HKSAR v. WONG CHI HUNG

HCMA745/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 745/2005

(ON APPEAL FROM ESCC 5136 OF 2004)

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J U D G M E N T

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1. This is an appeal against a conviction for criminal intimidation. 

2. The prosecution arose out of an incident that occurred in Eastern Magistracy.     The Appellant in this case was the defendant in a criminal case being tried there.  The nature of that criminal prosecution is not relevant to these proceedings save that it involved as a spectator a lady who was the first prosecution witness in the trial in this case.

3. The Appellant, a serving police officer, had had an intimate relationship with that lady which had broken up in acrimonious circumstances.  What was alleged in this case was that on two occasions outside the court at Eastern Magistracy he uttered threats with intent to alarm PW1.  He did not give evidence at the trial.  The magistrate found PW1, and two other prosecution witnesses who were relevant witnesses to the events, to be reliable and convicted the Appellant.

4. There are a number of grounds of appeal, but the only ones I need mention for the purposes of these reasons relate to a failure to disclose relevant material by the prosecution and the alleged incompetence of defence counsel at the trial.  Both of those grounds of appeal engage certain factual allegations which were being made and are now still pursued by the Appellant to the effect that on the day in question he made a complaint about PW1 and people he believed to be associated with her before she made her complaint of his behaviour.

5. His complaint about the behaviour of PW1 and people whom he believed to be associated with her was one that he reported on the morning of the trial and was investigated by a number of police officers.    At the trial, defence counsel wanted to ask questions about the investigations those officers had made. 

6. Having looked at the transcript it is apparent to me that he was unable to explain to the magistrate clearly enough the relevance of that.  Because of the way he was asking his questions the relevance was not apparent to the magistrate.  With patience, he indicated that he could not see the relevance, but said, “Tell me if I am wrong.” 

7. It is regrettable that defence counsel was unable to advance the simple proposition, “Look, what I am saying is this is tit for tat.  He got his complaint in first which prompted hers.”  Such a consideration would obviously have been relevant.  The relevance was never made clear to the magistrate and when he summarised the defence case at paragraph 11 of the statement of findings he made no mention of it, understandably, in the circumstances. 

8. This is not a case where I am forced to decide whether there had been flagrant incompetence by defence counsel.  His inability to say clearly what his point was merges and overlaps with the point about non-disclosure.  Mr McGowan makes complaint that he can see from material now available that there was a failure to disclose the telephone record of PW1, who was making telephone calls at around the relevant period, and also the notebook of a policeman described as “the court policeman”, who actually fielded the first complaint from PW1.  Mr McGowan’s point is that this put the defence powerfully in the position of being able to demonstrate that her complaint was eight minutes after his complaint.

9. On the material before me it appears that the magistrate was deprived by reason of a combination of the inability of counsel to express himself clearly, and by the failure to disclose this material, of having matters before him which could have affected his judgment.

10. In those circumstances it appears just to me that I allow this appeal and order that a re-trial take place.

11. Mr McGowan sought to resist the order for a re-trial in a measured and sensible way but I am persuaded in the circumstances that it would be right and in the interests of justice, that the matters be concluded by a proper trial.

(Submission on costs)

12. I have heard both parties about the order of costs that would be right to make here and the order I shall make, without any serious argument to the contrary by either side, is that the Appellant will have his costs of this appeal from 1 February 2006 and the costs of the first trial are reserved to the trial magistrate who hears the new trial that I have ordered.  The reason for the costs running from 1 February of this year is that before that date another point was being taken which was abandoned and in respect of that I would not be minded to award costs. 

13. These costs that I have ordered to be paid to the appellant, to be taxed if not agreed, arise after Mr McGowan arrived in the case and took the points upon which I have decided the matter on today.