CHING KWOK YIN v. HKSAR

FAMC No.5 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 5 OF 2000 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 652 OF 1999)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. Last summer the applicant was convicted in the Magistrate's Court on a charge of unlawful wounding. In January this year his conviction was affirmed by Yeung J. He now applies, out of time, for leave to appeal to the Court of Final Appeal.

2. At the trial, the alleged victim, Mr Wong Bun Yuk, gave evidence that the applicant had assaulted him. He said that the applicant had struck him in the face with a grindstone, causing a wound to his forehead and loosening a tooth of his.

3. There is no doubt that Mr Wong suffered injuries of the kind which could - not must but could -   have been caused by an assault such as the one which he alleged. The question was whether those injuries were in fact caused by an assault by the applicant.

4. The applicant gave evidence denying of the assault. There was some suggestion that Mr Wong had been drunk and unsteady on his feet. If so, he could have fallen, thus injuring himself.

5. It appears that there was some pre-existing grudge between the applicant and Mr Wong. That could be a motive for the applicant to assault Mr Wong. But it could also be a motive for Mr Wong to make a false allegation against the applicant. Thus if Mr Wong had injured himself in an accidental fall, the grudge would have given him a motive falsely to attribute his injuries to an assault by the applicant.

6. Having seen and heard the witnesses, the Magistrate felt sure that the truth had come from Mr Wong rather than from the applicant. Normally that would be the end of the matter. But there is a problem in the present case. Unknown to the defence until after the trial, Mr Wong had two criminal convictions. One was in 1991 and was of aiding and abetting breach of condition of stay. The other was in 1995 and was of abstracting electricity, an offence involving dishonesty.

7. The prosecution should of course have disclosed these previous convictions to the defence prior to the trial. But they inadvertently failed to make such disclosure. And such non-disclosure clearly amounts to a material irregularity: since Mr Wong's credibility was in issue; since one at least of the previous convictions involved dishonesty; since the assault alleged sounds improbable; and since the allegation depended entirely on Mr Wong's word.

8. What is the consequence of this material irregularity?

9. As to that, Yeung J said this:

"As an appellate court, this Court must find that unless the failure of the prosecution to reveal the criminal record of a prosecution witness to the defence not only constitutes a grave procedural error, but also renders the conviction unsafe or unsatisfactory, the conviction should not be quashed."

And then the judge said this:

"I take the view that even if the trial magistrate had been informed of the criminal record of Mr Wong Bun Yuk, he would not have varied his finding that Mr Wong Bun Yuk's evidence against the Appellant was believable and reliable."

10. Is that the correct test or is the correct test whether the conviction was inevitable so that the non-disclosure could not have affected the result? And can the conviction stand if inevitability is the correct test?

11. As it seems to us, it is reasonably arguable that substantial and grave injustice has been done to this applicant. Accordingly we extend time and grant him leave to appeal to the Court of Final Appeal on that ground. It may turn out that the Court will decide a point of law of great and general importance in the course of deciding the appeal. But it is not necessary to certify the involvement of any such point. Indeed it seems to us undesirable in all the circumstances to risk circumscribing the appeal by formulating such a point.

12. In the result, there will be leave to appeal on the "substantial and grave injustice" ground.