HKSAR v. OH EUGENE JAE-HOON

HCMA369/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.369 OF 2002

(On appeal from KTCC No.1057 of 2001)

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J U D G M E N T

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1. This is an appeal against the appellant's convictions before a magistrate for offences of common assault, contrary to common law and section 40 of the Offences against the Person Ordinance, Cap.212 and criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200.

2. The offences related to an incident in which the appellant threw rocks in the direction of two large dogs owned by a couple who eventually gave evidence in the case as PW3 and PW4. The dogs at the time of the incident were being walked on leashes by PW1 (the victim of the assault offence) who was employed by PW3 and PW4 as their domestic helper at that time.

3. The assault offence arose out of the throwing of rocks in the direction of the dogs by the appellant while they were being walked by PW1 having being found to have constituted an assault on PW1 in the sense that she, although not struck, was thereby put in fear of imminent violence. The criminal damage offence arose as a result of one of the thrown rocks having been found to have struck the nearby parked vehicle of PW2, who otherwise had no involvement in the case.

4. These events came out of a background of acrimony between the appellant and PW3 and PW4, the owners of the two dogs, which had arisen as a result of those dogs having some three months earlier killed one of the appellant's own dogs.

5. The appellant had also been charged before the magistrate with an assault on PW3 during a confrontation with her and her husband and friends which arose shortly after his assault on PW1. The magistrate found, at the end of the prosecution evidence, that he had no case to answer in respect of that charge.

6. The grounds of appeal advanced by Mr Macrae counsel for the appellant are numerous and involved, but I think for present purposes, can be summarized as follows :

(1) the magistrate did not make satisfactory findings as to the appellant's intent so far as the 1st charged offence of assault and the 2nd charged offence of criminal damage were concerned;

(2) there was no sufficient evidence that any stone thrown by the appellant caused damage to the car of PW2;

(3) the magistrate did not properly evaluate whether the appellant may have acted in self-defence;

(4) that the magistrate was wrong to have accepted the evidence of PW6 and PW7, the two independent eyewitnesses to the events charged;

(5) the evidence of the police interfering with a tape recording made by the appellant was unfairly rejected; and

(6) that there was material non-disclosure of documents relevant to the appellant's case whereby his defence was prejudiced.

7. I will deal with those grounds in order.

8. So far as the 1st ground of the appeal is concerned, Mr Macrae complains that the magistrate did not, in her findings, satisfactorily address the question of the appellant's intent so far as each offence was concerned. He says that the magistrate misapplied the law relating to intent in respect of both offences.

9. It should be remembered in this regard that the prosecution case in respect of both offences was based on recklessness so far as the mental element of each offence was concerned.

10. In respect of the offence of assault, Mr Macrae suggests that the magistrate wrongly applied the Caldwell test (R. v. Caldwell [1981] 2 WLR 509) for recklessness rather than the appropriate Cunningham test (R. v. Cunningham [1957] 2 QB 396), and because of that the conviction, as a matter of law, is fatally flawed.

11. For present purposes, the Cunningham test for recklessness can be expressed as follows :

".... Either (1) An actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm would occur or not (i,e, , the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it). ..."

And Lord Diplock's test in Caldwell for recklessness is as follows :

".... if (1) he does an act which in fact creates an obvious risk that property will be destroyed or damaged and (2) when he does the act and he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it. ...."

12. It is true that whatever was the intention of Lord Diplock when he formulated the test for recklessness in Caldwell as to its general applicability, that test has been over the years restricted in its application. In R. v. Spratt [1990] 1 WLR 1073, the Court of Appeal confirmed that so far as the offence of assault is concerned (and indeed for all offences against the person), the test of recklessness is that in Cunningham.

13. It is recognized that the substantial difference between the two tests is that under Caldwell, an individual is still reckless even if he has not given any thought to an obvious risk and proceeds in any event, whereas Cunningham requires an actual awareness that such a risk exists.

14. Mr Macrae complains that Cunningham was the appropriate test for recklessness in respect of the assault offence of which the appellant was convicted, and that the magistrate applied in error the test in Caldwell and so was wrong in principle. Mr Macrae's assertion that the magistrate applied the test in Caldwell when considering the assault offence is based upon a statement made to the magistrate by the prosecutor during arguments on a no case submission at the end of the prosecution case.

15. The prosecutor said on that occasion : (p.1297) (24)

" I shall then move on to the law. For the offence of common assault, a person is liable if he did an act by which he intentionally or recklessly cause another to apprehend immediate unlawful allowance. In respect of the 1st charge, even if defendant intended to throw rocks at the dogs, he did recklessly cause PW1 to apprehend immediate unlawful violence. The elements of assault are present here.

In respect of the 2nd charge, the issue is whether the defendant was reckless as to whether the property would be damaged. I submit that the test is set out in the case of Caldwell as referred to in Archbold 2001 edition, paragraph 23 and 9. The test is two-fold:

'(a) he does an act which, in fact, creates an obvious risk that property would be destroyed or damaged; and

(b) when he does the act, he either has not given any thought to the possibility of there being any such risk or has recognized that there was some risk involved and has nonetheless gone on to do it.'

Given the circumstances of this case, the act of throwing rocks at someone in an open place has obviously created a risk that someone might get hurt or that some property might be damaged. The defendant either gave no thought to that or ignored the risk, probably due to his hatred for the dogs. In the premises, it is the prosecution case that the defendant was reckless in damaging the red car."

16. Mr Macrae argues that by these comments the prosecutor may have been suggesting to the magistrate that the Caldwell test applied to both the criminal damage and the assault offences. I must say that I do think that there was some confusion in what the prosecutor was saying. It seems to me that the prosecutor may have intended to mention Caldwell's case in the context of the 2nd charged offence of criminal damage only, to which that case does in law apply, but seems then to have gone on and referred to it in a way which suggested it applied generally to both charged offences. But even if the prosecution intended to and did suggest to the magistrate that the Caldwell test applied to both the 1st and 2nd charges of assault and criminal damage and was therefore in error, that is not the end of the matter.

17. On occasions, counsel in court refer to a principle of law in error, or refer to a particular case as authority for an assertion of law which is perhaps incorrect. That does not mean the court accepts that assertion. Further, there is no general duty upon the court to correct every misstatement of the law made before it. The real question is whether the court accepted the wrong statement of law as being correct and so itself then acted in error.

18. In the present case, it seems plain to me that the magistrate did not apply the Caldwell test to the charged offence of assault as suggested by the appellant but, instead, applied correctly the Cunningham test of recklessness. In her statement of findings, the magistrate said a number of things which showed this to be so. Her initial finding was expressed in these words :

".... The Appellant alighted from his vehicle, and he picked up and threw two stones at PW1 and the dogs, causing PW1 to apprehend immediate unlawful violence. He exhibited hostile intent towards her, swearing at her with foul language."

19. This finding was based in part on the appellant's own evidence to the effect that he had shouted at PW1, the maid, to move away "because he was very cautious and she would have been safer if she moved away in case a stone bounced in her direction". From that, the magistrate concluded that the appellant was aware of a possible risk to the maid, as she said in her statement of findings :

"....In his own testimony, the Appellant himself said he was aware of a possible risk to the maid. It was for that reason that he shouted out to her loudly to move away and gestures as well for her to move away. ...."

20. On that basis the magistrate concluded, rightly in my view, as a first step, that the appellant did anticipate that PW1 might be in danger if he threw the stone and that the stone might hit her but went on to throw it in any event. The findings of the magistrate in this regard are well supported by the evidence, and are indeed in significant part based on the appellant's own evidence. Those findings are based on the test formulated for recklessness in Cunningham. There is no suggestion that the magistrate's findings in any way are based on the misapprehension that a complete lack of foresight by the appellant as to the effect of his action upon PW1 would still allow a conviction of an assault offence by way of the Caldwell test. It is obvious that the magistrate determined the mental element so far as the assault offence was concerned on the basis of what risk the appellant actually foresaw. It is true that the magistrate, in her statement of findings, did not set out the blueprint of the law in this regard. She was not obliged to. She has set out sufficient of her reasoning for it to be clear that she was aware that the appellant before he could be convicted of the assault offence was required to be proven to have had foresight of the possible consequences of his acts upon PW1.

21. In this regard, it is true also that the magistrate did not expressly state that she had found that the appellant, in addition to appreciating the risk to PW1 by way of his throwing stones in the direction of her and the dogs, also specifically was aware that his acts might cause her to fear. I do not think that this is a fatal flaw in her considerations.

22. The magistrate found that the appellant, just before or at the time of throwing the rocks in the direction of PW1 and the dogs, was swearing violently at PW1. The eyewitnesses (PW6 and PW7) whose evidence she accepted said that the appellant had, at the relevant time, got out of his vehicle, picked up a rock and started "screaming" at PW1, the maid (according to PW7) and "swearing" at the maid (according to PW6). The words which were used, according to the evidence, seem somewhat inconsistent with the appellant intending to address the dogs.

23. Further, the magistrate found that the appellant throw not one but two rocks in the direction of PW1 and the dogs. Those rocks were variously described by the independent eyewitnesses, PW6 and PW7, as being "the size of a cricket ball" or "slightly smaller than a grapefruit". According to the two eyewitnesses, the throwing of the first rock caused a reaction on the part of PW1 and the dogs. PW1, in her evidence, said she was frightened.

24. The magistrate, in my view, must have inevitably found, given her other findings, that the appellant knew there was a risk his actions taken together as a whole would cause PW1 to apprehend violence.

25. So far as the offence of criminal damage is concerned, the appellant again complains that the magistrate made no proper finding of intent. In this regard, the magistrate said :

" I am satisfied that the Appellant threw the rocks at PW1 and the dogs in the manner as described by the prosecution witnesses, and that one of the rocks did hit the roof of the private car, thereby causing damage to the vehicle. The Defendant in so doing was reckless as to whether damage would be caused to the vehicle. There was no lawful excuse for his act."

26. The magistrate's statement of findings in this regard is somewhat terse. But the evidence accepted by the magistrate was that the parked vehicle owned by PW2 which she found to have been damaged by one of the rocks thrown by the appellant was at a distance of only a few feet beyond PW1 and the two dogs, and in more or less a line with them and the appellant.

27. The proper test to apply in respect of this offence was that in Caldwell. Given the circumstances of the appellant throwing two large rocks in the direction of PW1 and the dogs, they being only a few feet from the parked car and between the appellant and that car, it seems to me that the magistrate could have come to no other conclusion and meant nothing else by her findings but that there was an obvious risk that those rocks, thrown with the force with which they were apparently thrown, would damage the nearby vehicle.

28. I do not think that the magistrate's findings, against the background of the evidence accepted by her, can be said to be wrong. Indeed, it seems to me that no other finding but that the appellant acted recklessly in terms of Caldwell's case could have been made. In this regard, it is true that the magistrate did not embark upon a detailed examination of the appellant's mental state so far as his awareness of the presence of the car was concerned, or whether there was an "obvious" risks in the Caldwell sense that the car would be damaged. But in my view, her finding was sufficient. In the circumstances of the case and on the facts found by the magistrate, no other finding was possible other than that there was an obvious risk that the nearby car, which was in line with the appellant and PW1 and the dogs, and only a few feet beyond them, would be struck by one of the stones.

29. As a penultimate argument relating to the magistrate's findings on intent, Mr Macrae suggests that the magistrate failed to take into account the appellant' mental state in determining questions of his mens rea so far as this offence was concerned. That mental state was described by Dr Lo Chun Wai (DW4) as being "tense and hypervigilant" and "anxious".

30. From that evidence, Mr Macrae then relies on the case of R. v. G; R. v. R. [2002] All ER(D) 261, to suggest that a person of a reduced mental state of some sort may be arguably entitled to consideration under the Caldwell test as a person who simply, by his handicap, would not have been able to recognize any risk even after due consideration of the circumstances. That is because in R. v. G; R. v. R., the Court of Appeal posed the following question to the House of Lords :

"....Can a defendant properly be convicted under s 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?"

31. While that question has not yet been answered by the House of Lords, Mr Macrae suggests that it should be an argument available to the appellant in this case. In my judgment, that is not so. If any new principle does arise from the question posed in R. v. G; R. v. R., I cannot see how it would be applicable to this case. That is because there is no suggestion on the evidence that the appellant's anxiety state was such as to prevent him appreciating an obvious risk. The medical evidence simply did not go so far. Further, the appellant by his own evidence was capable of appreciating an obvious risk to PW1. He claims to have tried to warn her to stand aside so he could safely throw stones at the dogs.

32. In my judgment, the evidence as to the appellant's mental state, if accepted, in no way could have prevented him satisfying the criteria of intent in either Cunningham's case or Caldwell's case.

33. Finally, Mr Macrae spends some time in argument on the principle or doctrine of "transferred malice". That doctrine applies when a person directs his criminal acts at one victim or object and injures unintentionally another victim or object. The doctrine applies to transfer his intent from the original intended victim to the victim actually but unintentionally harmed. One requirement of the doctrine is that the qualitative act actually intended must be the same as the act actually done but not intended : R. v. Henry Pembliton (1874) LR 2 CCR 119; Attorney General's Reference (No.3 of 1994) [1997] 3 All ER 936. So that, if, for example, a person is injured unintentionally, then only if the defendant intended to injure some other person rather than, for example, an object, can his intent be transferred.

34. But that doctrine operates only where no intent can be established on the part of the offender to injure or damage the victim or object who or which was in fact injured or damaged. It has no application in this case because for the reasons I have given, the magistrate has found on the basis of sufficient evidence that the appellant did have the required intent so far as the actual victim (i.e. PW1) and object (PW2's car) of his acts were concerned. Accordingly, the principle of transferred malice simply does not apply.

35. A more substantial criticism made by Mr Macrae so far as the appellant's conviction for criminal damage is concerned, is that there was insufficient proof that the car was in fact damaged by any stone thrown by the appellant. The only direct evidence of the doing of damage to the car came from PW6 and PW7, the two independent eyewitnesses. They were sitting on the verandah of PW6's house, a short distance from where the incident took place. PW7 said that one of the rocks thrown by the appellant struck the roof of the parked car. He described the rock as a "cricket ball sized" piece of concrete and in his evidence said it bounced off the road and struck the roof of the car a "scraping" blow.

36. When PW7 was shown a photograph of the dent on the front right hand side of the roof of the car during his evidence, he did not recollect having seen the rock strike the car roof in the position of the damage as depicted by the photograph. He thought it struck on the right side of the car roof but further towards the front of the car.

37. The defence case was that the dent on the car roof, so far as can be seen in the photograph, was a smooth round dent with no apparent point damage which seemed an unlikely form of injury to be suffered as a result of a jagged piece of concrete striking the car roof.

38. On this issue, PW7, who the magistrate accepted as a reliable witness and who said he had seen the rock thrown by the appellant go through the group formed by PW1 and the dogs bounce on the road and then "scrape" across the roof of PW2's car, had gone to look at the roof of that car about half an hour after the incident together with PW6, and said he saw the damage caused by the rock. He said in evidence that he recollected it as being a "line" across the roof at the front right side of the car comprised of "chips and scratches".

39. PW2, the owner of the car, gave evidence to the effect that he could not be sure if that particular dent in the car roof had been there previously or not, though he had not noticed it before. He eventually said in evidence it was "a 50/50 proposition".

40. PW6, the girlfriend of PW7 who, the magistrate also accepted as a reliable witness, also saw the rock thrown by the appellant, miss PW1 and the dogs, and bounce again off the roof of the car. She also was shown a photograph of the damage and specifically identified the damage to the roof of the car as being the damage she had seen on the car roof when she inspected it with PW1 about half an hour after the incident.

41. She said it was the same damage except that when she had seen it, the point of damage to the roof of the car had been surrounded by very small particles or remnants of the concrete rock, but which had apparently been cleaned off at the time of the photograph being taken.

42. PW6's evidence that she saw damage to the roof of the car surrounded by concrete or rock particles was never substantially challenged by the defence at trial. In any event, it was apparently accepted by the magistrate. It is true that her evidence, particularly as to the nature of the damage that she saw at the time to the roof of the car differed from PW7, but it was common to both PW6 and PW7's evidence that the appellant threw two large rocks at PW1 and the dogs, that the second hit the ground, bounced and then hit the right hand side of the roof of the car with considerable force. PW7's recollection as to the appearance of the damage when he observed it at the time may have differed from that shown in the photograph. But PW6 had no difficulty in evidence agreeing the damage to the right side of the roof of the car shown in the exhibited photograph was the damage she had seen on that car roof a short time after the incident when it was surrounded by rock particulate.

43. The magistrate, given all the evidence, was entitled to, and in my judgment properly did, draw the inference that the damage to the car roof seen by PW6 and PW7 after the incident, and as identified with the damage shown on the exhibited photograph by PW6, was caused by the rock thrown by the appellant.

44. Inconsistencies are to be expected even within and between the evidence of honest and reliable witnesses. It may indeed be a hallmark of the honesty of a witness or witnesses that some inconsistencies do exist in their evidence. In this case, the magistrate was entitled to place no real weight on the difference in description between PW6 and PW7 as to the appearance of the damage they saw to the car roof when they looked at it after the incident. After all, both were firm in their evidence that there had been damage done to that car roof by that rock.

45. As PW7 also said about his own evidence as to his recollection of that damage at the time he saw it, his memory may have been in error as a result of the 12 months which had elapsed between the incident and the trial and his description of the appearance of that damage in evidence may therefore have been mistaken.

46. One is entitled to bear in mind in this regard also that PW6 gave reasons in her evidence as to why the damaged area, when she and PW7 saw it, had a different appearance to the same area of damage shown in the exhibited photograph, i.e. at the time they looked at the car the damage was still surrounded by concrete detritus.

47. In summary, given the evidence that the magistrate accepted from PW6 and PW7, in my judgment, the magistrate was entitled to conclude the thrown rock had damaged PW2's car even if PW2 was uncertain about this.

48. The appellant's next ground of appeal is that the magistrate did not properly address herself to the appellant's defence of self-defence. That defence was that the appellant had been forced to throw stones at the two dogs as they were lunging at him and he perceived himself to be under attack or threat of imminent attack from them.

49. The first complaint in this regard by Mr Macrae is that in her reasons given at the time of her convicting the appellant, the magistrate made no mention of that defence and that she first refers to that defence in her statement of findings.

50. I do not think any difficulty exists with that. A magistrate at the time of conviction is not obliged to provide the offender with every finding or aspect of his reasoning which he has taken into consideration in arriving at his decision. The giving of reasons at that time is for the purpose of giving a convicted person a fundamental understanding as to why he was found guilty. Obviously, for the different purposes of an appeal, the magistrate's setting out of findings and reasoning will often be more comprehensive. There is nothing wrong with that so long as there is no conflict between the reasons given at the time of conviction and those contained within the subsequent statement of findings.

51. In her statement of findings in this case, the magistrate did indeed deal with the appellant's defence of self-defence. She said :

" I am satisfied beyond all reasonable doubt that the Appellant reversed his vehicle into the construction site in question to await PW1 and the dogs. The dogs were leashed at the material time and under the proper control of PW1. The dogs at no time posed as a threat to the Appellant. ....

....

I have considered whether the Appellant acted in self-defence in throwing the stones because of fear of imminent attack by the dogs. The dogs were under the proper control of PW1. There was no imminent attack. I am satisfied beyond all reasonable doubt that the Appellant was there intentionally awaiting PW1 to come with the dogs so that he could do what he did."

52. And from her previous findings, it is apparent that the magistrate had found that the appellant was the aggressor in the incident and that, as a matter of fact, he had not been under any threat from the two dogs on the occasion he threw stones at them. Again, in large part, she relied upon the evidence of PW6 and PW7 in this regard, the two independent witnesses with a clear and immediate view of these events. From their evidence it is plain that the appellant had lain in wait for PW1 and the dogs and had initiated the confrontation with PW1 and the dogs. On the facts found by the magistrate, from the evidence of PW6 and PW7, there was simply no grounding for any defence of self-defence.

53. A complaint of the appellant in this regard is that in basing her findings as to who initiated the confrontation and as to whether the appellant may have been acting in self-defence or not upon the evidence of PW6 and PW7, the magistrate ignored the evidence of PW1 that one of the dogs may have lunged at the appellant.

54. In my view, she did not. The magistrate had properly considered the evidence in this regard. She formed a view that PW1 in saying one of the dogs lunged at the appellant was confused with the events of the incident and a subsequent video tape made for the purposes of the defence case of the dogs which apparently showed them barking and lunging at their front gate and which was shown to PW1.

55. In this regard, the magistrate said in her statement of findings :

" It was also suggested to [PW1] that the male dog lunged at the Appellant. Her evidence in respect of this was quite confused - she was confused whether counsel was referring to the action of the dogs as depicted on the video Exhibit D17 or on the material day. The relevant part is at page 47 of the transcript of the cross-examination of PW1 ..."

She then set out a significant portion of PW1's evidence demonstrating PW1's confusion in this regard. The magistrate was entitled to place no weight on this particular aspect of PW1's evidence and prefer the evidence of PW6 and PW7.

56. Mr Macrae further argues that in any event, the medical state of anxiety that the appellant was in as given in evidence by Dr Lo (DW4) as to the appellant's fear of the two dogs perhaps causing him to believe he was under imminent threat of attack when he was not should have taken into account by the magistrate when considering the issue of the appellant acting in self-defence.

57. I think the answer to that is that the magistrate did take Dr Lo's evidence into account and that on the basis of her eventual findings of fact it did not assist the appellant. As the magistrate said in her statement of findings :

" When asked by the Court that given a scenario that the Appellant had seen the dogs as he drove by, and he drove to a place, stopped his vehicle and waited for the dogs to approach, and when they did so, he threw stones at them, whether that would be self-defence, Dr. Lo opined that that would not be an act of 'self-defence'. Dr. Lo's opinion depended greatly upon what he was told by the Appellant to be the facts."

58. In other words, Dr Lo agreed that on the factual basis which was indeed eventually to form the magistrate's conclusion, the appellant's mental condition would not have been relevant. That is common sense. Whatever the appellant's state of general anxiety at the time of the incident it could not have led him to believe he was acting in self-defence where the appellant himself intended to be the aggressor.

59. I will deal more briefly with the balance of the appellant's grounds of appeal.

60. The appellant complains also that while accepting the evidence of PW6 and PW7 as to the events at the time of the confrontation between the appellant and PW1, the magistrate then inconsistently rejected their evidence concerning a subsequent assault by the appellant upon PW3, the owner of the dogs, who had confronted him after the incident with PW1.

61. I do not think there was any such inconsistency. The alleged assault by the appellant upon PW3 involved him pushing PW3 in the car park area nearby their two houses (they lived near to each other). This car park was a greater distance away from PW6 and PW7 than the incident involving PW1. The prosecution case in this regard was based primarily on the evidence of PW3, her husband, PW4 and their friends, PW5 and PW8. All of those persons had been involved in the subsequent confrontation with the appellant in the car park. PW6 and PW7, although they did give evidence as to what they saw of the incident involving the alleged assault on PW3 by the appellant, both agreed they could not rule out from their observations that the appellant rather than assaulting PW3 had simply being trying to fend off her arm as she was poking him in the face with her finger. Indeed, the defence relied on certain parts of the evidence of PW6 and PW7 to support their case against the alleged assault of PW3. For example, PW7's evidence that he had not seen the appellant twice punch PW3 and one of her friends.

62. It is fair to say that the magistrate where there was any inconsistency between the evidence of PW3 and her husband and friends and PW6 and PW7's evidence for good reason preferred the evidence of PW6 and PW7. That is an approach entirely consistent with her reliance on their evidence so far as the charged offences of assault on PW1 and criminal damage are concerned.

63. The appellant also complains the magistrate wrongly rejected the evidence involving an alleged alteration or "wiping" of a tape recording of a conversation between the appellant and the officer-in-charge of the case, Chief Inspector Stone, PW15. That tape recording was made in respect of an occasion when the appellant spoke to PW15 on the telephone and then, also again, when he went to the police station to be charged. The "wiped" part of the tape involved a recording of the appellant asking a series of questions suggesting to Inspector Stone that he, Inspector Stone, had some personal connection with PW3. That conversation appears on the original of the tape but not on the copy provided to Inspector Stone for the purpose of making a transcript during the trial, at the time when it was returned to the court.

64. The magistrate adequately sets out the background of the appellant's allegations concerning the tape recordings in her statement of findings. It seems to me that whatever the relevance of the "wiped" conversation to the issues at trial, and it appears marginal at best, it could only have related to the charged assault involving PW3. No real material relevance exists, in my view, in respect of any issue involving the present charged offences, the subject of the appeal. The magistrate's finding that she rejected the appellant's assertion that PW15 tampered with the tape recording has no real or significant bearing on the propriety of the appellant's convictions for the assault and criminal damage offences which in no way depended on PW15's evidence but on the evidence of PW6 and PW7 and to a lesser extent that of PW1.

65. Finally, Mr Macrae says there was significant non-disclosure of materials in this case. What had happened in this regard is that the appellant, two days prior to the commencement of the trial, had requested the prosecution provide certain materials to the appellant. Those materials were voluminous. In large parts those materials were in fact provided before or during the trial, but some were not.

66. The duty of disclosure placed upon the prosecution is an onerous one. It is not for the prosecution to determine what in its materials collected during the investigation of a case is relevant to the defence case or not and so disclosable or not. The test is as set out in R. v. Keane [1994] 1 WLR 746 where the court approved the following statement of the law :

"I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution : (1) to be relevant or possibly relevant to an issue in the case : (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use : (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2)."

67. But even where, in compliance with that test of disclosure, the prosecution decides some material does not require disclosure to the defence and does not do so, if subsequently the defence, for its own genuine case preparation reasons, decides that it requires that material and requests it, then the prosecution, in my view, should provide it. That is because they have then been put on specific notice that the material may possibly be relevant to an issue in the case. That does not mean that the prosecution has to laboriously photocopy or duplicate the material. It simply means the defence, in the circumstances of the case, must be given some reasonable view of, or access to, the material.

68. Even if there is non-disclosure of a sort that breaches the rule in Keane's case, that is not the end of the matter. Before that non-disclosure has the effect of rendering a conviction defective in any way, there must be something to suggest the non-disclosure was in fact material in the sense that the non-disclosure may in some practical way have prejudiced the conduct of the defence.

69. In the present case, Mr Macrae says there was material non-disclosure and that as a result the defence was prejudiced. As an important starting point, it is true to say that the appellant's complaint as to non-disclosure is not that there was any material non-disclosure of investigatory materials or information arising out of or gathered by the police investigation into the present offences.

70. The complaint centers about materials relating to the background which existed between the appellant and PW3 and PW4 and their dogs. In June 2000, the two doges of PW3 and PW4 had killed one of two Shih Tsu dogs owned by the appellant. Arising out of that the appellant had launched a series of private prosecutions. He had also complained to the Agriculture, Fisheries and Conservation Department in an apparent attempt to have the dogs of PW3 and PW4 declared dangerous. A flurry of correspondence erupted between the Agriculture, Fisheries and Conservation Department and PW3 and PW4, and between PW3 and PW4 and the Department of Justice arising out of these matters. The correspondence between PW3 and PW4 and the Department of Justice arose as a result of the formers' efforts to get the latter to take over the appellant's prosecutions and halt them.

71. None of these matters had any factual bearing on the present case. Mr Macrae asserts however that certain of the material may have had some relevance in the sense that the appellant's involvement in these other private prosecutions may have encouraged a vindictive motive for his prosecution for the present offences so far as PW3 and PW4 were concerned and perhaps so far, in some way, as the police were concerned, and in addition, may have cast some light on the nature of the two dogs involved in the present offences.

72. So far as the former aspect is concerned, it seems to me to be entirely speculative, if not fanciful, as to the material in the possession of the Agriculture, Fisheries and Conservation Department and the Department of Justice throwing some light on the appellant's prosecution in this case.

73. But in any event, there are good reasons why the appellant's complaint as to non-disclosure must fail. Firstly, it should be borne in mind that a large part of this material requested by the appellant by his letter dated 4 August 2001 was in fact disclosed to him by the end of the present trial. What is being complained of is that some part of that which was requested was not provided.

74. The first general category of documents complained of as being not disclosed is some correspondence between the Department of Justice and PW3 and PW4 during the course of which they, PW3 and PW4, were attempting to have the Department of Justice take over and quash the appellant's private prosecutions.

75. The prosecutor at trial simply refused to divulge all the Department of Justice correspondence in that regard. It may well be that she was right to do so. Questions of public interest immunity would seem likely to attach to correspondence of this sort, though that was never argued. But in any event sufficient of that material was disclosed so as to make it quite obvious in my view that, as a category of documents, it had no bearing on the issues relating to the present assault and criminal damage offences. That material related to the separate and prior event of the killing of the appellant's Shih Tsu and his subsequent attempts to obtain redress in that regard. It in no way could have conceivably contained anything of any weight either excusing or rendering lawful his assault on PW1 and causing of damage to PW2's car.

76. In my judgment, the appellant has failed to show or even to suggest a possibility of prejudice to his present case in respect of the assault and criminal damage offences as a result of the non-disclosure of that material.

77. The next substantive area of non-disclosure relates to the records of the Agriculture, Fisheries and Conservation Department concerned with prior investigations by that Department into the dogs of PW3 and PW4 and correspondence between that Department and PW3 and PW4.

78. I should say this. The duty of the prosecutor to disclose to a defendant materials gathered during the course of an investigation is an onerous one. But it does not mean that a prosecutor has to become an errand boy in gathering materials, which form no part of the investigatory or prosecution materials, for the purpose of the preparation of the defence case. So far as the Agriculture, Fisheries and Conservation Department documents are concerned, the prosecutor in my view had to go no further than to ensure that the appellant was aware that the Agriculture, Fisheries and Conservation Department had, or may have had, materials relating to various complaints and investigations into PW3 and PW4's dogs, and provide the appellant with any such material actually in the prosecution's possession.

79. As I say, the prosecutor in this case, upon receipt of the appellant's solicitors' letter demanding provision of certain Agriculture, Fisheries and Conservation Department documents, indeed did go to that Department and obtain a considerable number of files and reports which were then copied to the appellant. The appellant's letter in this regard was sent to the prosecutor two days before the commencement of the hearing. That is completely unsatisfactory. In my view, the prosecutor went further than she had to in gathering materials to provide to the appellant which formed no part of the investigatory materials in hers or the police possession.

80. In any event, from the materials I have been shown, the Agriculture, Fisheries and Conservation Department documentation generally can have contained no more than that which the appellant already knew or believed to be the case concerning the dogs of PW3 and PW4. If he wanted any material in respect of those matters from the Agriculture, Fisheries and Conservation Department, he could and should have gone and got it himself. It has not been shown during the course of this appeal that there is any basis, other than speculation, that any part of that material which was not provided to the appellant in any event may have contained additional matters of assistance to him above and beyond that which he was already aware of or had been made aware by the material in fact served upon him during the trial.

81. There are some final specific documents not served or disclosed to the appellant which should be dealt with.

82. The first are two statements prepared by PW3 and PW4's domestic helpers (i.e. PW1 and another lady) on 11 August 2000 concerning the killing of the appellant's dog by PW3 and PW4's dogs.

83. The contents of those short letters are presumably intended for the Agriculture, Fisheries and Conservation Department or the police and describe what happened to the Shih Tsu in identical terms. That is Mr Macrae's point. He says while the contents of the letters are irrelevant to the present case, the form of the letters shows that PW3 and PW4 exercised control over PW1 (and their other maid) as to what they said. He suggests that the letters, particularly that of PW1, would have been relevant to the defence assertion at trial that PW1 gave evidence under the influence and direction of PW3 and PW4.

84. It may be that the letters could have had minor relevance to the cross-examination of PW1's credit by trial counsel, but I do not think their non-disclosure could be said to have materially prejudiced the defence case. That is because the convictions of the appellant for assault and criminal damage were based largely on the evidence of PW6 and PW7. The magistrate accepted their evidence when it differed from that of PW1 and the letters in any event were not concerned with any fact relating to those offences of which the appellant was convicted. I do no think the letters could have had such a bearing on the course of the trial so as to render, by way of their non-disclosure, the appellant's convictions unjust.

85. Finally, the fact that PW3 had a conviction under the rabies ordinance in respect of her two dogs was not disclosed. That conviction apparently related to her and PW4's omission to have the dogs inoculated in respect of that disease, or in some other way breaching the requirements for the keeping of dogs.

86. Again, so far as the appellant's convictions are concerned, I do not see how that non-disclosure could in any way have prejudiced his case. Even if that conviction had some bearing on PW3's credibility, which I strongly doubt, she gave no material evidence in respect of the assault and criminal damage offences in any event.

87. Finally, I should say that the magistrate was right to refuse a permanent stay of proceedings as requested by the defence at trial because of non-disclosure. She obviously took the view that substantial disclosure had been made and what was not disclosed was of a nature that the defence in any event was not prejudiced. With that view I agree.

88. For the above reasons, the appeals against conviction are dismissed.