HKSAR v. KWOK PO KING

HCMA 457/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 457 OF 2001

(ON APPEAL FROM STCC 700022/2001)

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J U D G M E N T

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1. The appellant, in this case, was convicted after trial of one charge of common assault. She was convicted in the Juvenile court and she was represented by a solicitor in the court below by Mr Chan who also represented her for the purposes of her appeal this morning.

2. The case for the prosecution was that on 16 May the 1st prosecution witness was assaulted by the appellant and several others. PW1 gave evidence that she was on her way home from school together with her friends Cheung Man Wai and Chung Suk Yee when she was intercepted by a fellow student, Cheung Wai Man. (Cheung Wai Man was originally the 2nd defendant in the case but at the beginning of the trial, the prosecution offered no evidence against her.) Cheung Wai Man told PW1 that the appellant had something to say to her, so PW1 walked over to the appellant and another girl and subsequently this other girl hit PW1 once and then the appellant and this other girl, together, hit the PW1. She was hit and kicked in the stomach and fell on the ground, and then there was a boy there who also punched her in the face. PW1 was subsequently examined in the hospital and found to have a fractured nose and swelling on her forehead.

3. The prosecution called 2 witnesses. The 1st witness, as I have said, was the victim of the case and the 2nd witness who was the friend of PW1 that was the girl called Cheung Man Wai. The learned trial Magistrate at the time of the trial had mistaken that this Cheung Man Wai was the original 2nd defendant in the case. So when PW2 proved to be evasive and claimed that she did not know the appellant, the learned trial Magistrate then dismissed her evidence outright on the ground that she was untruthful because she obviously knew the 1st defendant and had been to court several times with the 1st defendant.

4. The learned trial Magistrate's mistake was made apparent when she delivered her findings in her oral verdict. It is unfortunate that her mistake was compounded by the fact that the prosecuting counsel did not correct her mistake. It is incumbent upon counsel appearing before a magistrate or a judge and, in fact, it is a duty that if they see that the magistrate or a judge has made a mistake on the facts they should stand up and immediately correct that mistake. It is not proper to leave it as a mistake at the time, but nevertheless, that was done and the learned trial Magistrate went on to dismiss the evidence of PW2 as unbelievable and rely on the evidence of PW1 to convict the appellant. And it is only in her written statement of findings that the learned trial Magistrate realising her mistake then explained that even if she had known that PW2 was not the original 2nd defendant, it would still not have affected her ultimate verdict, to rely solely on the evidence of PW1, to convict the appellant.

5. This was a case of credibility. It is important that in assessing the evidence that the learned trial Magistrate had her facts right.

6. I have come to the conclusion that if the learned trial Magistrate was right in the beginning, that is, if the learned trial Magistrate knew that PW2 was in fact a friend of PW1, she might have viewed PW2's evidence differently and at the end of the day when she was assessing the evidence of PW1 as against that of PW2, she would need to go through the evidence of PW2 carefully to see whether there are important inconsistencies between the evidence of these 2 witnesses, who were friends.

7. I therefore feel that the learned trial Magistrate's subsequent attempt to cure this defect in her statement of findings was too late. Although Mr Cheng for the prosecution is correct to say that the learned trial Magistrate was entitled to only rely on PW1's evidence to convict the appellant, nevertheless, there is a lurking doubt, in my mind, as to whether her assessment of PW1's evidence would be different, had she not made the unfortunate mistake.

8. So in all these circumstances, I therefore consider that justice has not been seen to be done and the conviction is therefore quashed.

9. I further consider the question of a re-trial. Mr Chan for the appellant submits that there should not be a re-trial as his client has gone through the stress of a first trial and it was through no fault of her own that the learned trial Magistrate had made this mistake. But a court in assessing justice and fairness, must consider justice and fairness to both parties, not just to the defence but also to the prosecution. In this case, there is cogent evidence from PW1 as to what happened to her and it is therefore just and fair that she should get also a proper hearing in court. So balancing the interests of both sides, I feel in these circumstances, therefore, that a re-trial is the only fair way.

10. I therefore order that the appeal be allowed, the conviction is quashed and the case be sent back to the Juvenile court for a re-trial.

11. Costs to the appellant for the appeal, to be taxed, if not agreed.