HKSAR v. POON KA WING

HCMA38/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.38 OF 2000

(ON APPEAL FROM ESCC NO.698 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 17 November 1999 of two charges of furnishing false information to The Hongkong and Shanghai Banking Corporation Limited ("the Bank") in respect of loans. He was sentenced on 1 December 1999 to six months' imprisonment in respect of each of the charges, each sentence suspended for 12 months' and the sentences were to be served concurrently. He now appeals that conviction.

2. The first ground of appeal is that :

"The learned Magistrate found as follows :

'After hearing the prosecution evidence, I was satisfied that the prosecution had proved beyond all reasonable doubt of the guilt of the appellant in respect of the two charges without the need to refer to the record of interview. I disbelieved the evidence of the Appellant and convicted him accordingly.'

The learned Magistrate erred in law by failing to consider at all the Appellant's record of interview, in particular the exculpatory part of what was a 'mixed' statement. Accordingly, the learned Magistrate did not properly consider the defence."

I do not need to go into the facts of this matter. The complaint made against the reasons is a valid one. It may be that it was unfortunate in the manner in which the magistrate worded his findings, but on the face of his record, it would appear that he did not take into account, when considering whether or not the charges had been made out, the exculpatory part of a 'mixed' statement given by the appellant.

3. Mr Reading concedes that it may well be that I will take this view although raising some arguments in response to the ground of appeal.

4. It is my view that there has clearly been an error and this conviction cannot stand. The appeal is allowed and the sentence is set aside.

5. An application has been made for a re-trial which is resisted by Mr Macrae. He argues that there is no loss to the Bank - the loan having been repaid prior to its being detected; that the matter is some years' old now, having been taken place in 1996, and that the magistrate was of the view that the seriousness of the offences did not warrant more than a six months imprisonment suspended for 12 months. He argues further that it is not a strong case praying in aid those matters dealt with in his second ground of appeal.

6. Mr Reading, on the other hand, argues that the case does have strength, and that the matter ought, in the interest of justice, to go forward for a re-trial.

7. Having considered the arguments from both counsel, I am of the view that a re-trial is not merited in this case, and I make no such order.

8. An application is also made for costs which is not resisted and perfectly properly so. There will be an order for costs in favour of the appellant here and in the court below, to be taxed if not agreed.