HKSAR v. CHOI WANG

FAMC No.12 of 2018

[2018] HKCFA 27

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 12 OF 2018 (CRMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCMA NO. 611 OF 2016)

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REASONS FOR DETERMINATION

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Mr Justice Ribeiro PJ:

1.  At the hearing we dismissed this application for leave to appeal for reasons which we now provide.

2.  The applicant went to the residence of his sister (PW2) and her husband (PW1) where he quarrelled with PW2 and was pushed out of the flat and into the lift lobby by PW1.  The applicant was charged with common assault on PW1 who testified that the applicant had hit him in the shin with an umbrella.  The applicant was unrepresented and cross-examined PW1. When PW2 came to give evidence, she testified that PW1 was “flicked” by the applicant’s umbrella.  However, when cross-examined by him she became emotional and sobbed. 

3.  This led the magistrate[1] to raise the possibility of dealing with this family dispute by way of a binding over order rather than putting the applicant at risk of a conviction and a criminal record.  The prosecution agreed to that course and, with great patience, the magistrate explained the proposal to the applicant.  He was told that if (as the prosecution had indicated) he was prepared to agree that there had been some jostling between himself and PW1 and that his umbrella had touched PW1, and if he would agree to be bound over in the sum of $1,000 not to break the law for a period of 12 months, the charge would be dismissed.

4.  The applicant asked numerous questions concerning the meaning and implications of such an order and the magistrate patiently provided explanations.  As the Judge later noted, the applicant spent a considerable time “sizing up his own situation, weighing the pros and cons”.[2] Eventually, he agreed to the proposal and signed a recognizance dated 12 September 2016 in the sum of $1,000 for 12 months, undertaking “not to commit or attempt to commit any criminal act involving the use of violence or threat of violence against any person”.  The charge was accordingly dismissed.

5.  The applicant then regretted that he had agreed to be bound over and attended a review hearing on 11 October 2016 where he was once more unrepresented.  The magistrate again treated him with great patience, allowing him to make long, convoluted speeches for over an hour saying that he felt aggrieved that he, rather than PW1, had been prosecuted when PW1 had hit him first.  He referred to an incident some months earlier and said that the police had treated him unfairly.  His change of mind reflected what he had stated to be his “ultimate goal” at the original hearing, namely, “to publicly accuse [PW1] of lying”; to get PW1 to apologize and to get him into trouble; as well as to make complaints against the police.  Stopping the trial therefore did not suit his purpose.[3] The magistrate ruled that there were no grounds for setting aside the binding over order. 

6.  The applicant was granted legal aid and appeared by counsel before the Judge who dismissed the appeal, rejecting the grounds which are the same as those advanced in support of the present application for leave to appeal.

7.  This application is made solely on the “substantial and grave injustice” basis.  The Court has frequently emphasised that it does not function as a court of criminal appeal in the ordinary way, and where substantial and grave injustice is relied on, that it must be shown “that there has been to the appellant's disadvantage a departure from accepted norms which departure is so serious as to constitute a substantial and grave injustice”.[4] It is therefore not enough merely to find fault with the decisions below in a manner that might be appropriate on an intermediate appeal.  It must be reasonably arguable that an error or errors have occurred which are so serious as to constitute a substantial and grave injustice to the applicant’s disadvantage, looking at the case in the round.

Time to obtain legal representation

8.  The applicant’s first grievance is that he was not given enough time to obtain legal representation.  Where a leave application is grounded on such a procedural complaint – obviously bearing on the fairness of the proceedings below – it is important to examine the fairness of the overall process.  As this Court pointed out in Lam Siu Po v Commissioner of Police,[5] the right to a fair hearing under Article 10 of the Bill of Rights:

“... does not require every element of the protections conferred to be present at every stage of the determination of a person’s rights and obligations, but only that such protections should be effective when the determination is viewed as an entire process, including as part of that process such appeals or judicial review as may be available.”

9.  This applies to complaints made regarding procedural fairness generally on an application such as the present.  The applicant was represented by counsel funded by legal aid on appeal before the Judge at what was a re-hearing where all the points he might have wanted to raise before the magistrate could be, and were, aired. Indeed, as the Judge pointed out, if he had genuinely wished to instruct a lawyer and needed time to do so, he had ample time to do so for the review hearing.  Moreover, he was represented by leading counsel on legal aid before the Appeal Committee.[6]  It is thus difficult to see how he can possibly have any grievance about lacking legal representation, looking at the process as a whole. 

The basis for making a binding over order

10.  In Lau Wai Wo v HKSAR,[7] the Court held that a person can only be ordered to be bound over to keep the peace if he or she has been guilty of conduct or the threat of conduct involving violence to person or property, or conduct giving rise to a reasonable apprehension that such violence will take place.  An order binding over a person to be of good behaviour has to be based on conduct which involves commission or threat of commission of the actus reus of a criminal offence, or conduct giving rise to a reasonable apprehension of the commission of a criminal offence.

11.  The applicant’s second ground for seeking leave is that no conduct justifying the making of an order was involved.  Mr Arthur Luk SC,[8] went so far as to submit that it was incumbent on the magistrate to obtain an admission from the applicant that he had assaulted or had threatened to assault PW1 – effectively to obtain a plea of guilty – before he would have a sufficient basis for making the binding over order.  That proposition is not reasonably arguable.  Nothing said in Lau Wai Wo supports that suggestion. 

12.  The applicant was on trial for common assault.  Prosecution witnesses testified to the applicant striking PW1 with his umbrella.  The magistrate’s condition for making the binding over was the applicant’s acceptance that there had been jostling and that his umbrella made contact with PW1.  The applicant’s repeated complaint was that it was unfair for him to be prosecuted when PW1 had hit him first.  The recognizance was an undertaking against the use or threat of violence.  There was plainly a basis for apprehending possible violence and for binding him over on either or both of the grounds identified in  Lau Wai Wo.

Inquiry as to means

13.  It was also held in Lau Wai Wo that the magistrate ought to be satisfied that the sum supporting the recognizance is an amount that the person concerned can reasonably be expected to be able to pay, and that “[usually] this would require some inquiry into the person’s means”.[9]

14.  The applicant now acknowledges this ground to be academic since the period has expired and the recognizance was not enforced.[10]  In any event, we do not think there is anything in this point.  The applicant asked many questions about the recognizance and the sum payable thereunder.  He said that he had previously been told that “it was necessary to pay $3,000”[11] and, when informed by the magistrate that he would only need to pay $1,000 if his commitment not to break the law was not fulfilled, he remarked: “... then it is better than [what it was] last time ...”[12]  He then signed the recognizance without suggesting that the sum was beyond his means.

A lack of legal certainty

15.  The next ground relied on involves the suggestion that the binding over order lacked legal certainty as required by Lau Wai Wo.  The principle is that the court’s order must be “sufficiently precise to enable a citizen to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action may entail”, ie, “what sort of conduct would be taken to be a breach” of the order.[13]

16.  There is no doubt that the applicant was sufficiently informed.  He was told that he had to “maintain a good behaviour”, to be “law-abiding without getting into trouble with the law by committing [offences in] cases of a nature similar to these types of assault”.[14]  More particularly:

“Only that you are required to be law-abiding in the coming 12 months without ever committing or attempting to commit any [offence] involving violence-related behaviours, understand? Nor is threatening to use violence allowed. Such things as threatening people, going to hit people, I -, that means, no intimidating people or hitting people is allowed, understand?”[15]

17.  He asked whether the order would prevent him from going to his sister’s home and was told that it did not operate as an injunction against him doing so.[16]

Pressure to agree to be bound over

18.  It was suggested that the magistrate had exerted too much pressure on the applicant to get him to agree to be bound over.  That is not reasonably arguable.  To avoid escalating a family dispute, the magistrate offered the applicant the chance of avoiding all risk of conviction and a criminal record.  Rather than pressuring him to accept, the magistrate exhaustively and patiently answered his questions.  He was not forced to accept the offer.  He was told that if he did not agree, the trial would go on:

“If [you] do not agree, we’ll go on with the trial, see, I have not come to any decision yet; all the evidence is still on my bench, see. If the trial continues, calling of the witnesses will go on, and the trial will of course continue, see. So if you are found guilty eventually, of course a conviction will be recorded, and of course no conviction will be recorded if you are found not guilty, see. The procedure is as simple as that.”[17]

Conclusion

19.  Looked at as a matter of substance, there was no departure from the norms regarding the making of binding over orders established by Lau Wai Wo.  The applicant made an informed decision agreeing to be bound over and signed the recognizance to secure the advantage of having the charge dismissed.  There was no injustice done to the applicant to his disadvantage.  His desired use of a trial as a platform for attacking his brother-in-law and for making complaints against the police was not a proper purpose and was rightly rejected as a basis for setting aside the order.  It is wholly untenable to suggest that the applicant was subjected to a substantial and grave injustice.