HKSAR v. HA WAI MING PETER

HCMA 72/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 72 OF 2002

(On appeal from WSCC 10084/2001)

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J U D G M E N T

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1. The function of a judge on appeal is to look into all that the magistrate has done to decide whether or not he has done his work properly; to see if he has left out things he ought to have kept in; considered matters he ought to have ignored; to see that he has warned himself about matters that he should be concerned about; and properly explained how he came to his decision.

2. A very large part of a magistrate's task is to decide what facts he is sure are true so that he can rely upon them. That involves a decision by him as to who is telling the truth. That is not a comparison between the defence and the prosecution because unless he is sure the prosecution is telling the truth, he cannot convict.

3. In this case, the principal evidence against the Appellant and against Miss Chan was from PW1, a Miss Allen. She was clearly in dispute with the Appellant; she was clearly angry with the Appellant. The magistrate took all that into consideration. He considered that she may have been biased and lying; he considered whether she, through her anger, she was trying to deliberately affect the Appellant; he had in mind the complaint that she had made against Miss Chan; he was obliged to assume that that would be resolved in Miss Chan's favour. The magistrate having seen and heard PW1 in chief and in cross-examination and having heard what the Appellant said about her, was still of the view that she was telling the truth.

4. The Appellant does not agree with that. He says the magistrate was wrong to believe her and that she was not telling the truth. This is not a retrial. I do not see and hear the witnesses. I must look to whether the magistrate, in reaching his decision to rely on PW1, sufficiently warned himself that she may be a lying witness. He did warn himself, and in very strong terms. Nonetheless, he was satisfied her evidence as to the work done by Miss Chan was the truth and that it amounted to carrying on sales work without a licence.

5. The Appellant argues that the magistrate was biased against him because he believed PW1 and not the Appellant. The Appellant was not clear on the nature of that bias but, a careful perusal of the reasons given by the magistrate, indicates that he preserved the rights of the Appellant throughout. A magistrate has, at some point, to make a decision as to whom he believes and very often the party who is not believed, claims bias without any proper foundation. The Appellant complained of the magistrate not permitting cross-examination and not permitting evidence to go before him. The Appellant accused him of not properly reading a temporary rental agreement carefully. None of this is apparent from the reasons he gives. The Appellant was competently represented by a lawyer throughout the hearing who acted on his behalf and who was in a position to put any shortcomings on the part of the magistrate, to the magistrate.

6. Almost all the complaints of the Appellant relate to findings of fact. The magistrate has approached the facts correctly and I will not disturb his decision. The complaints of the Appellant on findings of credit and other matters are not supported by the reasons and I find no basis in them. The appeal against conviction is dismissed.

7. In respect of the appeal against sentence, the Appellant argues that it is too high. The magistrate concedes at the time of his passing sentence, he thought the maximum sentence for the offence for which the Appellant was convicted, was $100,000. He admitted that he later discovered that the offence bore in fact a maximum fine of $50,000. I have helpfully been provided by Miss Cheng with a list of convictions, the plea and the penalties in respect of cases under the Estate Agents Ordinance from 1999 to 2002.

8. Offences such as yours are not common and their prevalence does not require an element of deterrence. Pleas of not guilty such as yours have carried penalties from $1,500 to $10,000. In all the circumstances of this being a commercial transaction and part of the running of your office, but bearing in mind the mistake as to the maximum penalty and the grievance that you may feel from that, I think an appropriate remedy is a fine of $5,000 and the appeal against sentence is allowed to the extent that the fine of $30,000 is set aside and a fine of $5,000 is to be paid within 7 days, in default of which a period of 2 days' imprisonment be imposed.