HKSAR v. LO WAI MAN AND ANOTHER

HCMA655/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.655 OF 2002

(ON APPEAL FROM NKCC 2664 OF 2002)

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J U D G M E N T

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1. The appellants were convicted on 25 June 2002, in respect of the 1st appellant of doing an act tending and intended to pervert the course of public justice, and in respect of the 2nd appellant driving a motor vehicle with alcohol concentration in the blood exceeding the prescribed limited and doing an act tending and intended to pervert the course of justice. They both appeal their convictions.

2. Very fairly, Miss Leung, for the Secretary for Justice who is the respondent of this appeal, concedes that the conviction in respect of each of the charges faced by each of the appellant cannot stand. The principal witness for the prosecution had some years earlier been convicted of an offence, albeit what is now a spent conviction. It was a matter which could affect the credit of that witness and ought to have been brought to the attention of the defence prior to trial, so that the credit witness could be tested against that conviction. It was particularly important in this matter where some contradictions arose in the evidence of the principal witness which the magistrate may have seen in a different light had she been aware of the background of that witness.

3. The appeal in respect of both appellants will be allowed and the conviction set aside.

4. Miss Leung further applies for an order for a retrial in this matter. The question of retrial was dealt with in R v. Holgate (No. 2) [1996] 3 HKC 324 where Mortimer JA (as he then was) said :

" (1) On an application for retrial it was necessary for the court to consider all the circumstances including the seriousness of the offence, the history of the proceedings, the evidence for both prosecution and the defence, the complexity of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and the length of sentence the appellant may have served."

5. In the case before me, the seriousness of the offence warrants a retrial. There was no particular history to the proceedings, the evidence for both prosecution and the defence is not such as to preclude a re-trial in the public interest.

6. It has been argued by Mr Polson that there were inconsistencies in the evidence of the principal witness for the prosecution which may make the obtaining of a conviction more difficult. However, they were not to such a point upon which I could find that a retrial was not warranted. The appeal has been allowed on a technical point, and the matter is still reasonably fresh.

7. There is nothing in my view that would preclude an order for retrial, and I order that the matter be returned to the magistracy for retrial.

8. There will be costs for the appellants here and in the court below.