HKSAR v. WONG KAM KEUNG

HCMA 71/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 71 OF 2014

(ON APPEAL FROM ESCC 292/2013)

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REASONS FOR DECISION

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1.  On 25 April 2014 I heard and dismissed an application for bail pending appeal and indicated that I would provide my reasons for so doing. These are they.

2.  The applicant was convicted by a magistrate, after trial, of a single charge of acting as a member of a triad society contrary to s 20(2) of the Societies Ordinance, Cap 151. He was convicted on 31 December 2013 and sentenced that same day to undergo imprisonment for a period of 12 months. The applicant applied for bail pending appeal that day which application was refused. On 2 January 2014 he filed a notice of appeal against conviction. He now applies for bail pending appeal on two bases, first, that by the time the appeal is heard there is a risk that the whole or a substantial part of the sentence will have been served; second, that he has strong prospect of success on appeal.

The time basis

3.  It is necessary, in order to put the submissions relating to the time basis into proper perspective, to briefly detail the history of this matter since the appellant's conviction. The applicant had been represented at trial by Senior Counsel instructed by SSW and Associates. On 30 January 2014 a notice to act was filed by KM Cheung and Company, who, apparently, on 17 January had requested the magistracy to make available a copy of the transcript of the proceedings at trial. They were informed on 30 January by a letter from the Registrar of this court that the appeal bundle was ready for collection and reminded that it was necessary for them to file the applicant’s Grounds of Appeal within 14 days of that date. The appeal bundle was collected that day. By letter dated 13 February that firm sought an extension of a further 14 days within which to file the Grounds of Appeal. The grant of that extension was notified to them by letter dated 17 February. By letter dated 21 February that firm advised the Registrar, first, that the transcript had been uplifted from Eastern Magistracy and, second, that another firm of solicitors, KL Leung and company, were now acting for the applicant.

4.  By letter dated 10 March KL Leung and Company were advised that unless the Grounds of Appeal were filed and the time needed for the hearing was estimated on or before 21 March the matter would be listed without further notice. This produced a request, dated 20 March, the day before the deadline, in which a further extension of 28 days to file the Grounds of Appeal was sought. The grant of that extension was notified to them by letter dated 26 March, with the direction that the Perfected Grounds of Appeal be filed on or before 22 April. They were eventually received on 17 April. Notice of this application was given that day.

5.  The delay thus attributable to the applicant has the effect, self-evidently, of this application being made substantially closer to the date by which he will have served his sentence. It was submitted on his behalf, further, in the written submissions filed in respect of this application that to fix the hearing of this appeal "in consultation of  (sic) counsel's diaries - … may cause even more delay...". Fixing the hearing for the convenience of a particular counsel is an indulgence which the applicant seeks. It has been open to the applicant from 2 January 2014, when he filed his notice of appeal, to make this application. In my judgement he cannot rely either on his own tardiness in bringing this application or upon the possible grant of an indulgence to him to bolster his submission on the time basis.

The prospects of success on appeal basis

6.  It is to be noted that the Perfected Grounds of Appeal, attributed to Leading Counsel together with one of the three counsel to whom who the submissions in this application are attributed, assert the conviction to be “unsafe or unsatisfactory” on two bases: first, that the magistrate "Incorrectly identified the main issue of this case as whether [the applicant] was correctly identified... when the main issue... should be whether the prosecution's evidence has established the actus reus of the offence beyond reasonable doubt"; second, that the magistrate erred in relying on the evidence of an undercover police officer who was the only witness who gave direct evidence of the applicant's conduct.

7.  The characterisation that the magistrate misidentified the main issue in the trial is unfounded. It takes the magistrate's observations out of context and, as such, it is misleading: she was simply setting out the approach of defence counsel. She showed herself to be alive to the issues in the trial.

8.  I note that this ground has not been relied upon for the purposes of this application either in the skeleton submissions or in argument.

9.  The main thrust of the attack on the conviction in argument before me was that the magistrate had erred, first, in drawing the irresistible inference that led to the conviction of the accused and, second, in accepting  the evidence of the undercover police officer, in other words the magistrate's finding of credibility.

10.  It is not my function to determine the outcome of the appeal at this stage. What is necessary for me to do is to assess whether the applicant has shown, in addition to the time basis, that the appeal is reasonably arguable: see Tang V-P (as he then was) in HKSAR v LAU Man Kin [2010] 1 HKLRD 336 at §8:

“That does not mean in a case where the appeal is unlikely to succeed bail should nevertheless be granted. That would encourage unmeritorious appeals and is not conducive to good administration of justice. In a case where the appeal is reasonably arguable I believe bail may be granted on the time ground...”

11.  It is logical to start with the issue of the credibility of the witness. The main, but not only, complaint about this issue is that the same police officer had given evidence in other trials involving three other accused, one of which was in the District Court, where his evidence had not been relied upon, yet the magistrate accepted his evidence and relied upon it for the purposes of convicting the applicant.

12.  These trials arose from a police operation which extended from May 2011 to December 2012, not December 2011 as asserted in the Perfected Grounds of Appeal. The operation thus lasted for some 20 months. The events which gave rise to the charge against the applicant occurred on one specific day near the end of that period, 13 October 2012. They covered a very short compass. I do not know the date or dates of the events which gave rise to, specifically, the District Court trial.

13.  The decision in HKSAR v CHOU Shih Bin (2005) 8 HKCFAR 70  at §19 settled the nature of a magistracy appeal as being a rehearing by this court on the material before the magistrate. Bokhary, PJ, observed:

“In arriving at its decision the appellate court will recognise that it does not enjoy the advantage of having received the evidence at first hand which the magistrate enjoyed.”

14.  The magistrate dealt with the issue of cross-examination of the undercover police officer in regard to the trial in the District Court in §§ 26 to 31 and again in §§ 35 to 38 of her Statement of Findings. She appears, on the face of it, there to have addressed any realistic criticisms of her approach towards the specific complaint made concerning her reliance on the evidence of a witness consequent upon findings made in other proceedings. Importantly, the magistrate demonstrated that she was aware of the findings of the other proceedings, having read the Reasons for Verdict in the District Court at least. She went on to make her own assessment of the reliability of the witness insofar as his evidence related to the issues before her.

15.  She also dealt with certain other matters concerning the undercover police officer’s testimony which had been criticised at trial. The magistrate made her own finding of credibility: in addition to the observation in CHOU Shih Bin above it is well settled that an appellate court will be very slow to upset any such a finding. There is nothing, other than the general complaint from the applicant about her approach, which will be at issue during the hearing of the appeal, that persuades me, even prima facie, that the magistrate erred in her approach towards the issue of the credibility of the witness.

16.  If the magistrate were correct in her approach to credibility then the issue of the drawing of inferences arises. The applicant elected not to give evidence, as is his right, which meant that there was no evidence to gainsay that of the prosecution. He did call one person as a witness, whom the magistrate disbelieved, but that witness, in any event, could not even remember whether the applicant had been present in premises at the time.

17.  The magistrate set out in detail the words and acts which the undercover police officer attributed to the applicant at the time of the commission of the offence. She identified a number of individual features. The magistrate took the view that, cumulatively, they led to the irresistible inference that the applicant was acting as a member of a triad society in uttering those words and performing those acts. Whilst it may be, as counsel suggested, that those utterances and acts would be insufficient to lead to the irresistible inference that the applicant was a member of a triad society, the applicant was charged as acting as a member, not being a member, of a triad society. I am not persuaded, even  prima facie, that the magistrate erred in her approach to the drawing of inferences.

18.  It followed that neither ground was made out and the application was dismissed.