HKSAR v. WONG PAK SHING t/a C & P PHARMACY

HCMA92/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL HCMA NO.92 OF 1998

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J U D G M E N T

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1. The Appellant was convicted of an offence under s.15 (1) of the Employment Ordinance, namely, that as the employer of an employee, he did terminate the contract of employment with the employee under s.6 of the Employment Ordinance, after she had given notice of her intention to take maternity leave and before the expiry of her maternity leave or the date of cessation of her pregnancy.

2. As a result of the conviction, the Appellant was fined $9,000 and ordered to pay costs of $1,500. He now appeals against the conviction.

3. One of the grounds relied upon by Mr Kenneth Chan, appearing for the Appellant, is that the learned Magistrate should not have allowed the prosecution to produce in evidence tapes of conversations between the Appellant and PW1 at the stage of PW1 having finished her evidence-in-chief and whilst she was being cross-examined by the Defence. It is said by Mr Chan that the learned Magistrate has misunderstood the basis upon which the prosecution sought to put in the tapes at that late stage. At any rate it is said that the purported basis put forward by the prosecution for putting in the tapes was a wrong basis and what, in fact, the prosecution was trying to do was to have, as Mr Chan put it, a second bite of the cherry.

4. I should mention that the trial, through no fault of the Magistrate, took an inordinate time to complete, namely, five days, for the one charge which I have mentioned. The question of whether or not to allow the tapes to be admitted at that admittedly late stage was a matter of discretion for the Magistrate and I can find no basis for saying that the Magistrate was wrong to have exercised the discretion in favour of the prosecution.

5. What is more troubling is the fact that the learned Magistrate appeared to have used the tapes as evidence to assist him to assess the credibility of PW1. PW1 was the employee in question, Madam Ng Yin San, and she was the only witness for the prosecution. Her credibility as a truthful witness was absolutely vital because on many important matters, her evidence was directly opposite to the evidence by the Appellant himself. In addition, unfortunately the learned Magistrate also used the contents of the tapes to corroborate the evidence of PW1. This is evident from p.183 of the bundle where the Magistrate had set out his reasons for his verdict.

6. Mr To for the prosecution contends that where a tape recording of a conversation contains admissions by the appellant, then a Court is entitled to use the admissions contained in the tapes to corroborate the evidence of the prosecution witness.

7. That is true insofar as it goes, but it is clear that other than for that limited purpose, a tape recording cannot be used to corroborate the evidence of a prosecution witness because a tape recording of a conversation involving the prosecution witness is not evidence from an independent source which is what corroborative evidence should be. If the learned Magistrate had only used the admission by the Appellant contained in the tapes as evidence against the Appellant, subject to his being satisfied that the admissions were voluntary admissions and were not admissions made to a person in authority, that would be permissible. Unfortunately, it does not appear that that was what the Magistrate was using the tapes for.

8. At p.183 of the Statement of Findings, the learned Magistrate finds that PW1 was a honest and reliable witness whose evidence he could depend upon, and he said he accepted her evidence. But then he said that her evidence of her conversation with the Appellant between the days of 28th February 1997 and 3rd March 1997, as contained in the tapes, were supportive and corroborative of her evidence.

9. There were certain matters in her evidence which were disputed and quite clearly the Magistrate was using evidence of what she said in the tapes to corroborate her evidence on those matters. On p.184, the Magistrate was assessing whether PW1 was a credible witness, and he mentioned certain matters which he took into consideration in assessing that particular matter. One of the matters which was disputed was whether during a particular conversation, the Appellant was present. The Magistrate then said that the contents of the tapes could be proof of the fact that the Appellant was present.

10. So, to my mind, the learned Magistrate was not only using the admissions contained in the tapes as evidence against the Appellant, but quite clearly was using the tapes as matters to assist him with the credibility of PW1 and also as matters to corroborate the evidence of PW1. In the end, the Magistrate accepted the evidence of PW1 and rejected the evidence of the Appellant.

11. I would not have interfered with that finding had it not been for the fact that the Magistrate had, as I have mentioned, used the tapes to corroborate the evidence of PW1. Accordingly I must allow the appeal and quash the conviction.