HKSAR v. CHAN LAI CHEONG AND ANOTHER

HCMA 35/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 35 OF 2007

(ON APPEAL FROM FLCC 1832/2006)

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J U D G M E N T

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1.  Both appellants were convicted after trial of one charge of Criminal Damage and were both ordered to pay a fine.  They now appeal against both conviction and sentence.

Prosecution’s case

2.  It is not in dispute that both appellants were seen cutting down a large tree with an electric saw on the date of the offence, and it is also not disputed that the tree was located in a playground, near lamppost EA8084 in Kam Shek New Village, Kam Shan Road, Tai Po, New Territories.  This tree was situated outside the tea house operated by the 2^nd appellant.  When police officers arrived at the scene and arrested both appellants for criminal damage, the 1^st appellant under caution said that he only helped cut down the tree upon the 2^nd appellant’s request, and he had no idea who owned the tree.  The 2^nd appellant said under caution that the tree in question was planted by her own hands and she had asked the 1^st appellant to help her cut the tree because it was withering and there was a risk that it would collapse.

3.  The expert witness, PW4, stated that he was working for the Leisure and Cultural Services Department which was responsible for the management and maintenance of the tree since 1986.  He had also taken and completed a course in tree management at a university.  The day after the incident, he had inspected the tree and found that the foliage was still dense and the trunk showed no sign of withering.  He therefore concluded that it was a healthy tree and there was no necessity to cut it down.

4.  In a further statement given to the police, the 2^nd appellant retracted her claim that the tree was her property and said that she was aware that the large tree was a property of the government and admitted she knew it was improper to cut down the tree, and that she was willing to be responsible for her action.

Defence case

5.  Both appellants elected to give evidence and they said that on the day of the incident the tree in question suddenly tilted and leaned against the canopy of Sing Kee.  Fearing that the tree was in immediate danger of collapsing and was posing a threat to passers-by, both appellants then proceeded to cut down the tree to ensure the safety of others.

6.  At trial, both appellants had alleged that their cautioned statements to the police were involuntary and therefore inadmissible.  After a voir dire, the learned Magistrate found that the statements were voluntary and therefore admitted those statements into evidence.

7.  The defence also called as defence witnesses three civilians.  Mr Chan, who had resided in the neighbourhood of Sing Kee, said that several days after the incident, he had taken several pictures, which were exhibit D1, to show that the trees in that vicinity were tall and large.  Mr Chan said that as far as he could remember, the tree in question was “over extended” and therefore was a “potential danger”.

8.  Defence witness Mr Law produced a copy of a letter (Exh. D2) that he had written to the Leisure and Cultural Services Department about a year before the incident requesting the Department to follow up on “the matter of tilting tree trunk” near Sing Kee.  Mr Law also said that all he knew about the tree in question was that it was tilting.

9.  Finally, the evidence of another defence witness Mr Lam was that he had noticed the tilting of the tree in question and that the trunk of the tree was rotten with insect bites.

Magistrate’s finding

10.  The learned Magistrate did not accept the evidence of any of the defence witnesses.  He said that the evidence of Mr Chan undermined the evidence of the two appellants, because he had said that the tree was over extended and therefore a “potential danger” whereas the appellants’ evidence was that it was withering and of “immediate danger”.  The learned Magistrate rejected the evidence of Mr Law and said “Law’s evidence did not offer any comment that was constructive or of his personal knowledge on the core issue of the case.  His evidence had no probative value at all”.  Finally Mr Lam’s evidence was criticised by the learned Magistrate as untruthful because it appears to him that Lam was giving evidence from a “script”.  The reason for that conclusion being that his wordings were very similar to those of the 1^st and 2^nd appellants.  The learned Magistrate considered that Mr Lam had lied in relation to his previous criminal record, and therefore was totally discredited.

11.  The learned Magistrate found that neither appellants could claim the defence of lawful excuse because Mr Wong, the government expert had testified that there was nothing unusual for the tree in question to be tilting because that was the nature of that species of tree.  And the learned Magistrate found that his evidence rebutted that of the 2^nd appellant who said that the tree was withering and tilting.  Further, the learned Magistrate said that the police found piles of electric wires and extension cords connected to the mains in Sing Kee thus indicating that the 2^nd appellant had sufficient time to arrange for the connection of electricity in order to cut down the tree, and therefore rebutted the 2^nd appellant’s claim that the tree was an “immediate danger” of collapsing.  The learned Magistrate found that both appellants were reckless as to whether or not the tree which belonged to the government would be destroyed or damaged.  Thus, he convicted both appellants.

Appeal

12.  Mr Cheng, SC on behalf of the appellants had put forward many grounds of appeal.  One of the grounds which has caused me great concern is the following:

“	After DW3, Mr Law, a district councillor, had given evidence, there was the following interchange between counsel for the defence, Mr Leung and the learned Magistrate (see page 231 of the appeal bundle);
	Court:	Actually, I have not failed to notice it at all.  Let me further take some subtle points as examples.  Before the tree had been cut down, D1 was having tea there.  He said that he heard a ‘snap’ sound.  At that time, some other customers were also having tea there.  However, as for this point, D2 subsequently, I emphasise, in order to make their evidence consistent, she then said some of the customers went away having heard that sound.  I have not failed to notice it.  You’d better not treat this court as not knowing what the thrust of this case is.  Actually, the details and the subtle points can best reflect where the truth of the matter lies.  In addition, the witnesses you called, the evidence they gave was too obvious to carry weight.  I really think that you seem to be wasting court’s time.
	Mr Leung:	Your Worship, actually, there is only one last witness of the defence.
	Court:	It doesn’t matter how many (you are calling).
	Mr Leung:	He is ….
	Court:	Is quantity the most important, do you think?  It is quality.
	Mr Leung:	Yes.
	Court:	Further, the burden of proof lies on the prosecution, you called D1 and D2 to take the witness stand, would you be washing dirty linen in public and attracting blame on them?  As for whether what they said was credible or not… I believe that in between the details, it has been sufficiently reflected whether they have told the truth.  We should not forget that there were verbal admissions made by D1 and D2 and their records of interview.  What’s the thrust of their records of interview and that of their evidence in the witness box, could I miss that?  I’ll hear this witness to see if his evidence is addressing any of the key issues.  Perhaps, it is my failure to figure it out.  Yes, call him.”

13.  The learned Magistrate in his oral reasons said at page 255 of the appeal bundle:

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The Defence has even called a councillor to give evidence.  Early on, this court has already questioned the Defence’s counsel about (this arrangement), as his evidence had nothing to do with this case at all.  Earlier, having heard the complete evidence given by the councillor, I made it clear that it was a waste of court’s time.”

14.  In the learned Magistrate’s Statement of Findings, at paragraph 18, he found Mr Law’s evidence to have “no probative value at all”.  Upon a reading of Mr Law’s evidence, page 212 of the appeal bundle, it was clear that Mr Law had been to the tea house operated by the 2^nd appellant frequently he said “once or twice a week”.  He was well aware of the tilting tree outside the 2^nd appellant’s tea shop and had in fact written letters to the Leisure and Cultural Services Department concerning the trees.  In particular, he mentioned that one tree “lean over to the window of 105”.  He said No. 105 is the location of the 2^nd appellant’s tea house.  He said in fact the tree had tilted in that direction.  As a result of his observations and complaints from the kai fong, he had written letters to the Leisure and Cultural Services Department.

15.  It is clear from a reading of Mr Law’s evidence that he had personal knowledge of the leaning tree as he had been to the 2^nd appellant’s tea house on many occasions, and he had also written to the Leisure and Cultural Services Department on several occasions complaining about the trees along that road.  When the learned Magistrate criticised Mr Law’s evidence on account of his lack of “personal knowledge on the core issue of the case”, it was not an accurate reflection of the evidence of Mr Law, as Mr Law had pointed out that he had observed the particular tree leaning towards the tea house.  Of course, it is the learned Magistrate’s discretion being the judge of the facts to accept or reject witnesses’ testimony, and a court on appeal would be slow to interfere with that discretion.  However, if it is apparent from the learned Magistrate’s oral reasons and Statement of Findings that the learned Magistrate had based his conclusions on a wrong or inaccurate premise, then it is the duty of the court on appeal to interfere as is the case here.

16.  It is clear from a reading of Mr Law’s evidence that he was able to give relevant and admissible evidence of his observations of the relevant tree and his actions regarding the trees near the tea house to support the defence version that they were worried that the leaning tree may be in danger of collapsing.  Of course, at the end of the day, had the learned Magistrate properly considered the evidence of Mr Law, but still rejected the defence that the tree was in imminent danger of collapse, then it is a finding of fact that cannot be questioned.

17.  In this case, not only had the Magistrate inaccurately assessed the evidence of Mr Law, he compounded the error by telling the defence counsel, prior to the last witness for the defence being called, by appearing to indicate that he had made up his mind that he did not feel that the defence witnesses’ evidence carried any weight and that by calling any further witnesses, the defence was wasting the court’s time.

18.  It is clear from the above extracts mentioned in paragraph 12 above that the learned Magistrate had before hearing the last witness for the defence made up his mind that the defence witnesses were not worthy of belief, and that he had made up his mind before the close of the Defence case.

19.  It is accepted that magistrates have a heavy workload, and therefore they would have to manage the cases well so as to minimise any loss of time.  However, case management should not be taken to the extreme level where it interferes with the interests of justice.  The defence is always entitled to fully explore the case against them and to have the opportunity to answer fully the case against them.  The learned Magistrate has a duty to see that time is not wasted by the frivolous calling of witnesses who have no relevant evidence to give.  It is clear that the criticism by the learned Magistrate of Mr Law’s evidence was unjustified, and before hearing the evidence of the last witness, it would appear that the learned Magistrate was indicating that it would be a waste of his time to call fresh witnesses.  Justice has to be seen to be done, and in this case, it was glaringly obvious to the interested observer that the learned Magistrate appears to have made up his mind.

20.  Further, it best mentioned that at paragraph 25 of the learned Magistrate’s Statement of Findings, he dealt with the issue of recklessness.  He found that both appellants when committing this offence were “reckless as to whether or not the large tree which belong to the government would be destroyed or damaged”.  It was never the case of either the prosecution or the defence that recklessness was an issue at all.  The defence was that the tree was cut down because of the endangerment to life or property, therefore, whether the defence had a reasonable excuse to cut the tree down.  The first time that the issue of recklessness appears is in the learned Magistrate’s Statement of Findings.  It is a mystery to this court as to why the learned Magistrate felt that this issue arose in view of the way the defence was put and the case of the prosecution was put.

21.  In any event, for the reasons I have enunciated above, I find that the conviction is therefore unsafe and unsatisfactory, and the conviction is quashed.  Fines and compensation if paid, are to be refund to the appellants.