HKSAR v. CHONG HO YIN

HCMA411/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 411 OF 1998

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J U D G M E N T

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1. The Appellant was convicted by Mr Richard Donald, sitting in Eastern Magistracy, of the offence of common assault and was fined $1,500 and $1,000 costs on 15th April 1998. He now appeals against his conviction.

2. The allegations were that as a police officer on duty, he had been despatched on 3rd May 1997 to a football pitch in the Happy Valley Sports Ground, Wong Nai Chung Road, to investigate a complaint against some boys lodged by a caretaker of the Sports Ground. The allegation is that during the enquiries of some of the boys, the Appellant slapped one of the boys on the face. The trial took two days to complete and the prosecution called three of the boys, including the alleged victim.

3. There were two medical examinations of the boy, the first of which was on the day of the alleged assault, namely, 3rd May 1997, at the Tang Shiu Kin Hospital where a doctor of the Accident and Emergency Department examined the complainant at 6:48 p.m. and found a perforation of the inferior part of the left ear drum. He was then referred by that doctor to the specialist clinic at Tang Chi Ngong, and it was there, at the specialist clinic, that the complainant was examined by another doctor on 7th May 1997. Physical examination by the second doctor showed that there was no external wound over his face and pinna, and that the external ear canals and tympanic membrane were normal and intact on both sides, and there was no facial bone fracture nor cranial nerve lesion noted. A tuning fork test was made to screen for any hearing problem and the result was that hearing was normal. The specialist doctor arranged for a follow-up examination seven days later but the complainant failed to keep that appointment.

4. So on the face of the two examinations, there appears to be a conflict of some sort in that, the perforation of the inferior part of the left ear drum of the complainant found by the first doctor on 3rd May appeared to have completely vanished four days later when examined by the specialist doctor. The two doctors in question were not called to give evidence but their evidence was agreed by way of formal admissions, and the results of their examinations and their medical reports were produced as exhibits for the trial Magistrate to consider.

5. The problem arose in this way. Because of this apparent conflict in the medical evidence as was apparently the custom of the Complaints Against Police Office, the matter was referred to a forensic pathologist for his opinion on the apparent conflict. In this particular case, the matter was referred to a forensic pathologist and on 6th August 1997, Dr. H.K. Mong, the Consultant Forensic Pathologist in-charge, gave the following opinion by way of a minute addressed to the Superintendent CAPO :

" The ENT doctor found no injury to COM1's ear-drum. It follows therefore that COM1's allegation of having been slapped on the left face once could not be proved or disproved because of the absence of any positive medical findings on examination."

This minute was contained in the police file which should have been passed, together with the other papers of the case, to the solicitor prosecuting this case on a fiat. Whether the solicitor, having seen this minute, made the decision not to disclose such facts to the defence, or whether the solicitor in question did not peruse or study the file carefully enough to have noticed this minute is a matter of some uncertainty.

6. Be that as it may, I think that the omission by the solicitor in question justifies, or would justify, the Director's re-considering this solicitor's qualification to remain on the Director's list of practitioners to be briefed to prosecute. That is a matter for the Director and does not concern me.

7. Mr Chandler, appearing for the Appellant, has submitted that this was a material document which should have been disclosed, and because of its non-disclosure, this has resulted in a material irregularity in the conduct of the trial. The material irregularity, submitted Mr Chandler, is such that the conviction should not be allowed to stand. As I understand Mr Chandler's submission, he submitted that he does not have to show that the conviction has been rendered unsafe because of this material non-disclosure because of the fact that in Magistrates' appeals in Hong Kong, there is no proviso.

8. Mr Cheung, appearing for the prosecution, submitted that this particular document was not material because the charge is only one of common assault, and not of wounding or assault occasioning actual bodily harm where the prosecution would have to show not only an assault, but some injury or some wound to the victim.

9. I quote what was stated by the Court of Appeal in England in R. v. Keane [1994] WLR 746, and in particular, the judgment of Lord Taylor CJ as regards what a material document is. The Court of Appeal says :

"..... As to what documents are 'material' we would adopt the test suggested by Jowitt J. in Reg. v. Melvin (unreported), 20 December 1993. The judge said:

' I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).'"

In my judgment, this opinion by Dr Mong was clearly a material document which should have been disclosed.

10. Mr Chandler submits that if the document had been disclosed, the trial would have been conducted differently. He suggests that if the document had been disclosed, all three doctors would have been summoned to give evidence and all three doctors would have been examined in some detail on the existence, or otherwise, of the alleged perforation of the ear, and matters like how or why that perforation could have disappeared four days later, would have been gone into. The Pathologist who gave the opinion on the apparent conflict would also have been examined as regards his views on how the Court should deal with this conflict in the medical evidence.

11. Mr Chandler relies on the case of R. v. Maguire and Others [1992]2 AER 433 to substantiate his submission that :

" A failure on the part of the prosecution to disclose to the defence material documents or information which ought to have been disclosed may be a material 'procedural' irregularity in the course of the trial providing grounds for an appeal against conviction to be allowed ...."

I think that is quite clear in law and is now settled that if a document is material and is not disclosed by the prosecution to the defence, that could result in a material irregularity which may render the conviction unsafe.

12. The fact that the prosecution are under the same duties of disclosure with regard to unused material in summary trials, as they are in trials on indictment, is held to be so in the English case of R. v. Bromley Magistrates' Court, ex parte Smith and Another [1995]1 WLR 944.

13. The problem in this particular case is, despite Mr Chandler's criticisms of the quality of the evidence of the three boys who gave evidence, the learned Magistrate did accept the evidence of those three boys. The learned Magistrate, after he had given his verdict of guilty and after having given his brief reasons in open court, was made aware of this problem having arisen in submissions to him by Mr Chandler and the solicitor prosecuting when the solicitor, in my view, erroneously claimed privilege for that document and claimed that that was the reason why disclosure was not made.

14. Having been alerted to this problem, the learned Magistrate, when he wrote up his Statement of Findings, perhaps with a lot of candour, said that he, relying upon the medical evidence and the evidence of the three prosecution witnesses, found that the complainant had been slapped. In the preceding paragraph he said that he accepted the evidence of the three prosecution witnesses that the complainant had been slapped on the face once. He says :

"This evidence was supported by the medical evidence. PW2 had gone to hospital immediately after the assault. The medical report which followed the examination revealed the perforation on his left ear drum. PW2 had been referred to the Ear, Nose and Throat Clinic."

He did not refer at all to the second examination when no injuries were found and the perforation was found to have disappeared. He was not in a position to refer to the Pathologist's opinion because that was not in evidence before him. Nevertheless, as I said, he did not refer to the second examination and he did say in terms that, relying upon the medical evidence, he found that the complainant had been slapped. There was no attempt by him to try and resolve the apparent conflict between the two examinations of the complainant. It may well be that there was a perfectly simple and natural reason for the apparent conflict in that the perforation could have a variety of medical reasons to disappear after four days but in my judgment, the learned Magistrate was bound to refer to the apparent conflict and try to resolve it. The problem is he says that he was relying upon the medical evidence, and the medical evidence quoted by him in his Statement of Findings is simply the existence of the perforation.

15. It is for that reason that I have decided that this conviction cannot be allowed to stand. I think it follows from what I have said above that, firstly, this document was material; secondly, that the document should have been disclosed to the defence; and thirdly, unfortunately because the learned Magistrate relied upon the medical evidence which he quoted and did not attempt to resolve the apparent conflict, this did have the effect, as Mr Chandler submits, of the quality of the evidence of the complainant having been boosted by the medical evidence.

16. I therefore allow the appeal and the conviction is quashed. Mr Cheung has not requested that the matter be remitted back to the Magistracy for a retrial because in his view, the evidence is not strong enough, and in his view there could be a doubt in the evidence to be adduced by the prosecution if the matter were to be re-tried. I therefore do not order a retrial.