of the Magistrates Ordinance, Cap. 227 is not a document which satisfies this requirement.  

12. He also relies in particular on the judgment of Deputy Judge Toh in HKSAR v. Chan Ping Sing, HCMA430/2007 in which the learned Deputy Judge allowed an appeal against conviction when the magistrate had given no reasons.  She said 

“… I cannot emphasise enough that it is in the interests of justice and also that justice ought to be seen to be done for a magistrate at the time when he or she convicts a particular defendant that he or she should give some reasons and demonstrate that she had focused his or her mind on the specific issues in question and come to a well thought out decision. …”

13. Before dealing with the alleged constitutional principle, I would simply comment that even though the magistrate did not give oral reasons why she convicted the appellant on 14 April 2008, it would have been obvious to everyone in the court why she had done so, namely that she had accepted the evidence of PW1 and PW2 who were consistent with each other and whose evidence was uncontradicted.

14. I am satisfied that there is no constitutional principle or absolute obligation that some reasons for verdict must always be given by the magistrate at the time a defendant is convicted, although in practice the magistrate normally should do so.

15. Deputy Judge Toh herself simply refers to there having “grown up a practice that a magistrate upon convicting a defendant would give some reasons as to why he was convicted”.  It is clearly highly desirable for the reasons given by Deputy Judge Toh that in normal circumstances a magistrate should give some reasons at the time of conviction.  A failure to do so may in certain cases lead to doubt arising as to whether the learned magistrate had addressed his mind to a significant issue in the case.  Deputy Judge Toh considered that it did so in the case she was considering, which was one of common assault and in which the appellant had given evidence that he was acting in self-defence, but it does not invariably do so.

16. The statutory procedure laid down in the Magistrates’ Ordinance, Cap. 227 makes no reference to a requirement to give oral reasons at the time of verdict.  As Deputy Judge Lugar-Mawson, as he then was, said in HKSAR v. Fung Siu Chung :

“… Unlike the detailed provisions in s.80 of the District Court Ordinance, which deal with the duties of a District Court judge at the time he delivers his verdict, there is no requirement that a magistrate delivers full oral reasons for his decision at the time of conviction.  His only statutory duty in relation to summary proceedings is that given in s.19(2) of the Magistrates Ordinance, which provides :

‘The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.’

By virtue of s.93(a) of the Magistrates Ordinance, this provision also applies to indictable offences dealt with summarily by a magistrate.”

He went on to state the rationale being that “it must not be forgotten that magistrates work under considerable pressure dealing with many cases in one day”.

17. The only statutory duty in the Magistrates Ordinance in so far as giving reasons is concerned is contained in section 114(b) which provides :

“When a notice of appeal has been given to the magistrates’ clerk the magistrate whose conviction, order or determination is the subject of the notice of appeal shall prepare a signed statement of findings on the facts and other grounds of his decision and within 15 days after the day on which the notice of appeal was given cause a copy to be served upon the appellant and respondent and, if he is not the respondent, also upon the Secretary for Justice.”

18. Mr Tang referred the court to the remarks of Henry LJ in Flannery and Another v. Halifax Estate Agencies Ltd [2000] 1 WLR 377 of the general duty of a provisional judge to give reasons for his decision.  He had however referred to there being some exceptions, such as in the Magistrates’ court.

19. In the later case of English v. Emery Reimbold and Strict Ltd [2002] 1 WLR 2409 Lord Phillips MR referred to the judgment of Henry LJ in Flannery and said :

“… Henry LJ identified a number of exceptions to the duty to give reasons, including decisions in the Magistrates’ Court and areas where the court’s decision is more often that not a summary exercise of discretion, in particular orders for costs.  Flannery was decided before the Human Rights Act 1998 came into force.  It is clearly established by the Strasbourg jurisprudence that the right to a fair trial guaranteed by Article 6 of the Convention, which includes the requirement that judgment shall be pronounced publicly, normally carries with it an obligation that the judgment should be a reasoned judgment.  In response to this requirement, Magistrates Courts now give reason for their decisions. …”

20. The convention to which Lord Phillips referred was the European Convention on Human Rights.  Article 6 is similar (but not identical) to section 8 article 10 of the Hong Kong Bill of Rights Ordinance and Article 14 of the International Covenant on Civil and Political Rights which applies to Hong Kong by virtue of Article 39 of the Basic Law.  The similarity is sufficient to draw the conclusion that when a magistrate pronounces judgment and convicts a defendant he must do so publicly.  Furthermore the defendant’s right to a fair trial normally carries with it an obligation that the magistrate should give at least some oral reasons for his conclusion.

21. The learned magistrate in the case before me recognized that normally she should give some oral reasons.  That is why she asked Mr Tang if he required her to give salient reasons for her decision.  He said : “No”.  I consider that in the circumstances her decision to depart from her normal practice was excusable particularly as the essential basis for her decision would have been obvious to everyone in court.  Indeed, in his final submissions to the magistrate, Mr Tang said :

“…The whole thing really depends on, you know, your Worship, after hearing PW1 and PW2’s evidence whether you will find, you know, what they said is correct and, well, whether you believe, you know, what PW1 and PW2 (indistinct) said ….  And this is really a matter of credibility, you know, because none of us were there….”

22. Mr Tang has not cited any authority to the effect that the court is legally obliged in all circumstances to provide adequate reasons at the time the court orally pronounces its verdict.  

23. I accept the submission of Mr Tam who appears for the Respondent that Flannery’s case and English v. Emery Reimbold and Strict Ltd clearly suggest that this is not the case and that reasons or additional reasons for court’s decision can be called for and provided by it after its decision has been made.

24. I found that there is nothing in Mr Tang’s submission that the verdict can be impugned because the magistrate’s reasons for verdict were not made public by the magistrate but only signed and served on the parties in accordance with section 114(b) of the Magistrates Ordinance.  

25. The judgment convicting the appellant was made in public on 14 April 2008 and that the appellant himself through his counsel at that time expressly said he did not require the court to give salient reasons for its decision.

26. In such circumstances, bearing in mind the public character of proceedings referred to in provisions like section 8 Article 10 of the Bill of Rights Ordinance and Article 14 of the International Covenant on Civil and Political Right is to protect litigants against the administration of justice in secret with no public scrutiny and is one of the means whereby confidence in the court can be maintained (see Axen v. Germany 6 EHRR 195) I am satisfied that in the context of a Magistrates’ Court, the verdict of the magistrate convicting the defendant was the judgment for the purpose of section 8 Article 10 of the Bill of Rights Ordinance and Article 14 of the International Covenant on Civil and Political Rights and that that was made in public.

Appeal by way of rehearing

27. Even if the proceedings before the magistrate were defective as Mr Tang has argued, it has to be borne in mind that proceedings before this court are by way of a rehearing on the papers.

28. The evidence of PW1 and PW2 in the Magistrates’ Court as to the words and actions of the appellant were uncontradicted.  The magistrate who had the benefit of seeing them give evidence found them to be credible witnesses.  The considerations she took into account were proper.  I am satisfied that the words uttered by the appellant were a threat to injure the property of PW1.  It would be fanciful to suggest, bearing in mind the evidence of PW1 and PW2 of the words uttered by the appellant on the day of the incident taking into account what the appellant had said the previous day, were not uttered with intent to alarm.

29. I am satisfied that the appellant was properly convicted.

30. I dismiss the appeal against conviction.