HKSAR v. HIP HING CONSTRUCTION CO. LTD.

HCMA 1028/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.1028 OF 2000

(ON APPEAL FROM TUEN MUN MAGISTRACY NO.TMS 5935 OF 2000)

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J U D G M E N T

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1. On 12 of September this year the Appellant was convicted after trial in Tuen Mun Magistracy of an offence of causing construction work to be carried out otherwise in accordance with the condition of a construction noise permit contrary to Section 6(2B) and Section 6(5) of the Noise Control Ordinance, Cap.400. The Appellant was fined $100,000.00 for the offence and appeals against both conviction and sentence.

2. The grounds of appeal against conviction are these : firstly; there was a material irregularity during the course of the trial in that the learned Magistrate directed that the admission of evidence by the prosecution relating to the security of the site in question was irrelevant, inadmissible and potentially prejudicial for the purposes of his determination of the issues in the case.

3. Secondly; having given such direction the only reasonable conclusion left open to Counsel for the Appellant was that the evidence relating to the security of the site was neither relevant nor admissible. Counsel for the Appellant advised (which advice the Appellant duly accepted) that the Appellant should therefore neither give nor call evidence relating to the issue of site security. This represented a decision based upon a conclusion which counsel may very well not have reached, had it not been for the direction given by the learned Magistrate.

4. Thirdly; notwithstanding his direction, the learned Magistrate thereafter made repeated reference (both in his evaluation of the evidence and in his reasons for verdict) to the lack of evidence of security supervision at the site as being a factor relevant to his determination of the issue of guilt.

5. Fourthly; the fact that the learned Magistrate referred to, and relied upon evidence which he had decided was irrelevant, inadmissible and potentially prejudicial amounted to a material irregularity, and in all the circumstances, the Appellant was deprived of a fair trial according to law.

6. I am in no doubt that there was a material irregularity in this trial in that the learned of Magistrate having ruled, at least on the face of the transcript and with the active support of counsel for the Appellant at trial, that certain evidence was irrelevant and thus inadmissible, proceeded to convict the Appellant in part upon such evidence or, perhaps more importantly for the purposes of this appeal, upon the lack of it.

7. There was a lack of such evidence from the Appellant because, so I am told today by Mr Richmond (who appeared both in the trial and before me), it was by direct reason of the learned Magistrate's apparent ruling that no such evidence was called. And it must follow from that, that such evidence would have been called by the Appellant if it had been appreciated that reliance was going to be placed upon the issue of site security by the Magistrate in coming to his verdict. Whether the calling of such evidence by the Appellant would have availed it anything at all, as Mr Madigan for the Respondent argues is, in my view, highly doubtful, but that is not a matter for my consideration in hearing this appeal.

8. I allow this appeal. I set aside the conviction and sentence and order that the case be returned to the Magistracy for a new trial before another Magistrate.