HKSAR v. LI KWOK PANG AND OTHERS

HCMA 174/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 174 OF 2000

(On Appeal from Tsuen Wan Magistracy Case No. TWCC 2678 of 1999)

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J U D G M E N T

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1. The 3 Appellants were convicted after trial of 2 charges of assault occasioning actual bodily harm in the Tsuen Wan Magistracy on 24 August 1999. They now appeal against their convictions and sentences.

2. The appeal against conviction does not turn on the magistrate's handling of the case. The ground relied upon is that there has been a material irregularity in the trial in that the prosecution had failed to disclose to the defence all the previous convictions of one of the prosecution witnesses, PW1.

3. The prosecution's case is that on 7 July 1999, as a result of certain telephone conversations, the 2 prosecution witnesses, PW1 and PW2, went to the 1st Appellant's place in Ha Leng Village. Upon their arrival, they were assaulted by the 1st and 2nd Appellants. Later on, the 3rd Appellant joined in the assault. The two prosecution witnesses did not report the assault to the police, but returned home to rest. On the following night, PW1 sought medical treatment from Pok Oi Hospital. As a result of enquiries made by the police officer at the hospital, the assault came to light. It is common ground that the Appellants and the prosecution witnesses were known to each other prior to the incident. However, the 2 prosecution witnesses in their initial statements to the police, had not disclosed the identities of the assailants. It was only on a subsequent occasion that they revealed the identities of the assailants to be the 3 Appellants in this case. The explanation given by PW1 and PW2 in Court for not disclosing the identities of the assailants in the first instance was that they were afraid of retaliation.

4. The 1st and 2nd Appellants had elected to give evidence at the trial. Their case is that when the 2 prosecution witnesses arrived at outside the 1st Appellant's home, PW2 had an argument with the 1st Appellant. PW1 then attacked the 1st Appellant. Two of them then engaged in a fight. The 2nd Appellant went over to mediate, but was assaulted by PW2. To prevent further assault, the 2nd Appellant pressed PW2 on the ground until PW2 agreed not to struggle further. The 1st Appellant and PW1 also stopped fighting soon thereafter. It was only after the matter had been settled that the 3rd Appellant arrived.

5. It is accepted by both counsel for the prosecution and for the Appellants that PW1 and PW2 had previous records of conviction. However, at the trial, only the record of the 3 latest convictions of PW1 were revealed to the defence. The precise circumstances leading to this are in dispute. Counsel on fiat and counsel for defence had filed affirmations dealing with those matters. Mr Law and Mr Kwok who appeared at the appeal agreed that I need not dwell into the details nor resolve the conflicts and differences between the 2 trial counsel. I agree. Whatever is the cause, the fact remains that the defence did not know, and the prosecution had not made known to the defence, that PW1 had convictions other than the 3 disclosed. The undisclosed convictions related to offences of dishonesty and violence, although dated back to 1982 and 1984.

6. In the case of Paraskeva (1983) 76 Crim. App. R. 102, the appellant was convicted of the offence of assault occasioning actual bodily harm. The victim was the sole prosecution witness. He had one previous spent conviction for theft. The appellant was convicted and appealed on the ground that there was a duty on the prosecution to inform the defence of the conviction which they knew, thereby enabling defence counsel to put it to the witness. The Court of Appeal held that had the Court known of the victim's spent conviction, the trial judge must have given his consent to putting the character of the witness in issue. Accordingly, there was a material irregularity in the trial when the prosecution did not inform the defence of the previous conviction of the victim, and the conviction was quashed. At page 164, O'Connor L.J. approved the submission by the Appellant's counsel that there is a duty on the prosecution to inform the defence of the existence of a conviction of which they know.

7. The case of Paraskeva was followed and approved by the Court of Appeal in the case of R. v. Hung Fuk Lam Crim. App. No. 550/1987. The principle has also been applied in R. v. Wong Yuk Lam & Others [1991] 1 HKLR 345 and R. v. Chan Kwai Tim & Anor. MA 110/1996. Mr Law who appeared for the prosecution does not take issue with the principle stated in these authorities.

8. It is a fact that in this case, the defence had not been informed of the full conviction record of PW1. The undisclosed convictions may be relevant to the issue of credibility and also as to whether the Appellants were, as they said, acting in self defence. Counsel who appeared for the Appellants at the trial stated in his affirmation that he had considered whether to put the character of PW1 in issue. He had however on the basis of the convictions disclosed to him at the trial decided against it because the Appellants also had previous conviction records. He went on further in his affirmation to say that had he known of the full conviction record of PW1, he would have formed a different view and would have put the character of PW1 in issue. For the purpose of determining this appeal, I am prepared to accept what counsel had said in his affirmation. The undisclosed conviction is therefore relevant as to how the defence would have conducted its case. But one cannot put it higher than that because by putting the character of PW1 in issue, the Appellants stood the risk of throwing away the shield in that they also had previous criminal convictions. Be that as it may, it follows from the authorities referred to above and the affirmation of counsel for the Appellants at trial, that there is an irregularity in the trial.

9. The matter however does not rest there. There is a further issue of whether the irregularity is material or otherwise. This is not the same as asking whether there is miscarriage of justice or whether the magistrate would still have reached the same conclusion regarding PW1's evidence or the case as a whole. I agree that those are questions relevant only to the application of the proviso under section 83 Criminal Procedure Ordinance, Cap.221. In a magistracy appeal, the proviso has no application.

10. In this case, the prosecution's case rests not only on PW1's evidence, but also on the evidence of PW2. Mr Kwok did not argue that the irregularity per se would affect the evidence of PW2. What he argued is that, given that the character of PW1 is in issue, the magistrate would have to consider whether PW2's evidence can be accepted on its own, or whether it is to be rejected for suspicion of collaboration between PW1 and PW2. It is submitted, and I accept, that the evidence suggests that PW1 and PW2 are close acquaintance. Admittedly, they had discussed about the case after the assault when they agreed between themselves not to disclose to the police the identities of the assailants. That being the case, there is ground for putting to the magistrate that PW1 and PW2 might have discussed the evidence before giving the statement to the police and before testifying in Court. Therefore, the credibility or lack of it on the part of PW1 may possibly have an effect on the credibility and reliability of PW2's evidence. It follows that, had the character of PW1 been in issue, there is room for considering that the magistrate might have approached the issue of credibility and the evidence differently.

11. It is true that at some stage of the trial, the magistrate had been informed by counsel that PW1 had a previous criminal conviction record. That arose in the context of defence counsel seeking a short adjournment to enable him and the prosecution to establish the record. However, that information was presented to the magistrate only in the course of submissions. The information did not present itself as evidence at the trial. And the magistrate could not have taken that into account in assessing the credibility of PW1.

12. I need not and indeed cannot go further to speculate what effect, if at all, will the previous conviction of PW1 have on the magistrate's findings on the credibility of PW1 and PW2. This is because to do so would be tantamount to considering whether there is any miscarriage of justice, which is only relevant to the application of the proviso. I can only consider whether the Appellants stood to have a fair trial, namely, whether all the relevant and important considerations had been placed before the magistrate when she assessed the issue of credibility. Once I conclude, as I do, that there is matter relevant and important to a major issue in the trial and should have been drawn to the magistrate's attention, but owing to an irregularity, was not, then I am bound to conclude further that the irregularity is material to the case.

13. In the circumstances, I accept the submission that there had been a material irregularity in the trial and that the convictions of the Appellants are unsafe and unsatisfactory. The convictions ought therefore to be reversed.

14. Upon my enquiries, the prosecution indicated that they would seek a retrial of the case. Mr Kwok asked me to consider whether these offences are so serious as to warrant subject the Appellants to double jeopardy in having to face a second trial. These offences, of course, cannot be said to be very serious. The offences and the circumstances of the case are such that they cannot be described as minor or trivial either. There is no reason, in my view, for not ordering a trial de novo. Mr Kwok asked for the trial be before another magistrate, to which Mr Law did not object.

15. Accordingly, I allow the appeal against convictions, set aside the sentences. I also order that there will be a trial de novo before another magistrate.