HKSAR v. CHENG MAN LEUNG AND ANOTHER

HCMA856 & 1036/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.856 AND 1036 OF 2005

(On Appeal From KCCC 3331 OF 2005

---------------------------

----------------

------------------------

J U D G M E N T

------------------------

1. The present appeal arose from two cases.  The two appellants are now appealing against their conviction in relation to two charges that they jointly faced in the first trial, namely, criminal damage, contrary to section 60(1) of the Crimes Ordinance, Cap.200 and assault occasioning actual bodily harm, contrary to Common Law and punishable under section 39 of the Offences Against the Person Ordinance, Cap.212.  The 1^st appellant further appeals against his sentence of six months’ imprisonment, three months of which were ordered to be served consecutively in relation to a criminal intimidation charge.

Facts of the cases

2.  In the first case, the victim, a taxi driver alleged that the two appellants were amongst a group of five people who assaulted him with hammers and wooden poles and smashed the lights and windows of his taxi.  He was the only witness for the prosecution.  The victim admitted to have seen the two appellants prior to the incident.  The defence ran at the trial was one of mistaken and unreliable identification, due to possible grudges between the 1^st appellant and the victim.  The appellants made no admission on their arrest, and did not give evidence at the trial.  The magistrate, having satisfied himself with the identification evidence of the victim, convicted the two appellants accordingly.

3. In the second case, an undercover police officer posed himself as a taxi driver to investigate malpractice of taxi drivers.  At the material time he stopped behind the 1^st appellant’s taxi.  The 1^st appellant got off and scolded him.  Amongst all things said, the 1^st appellant told him that he would bring others to beat him up if he should refuse to leave.

Grounds of appeal against conviction in HCMA856/2005

4. The main ground is that new evidence since the date of the appellants’ conviction has become available which would either in itself cast doubt upon the victim’s identification evidence, or which, if assessed together with the various unsatisfactory aspects of the victim’s evidence, would render the conviction unsafe and unsatisfactory.  Further or in the alternative, counsel for the appellants sought to argue that the magistrate erred in refusing to reopen the case to receive that piece of new evidence.

Grounds of appeal against sentence in HCMA1036/2005

5. Counsel submitted that given that other magistrates in two related cases of similar nature had sentenced other defendants to suspended sentences, the 1^st appellant’s sentence of six months’ immediate custodial sentence was manifestly excessive.

Respondent’s reply

6. Counsel for the respondent argued that the appellant court is only concerned with whether the evidence adduced at the trial supported the conviction (written submission paragraph 47).

7. It was submitted that an application pursuant to section 118(1)(b) of the Magistrates Ordinance, Cap.227 is required before this court could consider whether to receive the additional evidence, and this court has to be satisfied with certain prerequisites on this application.  Counsel for the respondent further submitted that this piece of alibi evidence could not be said to be “likely to be credible” and whether it would sway the assessment of the victim’s identification evidence is no more than a mere speculation.  Counsel further submitted that the reason given so far for the failure to adduce at the trial this piece of evidence does not constitute “a reasonable explanation”.  It is worth noting that the appellants have since filed the application and the requisite affirmations.

8. Lastly, it is submitted that the appellants could only avail themselves of section 113 of the Magistrates Ordinance to institute an appeal against conviction.  The cannot appeal against the magistrate’s refusal to grant a review to receive additional evidence.

Judgment

Appeal against conviction in HCMA856/2005

9. I shall first deal briefly with the point as to whether the appellants can appeal against the magistrate’s decision to refuse to hear additional evidence.  It is clear from the wordings of section 104 of the Magistrates Ordinance that a review involves two different steps : an application for a review and the review hearing.  Sometimes magistrates deal with the two together.  In the case of HKSAR v. Fong Chun Kwok, HCMA417/2001 deals with the situation where the magistrate refused to grant an application for a review of his decision, to which section 104(10) applies.

10. I refer to the transcript at the hearing (appeal bundle page 83U) where the magistrate said that he was “hearing an application for review”.  At page 88H, the magistrate said this :

“So, in those circumstances, it is right that both you and your co-accused should be involved in this decision, whatever it is.  And for that reason I refuse the further applications.

Your application for review succeeds as to the extent of the alteration to the sentence that I have already made.  Otherwise I confirm the conviction at the end of the trial.”  (Emphasis added)

11. In his supplementary Statement of Findings dated 7 November 2005 (at appeal bundle page 71), the magistrate had this to say :

“I heard the application for review on 31^st October 2005 when counsel applied that I hear fresh evidence … I refused that application.  Counsel applied for a review of the case … I reviewed my verdict in the case, but, having done so, I confirmed that verdict in respect of both charges. …”  (Emphasis added)

12. It is difficult to understand what the magistrate meant by refusing the application for review and then went on to review and confirm the verdict.  If an application for review is refused, the matter stops there and then.  The verdict stands and the refusal of the application or refusal to grant a review is non-appeallable.  Section 104(10) is clear on this.  Unfortunately, what the magistrate said in his supplementary Statement of Findings seems to mean that he had indeed reviewed his verdict.  If that is the case, section 104(10) which applies only to “refusal to grant a review” does not apply in the present case since there had actually been a review. 

13. Counsel for the appellants realistically concedes that she is not asking this court to hear this additional piece of evidence and to judge it in the light of the victim’s evidence from the transcript, but rather to seek to quash the conviction and a retrial before another magistrate.  Whether this is an appeal against the conviction or against a determination to refuse to admit new evidence does not make much difference.  The crux of the matter before me is whether the fresh evidence renders the conviction unsafe.  The test is not whether the new evidence raises a reasonable doubt.

14. In dealing with the receiving of fresh or additional evidence on appeal, section 118(1)(b) of the Magistrates Ordinance gives the judge similar powers that the Court of Appeal would have had under section 83V of the Criminal Procedure Ordinance, Cap.221.  The criteria for receiving such evidence is as below :

“… where evidence is tendered to the Court of Appeal thereunder the Court of Appeal shall, unless it is satisfied that the evidence, if received, would not afford any ground for allowing the appeal, exercise its power of receiving it if —

(a)   it appears to it that the evidence is likely to be credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and

(b)   it is satisfied that it was not adduced in those proceedings but there is a reasonable explanation for the failure to adduce it.”

15. The fresh evidence sought to be adduced is in the form of an alibi.  Whilst particulars of the Grounds of Appeal and the affirmation have both sought to set out the explanation for the failure to adduce such in detail, I shall now summarize this heavily in order to make this judgment comprehensible.

16. This evidence seeks to establish that at the material time the 1^st appellant was not at the crime scene, and that he was allegedly involved in an accident at Lok Ma Chau.  The driver of the other vehicle involved had signed a settlement agreement with the 1^st appellant and was prepared to give evidence for him.  It was said that 1^st appellant had forgotten about the said accident by the time of his trial and it was when he went through the company records of the taxi company from which he hired his taxi that his memory was refreshed.  The details of the other taxi driver only became available from the Transport Department after the first day of trial.  An explanation was given as to why the owner of the taxi company was not called at the trial to give evidence to produce the said record of settlement.  This was allegedly in accordance with counsel’s advice against the state of information available by then.

17. Whether the additional is “likely to be credible” must be considered in the context of all the evidence and not in isolation.  The alibi evidence sought to be adduced comes from an independent witness, a driver of another vehicle who was involved in an accident with the 1^st appellant at the time that the victim said the present incident happened.  It is not just a bare allegation, since there exists a piece of settlement document with the details of time and date and signatures of both parties as well as their respective identity card numbers.  That is the state of this additional evidence as it stands.  What weight to be attached to this evidence, and whether this evidence has any bearing on the victim’s evidence remains largely a matter for the trial magistrate.  I am not concerned at this stage with whether this new evidence would raise a reasonable doubt.

18. In the case of HKSAR v. Ip Yiu Fai, HCMA454/2001, no explanation had been advanced as to why the additional evidence sought to be adduced on appeal was not so adduced at the trial.  In the present case, an explanation has been given.  Counsel for the respondent had submitted that veracity of the 1^st appellant in his supporting affirmation should be tested against counsel and solicitors or solicitor’s clerk that represented him at the lower court.  I find that as an unwarranted gloss on the plain words of “a reasonable explanation for the failure”.  In any event, trial counsel as well as a clerk from Messrs Ivan Tang & Co. have both filed affirmations in support of what the 1^st appellant said in his affirmation.

19. I am satisfied that the additional fresh evidence, if received at the trial, might have a bearing on the assessment of the credibility and reliability of the evidence of the victim as to render the convictions of both the appellants unsafe and unsatisfactory.

20. The appeal against conviction by the 1^st and 2^nd appellants are allowed.  Conviction quashed and sentences set aside and I order the case to be remitted back to the Magistracy for a retrial before another magistrate.

Appeal against sentence by the 1^st appellant in HCMA1036/2005

21. The magistrate has rightly pointed out that the appellant threatened others with a view to monopolizing business at the spot.  The threats, whilst not death threats and certainly not triad related, had a territorial flavour, aiming at driving other taxi drivers away, and depriving them of a chance of equal competition.

22. The range of criminality in cases of criminal intimidation is wide, as there can be a variety of situations.  Whilst counsel for the appellant refers me to two other cases allegedly of similar nature to the present where the defendants therein received suspended sentences, the fact that other magistrates have been passing more lenient sentence is not a basis for reducing sentence.  In any event, there might be special circumstances in respect of those defendants which justified a suspension of the immediate terms of imprisonment which is absent in the present case.  What I am concerned here is whether the sentence passed by the magistrate in respect of this appellant is appropriate in the circumstances of this case.

23. I am of the view that the facts of the present case are comparable to the case of HKSAR v. Chan Siu Ping, HCMA770/2000.  That case concerns threats uttered to frighten off the victim not to work in any casino ship or else she would be thrown overboard into the high sea.  In the present case, the appellant aimed at creating a fear which would cause alarm to the victim.  The message sent was that the victim should be very wary of queuing there to compete for business again.  In the case of Chan Siu Ping, a six months’ imprisonment on a plea was upheld on appeal.

24. This appellant, the 1^st appellant, is not a newcomer to the criminal courts.  He has six previous convictions, one similar in nature, whilst others are mostly violence related.  The magistrate adopted a starting point of nine months’ imprisonment, and having full regard to his plea, sentenced him to six months’ imprisonment.  Whilst this sentence might be said to be on the high side, it cannot be said to be manifestly excessive.  However, I note that the magistrate ordered three months out of that to be served consecutively to the sentences in HCMA856/2005.  I take into account now that the conviction in HCMA856/2005 is quashed with sentence set aside, I shall tinker with this original sentence and replace it by four months’ imprisonment.