HKSAR v. MICHAEL M. NKASU

HCMA479/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 479 OF 2002

(On appeal from NKS 13278 of 2001 )

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

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

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

J U D G M E N T

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

1. This appellant was convicted, on review, by Mr Boey Chung at North Kowloon Magistrates' Court on 9 April this year on a summons that he :

"... being a competent examiner having carried out a test, inspection or examination required by the Factories and Industrial Undertakings (Lifting Appliances and Lifting Gear) Regulations, Cap. 59, on 5 January 2001 did deliver to the owner, Chim Kee Co., Ltd, of a crane (brand : Sumitomo, model no. LS-118-RH5) a false certificate which was, to his knowledge, false as to a material particular;"

for which he was fined $30,000. He now appeals against that finding of guilt and sentence.

2. I need to relate the history of this matter because this forms a significant part of the appellant's case in the appeal. He was tried over two days, on 5 and 11 October last year, when he was represented by a solicitor. The magistrate, having heard all the evidence, including that of the appellant, dismissed the summons and ordered the prosecution to pay his costs. Dissatisfied with that outcome the prosecution then applied to the magistrate for review under Section 104 of the Magistrates' Ordinance. That was also heard over two days, on 13 March and 9 April, when the appellant was unrepresented. Government Counsel who now appeared to argue the matter on review persuaded the magistrate that he had been mistaken to dismiss the summons. Accordingly, he reversed himself found the summons proved, set aside the order for costs, and imposed the $30,000 fine; hence this appeal.

3. Notwithstanding the nature of the case, concerning as it does whether the appellant conducted proper tests on a crane, this is a matter which raises a number of interesting points, and I am grateful to both counsel for the helpful way in which they have argued the appeal.

4. The appellant is a highly qualified person. He holds a PhD degree from an English university. He is a member of a number of professional institutions. His expertise is in mechanical engineering. He also has a senior position at a university in Hong Kong.

5. The regulations under which the summons has been brought form part of very important safety legislation, whereunder cranes and other lifting equipment need to be tested regularly by a competent person who then sets out his findings on a statutory form. The summons itself merely recites the terms of the offence, it does not provide particulars of the respects in which the certificate was false.

6. In the usual way, a defendant would be entitled to know the basis of the prosecution case and the court could order particulars to be provided. At the original trial, this did not occur, but I think that no legitimate complaint can be made about that because firstly, a letter dated 10 April 2001 was sent by the Labour Department to the effect that "the data put into column 6 of the Certificate was incorrect". That was some progress, but more was to come because at the trial the prosecuting solicitor informed the court that the case against the appellant was that the only weight that was lifted was one of four tonnes, and that all the other weights that were shown on the certificate were not in fact lifted, and so the certificate was false and the appellant knew that. And this was further repeated in the course of the trial, see Transcript 40E-N :

".... These test loads were simply not lifted .... no loads to comply with the facts that the engineer had put in the certificate."

7. That was the prosecution's position and it raised a very serious allegation against the appellant : that he had compromised the safety of this equipment by purporting to have carried out the whole range of tests required by the regulations when in fact he had only performed a small part of the test. In the circumstances, a very disturbing allegation against a professional man which, I would have thought in the circumstances, carried an implication of moral turpitude.

8. The appellant and his solicitor knew the case that they needed to meet. The prosecution called its evidence and the appellant gave evidence himself, and he told the magistrate that he had performed all of the tests that he said he had done and certified in the certificate.

9. The magistrate appeared to have accepted the situation and, on what was essentially a question of fact, he dismissed the summons. The appellant could therefore have no cause for concern or complaint that the summons was defective for want of particulars. In fact, he was informed of the allegations -- he met them by giving evidence and he was successful.

10. What then happened on the review has caused Mr McGowan to criticise the prosecution for bringing the case on a basis that was not the one advanced at the original trial, and he has also criticised the magistrate for allowing them to do so. What was now being said on the review was not so grave. Whereas at the original trial it had been said that apart from one type of test the other tests certified by the appellant had not been carried out. Now the allegation was put in a different way, that whilst he might have carried out tests, which were in addition to the ones that the prosecution said that he had not performed, the tests that he did in fact carry out were not in accordance with the detailed method required by the First Schedule to the regulations and so that, in any event, the particulars in the certificate must be false and, therefore, even on his own case, the appellant must be guilty of the offence. That way of putting the matter by the prosecution came from the defendant's evidence at the trial in defending himself on the graver allegation that he had not performed the tests save for the one relating to a four tonne weight.

11. What the prosecution had submitted to the magistrate on review was that, having heard the appellant's evidence in answer to the graver allegation being advanced against him, it was still open to him to consider, and he should have considered, whether the appellant, even on his own case, should have been found guilty. His evidence had revealed a test method that was not in compliance with the requirements of the schedule, and that in those circumstances the certificate was indeed false.

12. Mr McGowan has therefore taken a number of points. Firstly, he submits that as soon as the magistrate had seen that a different basis for conviction was being put forward he should have stopped the hearing and declined to entertain the application. That is really going too far. He was entitled to hear the prosecution out, which he did, and that was unobjectionable.

13. Mr McGowan's more fundamental point is that it was quite wrong to allow the prosecution to chop and change its ground in seeking a conviction. The prosecution had laid out its stall on the basis that many of the tests had simply not been performed. That set up the contest before the magistrate on those issues.

14. The appellant fought the summons on that basis. The summons itself was unparticularised -- particulars would normally have been required, but because the case had been made clear by letter before trial (on 10 April 2001), and then at trial, no application for particulars had been made. At the trial, the magistrate had never been asked to convict on the alternative basis now advanced on the review, and he could hardly be criticised in an adversarial process, for not straying beyond the parameters set out by the allegation that the appellant had not performed the tests, and gone into an inquiry whether, if he had performed the tests, those tests which he had performed did not comply with the requirements of the schedule.

15. Mr McGowan goes further and says that the review itself was procedurally defective as the magistrate, having been told by the prosecution that they would not require further evidence, did not turn his mind to the consequences of this change of tack for the defendant, who was then unrepresented. Consideration ought to have been given as to whether the summons should have been amended to add these new particulars and then whether to go through the section 27, Magistrates' Ordinance exercise, which may have entailed the recalling of witnesses for cross-examination, allowing the appellant to call further evidence and/or to seek an adjournment to enable him to do that, or to get further advice. This was not done, it should have been done, and the appellant therefore did not get a fair trial.

16. I am of the view that Mr McGowan is correct in his essential analysis of this. One of the safeguards that a defendant gets when he is charged or summonsed for an offence is that he should know in advance what allegations he has to meet at the trial. He can then prepare his defence. This was done by a letter, and in the way that he was informed in the prosecution's opening. On the basis of those allegations, it cannot be right, as a matter of correct procedure, to then invite the court on review to convict the appellant on his own case, even if that, strictly speaking, may be right as a matter of law where he never had to confront that prospect at his original trial. The magistrate, at trial, was never invited to deal with the case on that alternative basis. If that alternative basis had been known to the appellant and his solicitor before his trial started, he may well have conducted his defence differently; called additional evidence, cross-examined prosecution witnesses differently and so forth. This is the essence of our adversarial system, and now, after the horse had bolted as it were, the prosecution has been allowed to re-examine its position and have a second go on a basis that had not been originally relied on. I do not believe that can be right. Its effect, albeit unintended by prosecution and magistrate, has been that the defendant has not had a fair trial. The magistrate should have declined to change his verdict. In my judgment, this appeal must succeed. The conviction and fine must be set aside.

17. That then leaves over the question of the order for costs. That order went once the acquittal was reversed, but the question still remains as to whether the order for costs should have been made in the first place. The review related to both matters.

18. The prosecution says that the original acquittal came from a situation where the defendant had brought suspicion on himself and/or that he perhaps was acquitted on a technicality. Leaving those matters aside, it does seem to me that even on the appellant's own case, the prosecution had grounds for saying that the defendant had committed the offence by not performing these tests in the way required by the schedule. The magistrate, on review, accepted this and convicted him. Had he been addressed on that basis at the original trial as a basis for resisting an order for costs against the prosecution rather than for convicting, the magistrate would have been bound to refuse the appellant his costs.

19. I am satisfied that on the issue of costs, at its lowest, the appellant had shown that he had done these tests, or at least some of them, in a questionable way. That would have been more than enough to justify a refusal to order costs against the unsuccessful prosecutor. On the review, the magistrate had all of this before him, and I am satisfied that had he declined to reverse his acquittal (which as I have found he should have done), he still ought to have quashed the order for costs against the prosecution. Therefore, that part of the magistrate's order must stand. So, the appeal must succeed to the extent that the conviction will be quashed and the fine set aside, but the appeal against the setting aside of the order for costs will be dismissed.