HKSAR v. WONG LUEN FUN

HCMA631/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.631 OF 2000

(ON APPEAL FROM NKCC 2181 OF 2000)

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Date of Judgment: 3 October 2000

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J U D G M E N T

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1. This is an appeal against conviction and sentence. The appellant is aged 58 years and is a man of previous good character. He was charged with two offences, the first with wounding, alleging that he unlawfully and maliciously wounded Mr Ng ("PW1"), on 25 October 1999. The second is that he unlawfully wounded Mr Fan ("PW2") on the same day.

2. The appellant lives, and has for some years lived, on the rooftop of 162-164 Yee Kuk Street, Sham Shui Po, and it appears common ground that he and PW1 had continuing altercations or disputes about their respective liabilities for electricity and water charges in the building.

3. On 25 October 1999 they met on the staircase at the second floor level, there was an altercation in the course of which PW1 contacted by mobile phone his friend, PW2, who was waiting for him downstairs. Why he contacted him and what transpired was a matter of dispute at the trial. PW1 said that there was a heated exchange of verbal abuse on the staircase and that the appellant punched him on the mouth resulting in a cut lip. Then, according to his evidence, the appellant punched his chest and took out a screwdriver from a waist bag. This witness, realising that he was being attacked, answered the mobile phone which happened to ring and told his friend downstairs what was happening, and his friend came up. He dragged PW1 down the stairs away from the appellant. The appellant pursued them, lunged at PW2 once they reached outside the building and stabbed him at the base of the neck. That forms the basis of the second charge.

4. Whilst the appellant continued with the attack, PW1 said that he used a trolley as a shield, grasped the appellant's wrist and the appellant scratched his arm with a bunch of keys. Eventually, the rack or trolley fell on PW1, at which point the appellant, according to this evidence, rushed forward and stabbed PW1 near his eye. This is the essence of the wounding allegation in the first charge. After the attack on his eye, PW1 managed to take hold of a ceramic pot which he picked up and threw at the appellant. It struck the appellant in the region of his chest and he fell backwards.

5. Both the alleged victims of these attacks gave evidence. So did the appellant. He said that he was the victim of attacks, not the other way round. He said that PW1 threw banknotes on the ground as an excuse for saying that the appellant had robbed him, and that PW1 called PW2 who arrived. He said that he drew the screwdriver merely to defend himself and fled, with the others in pursuit, down to the pavement where the two of them pushed a trolley against him with such force that they broke his arm. He said that at no time did he touch either complainant, let alone stab either of them.

6. Two witnesses were called on his behalf, but it suffices to say at this stage that the magistrate took the view that their evidence was not reliable. The fact is that the magistrate was impressed by the evidence of both complainants, and in particular he said of PW2 that "he appeared an extremely personable young man who was an excellent witness". And in due course, the magistrate convicted this appellant and sentenced him a total of eight months' imprisonment.

7. The magistrate provided very full reasons for his decision, and I wish to say that they are a model of clarity and their logic cannot be faulted, nor is there any flaw in the approach to law which he has adopted.

8. At the end of the appellant's lengthy submissions, assisted by his son, I was prompted to ask counsel appearing for the respondent whether there was anything known against either prosecution witness. The answer is that PW2, the 17 year old, has been the recipient of what is known as a Superintendent's caution for theft. I am told as well that such a caution is not administered unless the offence is admitted. It seemed apparent to me from the thrust of the magistrate's comments about this young man that that fact did not or may not have been known to him.

9. I was at first told last week by counsel for the respondent that the defence had not been informed of this witness's past, but then a short while later that they had been told two days before. I therefore decided to ask the solicitor who represented the appellant to attend court today and he has kindly done so. What is evident is that he wrote to the police by letter dated 30 May, specifically asking them for the records of PW1 and PW2. What he said was : "We have instructions to challenge the characters of both PW1 and PW2 during the trial." He received no reply to that letter and it is not suggested by counsel for the respondent that he did receive a reply. He should have done. The solicitor told me today that he renewed his request for this information on the morning of the hearing and was told that neither person had any record. Strictly speaking that is correct because there is no criminal conviction. But I pause to comment that since the defence were interested in the characters of both witnesses, it was obviously of importance to the defence to know about this warning and this admission of theft.

10. He told me that on the morning of the hearing, he renewed his request for information, as I say, and was told that neither person had any record. As for the information sent to him two days before, I have seen a fax, attaching a medical report, about the appellant. It does not refer to previous character and in any event was sent to the address of the firm from which the solicitor had retired to set up his own firm in April 2000. I have also seen a message sent by the prosecutor who appeared before the magistrate, and nothing I say should be taken as this court having come to any adverse conclusion as to his conduct. But I need to decide on balance what is the more likely course of the events which took place on the day of trial. He says that he has a vague recollection of showing the records before the trial and that the solicitor commented that the matter relating to PW2 was trivial. I have to take a decision on the balance of the matter. It is unnecessary for me to conduct an in-depth investigation into this matter, and where at present, I have some doubts about it, I must rule on the side of the appellant. The solicitor is quite firm that he was not shown the record and, given his interest in it, displayed by the letter of 30 May, the absence of any response by the police, and the fact that I am quite sure from the appellant's response when I asked him whether he was aware of this matter against PW2, that he knew nothing of it given the solicitor's interest in this matter as expressed in the letter, I can hardly conclude that he took some tactical decision not to deploy the prosecution witness' recent problem with an offence of dishonesty. It is unlikely that he would have ignored it.

11. I do not know the details of the offence thus admitted and it may or may not have influenced the magistrate at all. The important point, however, is that the magistrate said of the witness that he appeared to be an extremely personable young man and an excellent witness. It is clear that the impression the magistrate formed of the witnesses was material. It may still be the case that that witness was telling the truth. The fact of a caution, or even a conviction, does not necessarily mean that a witness is not telling the truth but the key point is that I have concluded, for reasons I have given, that this important potential tool was not at the disposal of the defence. Quite what happened is unclear but that is the conclusion which, on balance, I have reached. I cannot be sure, in the circumstances, that there has been no injustice. And the principle at stake is a fundamental one. Accordingly the convictions are quashed, and the sentences are set aside.

12. The only remaining question is whether there should be a retrial. On the one hand, the appellant has already served several months of his sentence which is due to expire in late November. On the other, the alleged offence is serious and it would not be right in my judgment just to let the matter go. If there is a conviction in the future, then the fact that there have been two trials, and the fact that he has already served several months in prison would no doubt be taken into account in any sentencing exercise. I shall therefore order that there be a retrial. I think that the matter should be heard before a different magistrate. It goes without saying from earlier comments that I have made that I take the view that the magistrate dealt with this case impeccably. But in the circumstances I have described, I think it more appropriate for the case to be heard entirely afresh.