HKSAR v. WONG SUI KAM

HCMA1144/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1144 OF 1999

(ON APPEAL FROM NKCC 5308 of 1999)

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J U D G M E N T

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1. The appellant was charged with the two counts of criminal intimidation. She pleaded not guilty to both charges. After trial, she was convicted of the first charge but acquitted of the second charge. She was fined $1,000 for the offence and now the appellant sought to appeal against the conviction only.

2. The prosecution had called a total of three witnesses and the appellant had given evidence herself. This appeared to be a case involving two parties who were known to each other. The evidence revealed that the appellant used to be the girl-friend of PW1's father. In the morning of 10 September 1999, they met in the street and there was an argument. In the course of the encounter, the appellant was said to have used the threatening words. In the learned magistrate's Statement of Findings, he had properly summarised the evidence and considered the issue of credibility of witnesses before coming to his findings of facts. However, the appellant argued that the Magistrate had failed to take into account the fact that the appellant had a clear criminal record. This constituted one of the main grounds of the appeal.

3. The full transcript of the trial was not before the court. From what is available, it seemed that defence counsel had only referred to the appellant having a clear record in his final submission. However, the trial magistrate had not addressed this issue and went on to conclude, in his judgment, that the appellant did utter the threatening words. There was also no reference to this matter at all in the Statement of Findings.

4. This is not a satisfactory situation. It was the responsibility of trial counsel to lead his client, if he or she elects to give evidence, to cover all the relevant issues, including whether he or she has a clear criminal record. Such a matter should never be left to the final submission stage. However, once this was raised, the trial magistrate should take it into consideration in assessing the credibility of the appellant, and be seen to have done so, although a full Berreda warning may not always be necessary. This is so especially when the main issue concerned the credibility of witnesses. See Tang Siu Man v. HKSAR [1998] 1 HKLRD 350 (FACC No.1 of 1997)

5. In the course of this appeal, counsel for the appellant had, at one stage, invited this court to substitute the conviction with a Binding Over Order by virtue of the Magistrates Ordinance. I took the view that even if I had the power to do so, it would not be an appropriate course to take. The order to bind over a person to keep the peace required clear supporting facts. It would be rather awkward, to say the least, if on one hand, I consider that the magistrate's finding of fact to be questionable, yet on the other hand, try to rely on his finding of fact to impose a binding over order. I had declined the invitation.

6. Having also heard the prosecution, I allowed the appeal, quashed the conviction, set aside the sentence and ordered that the first charge be sent back to the Magistracy for retrial before another magistrate or to be disposed of in whatever appropriate way as agreed between the parties. This would be the order of this court.

Representation: