HKSAR v. JIARAVANON JIACIPLO

HCMA713/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 713 OF 2007

(ON APPEAL FROM TWS 11470 OF 2006)

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BETWEEN

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J U D G M E N T

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1.  This is an application for me to certify that a point of law of great and general importance exists in this case.  This case involved an appeal from a decision of a magistrate.

2.  The case is before me today pursuant to a notice of motion.  It is common ground that the notice of motion really gets off on the wrong foot because it looks to departure from norms and substantial injustices, but we have not let that stand in our way because what Mr Wong asks me to do today is to certify a point.  The point he wrote down for me in the course of this hearing and I will read it out: 

“In a case turned wholly on credibility of witnesses, the judge hearing the appeal should consider whether the trial magistrate did make a proper assessment of witnesses.  If the judge considered the trial magistrate failed to do so, resulting that the conviction was unsafe and unsatisfactory, the judge should quash the conviction.” 

After hearing argument, we added these words - “and not form his own view based on the transcript”. 

3.  Basically, the complaint is that it is possible to criticise the magistrate’s views on credibility here and the way he expressed them and that that should have led to the quashing of the conviction and that I should not have looked at the transcript and formed my own view about the merits of the case, which included a view on the credibility of the parties involved.

4.  It seems to me that the case of Chou Shih Bin v HKSAR, FACC 11/2004, tells me that that is exactly what the role of a judge hearing an appeal from the Magistrates Court is.  One has to look at the available material and form one’s own view of the matters at large.  The law is settled and is being applied, as far as I know, without problem. 

5.  In fact, it has been a blessing to those involved in these matters that there has been an authoritative statement of what the law is.  It is still the case that people come along, quoting judges of first instance, deputy judges and the like dealing with these cases, from times well before the decision in Chou Shih Bin where, it seems to me, the role of a single judge, hearing an appeal from a decision from a summary court is confused with the role of judges in the Court of Appeal hearing appeals concerning convictions on indictment.  What the judge has to do on hearing an appeal from the Magistrates Court is simply set out in Chou Shih Bin. 

6.  That is what I have endeavoured to do in this case and I can see that no point of law of great or general public importance arises from my approach to the matter.

7.  In the course of argument, it was said that there is a second point that I could certify, which is to the effect - I think I have this right - that section 83 of the Criminal Procedure Ordinance, which deals with appeals to the Court of Appeal and contains a proviso that the appeal can be dismissed if there is no miscarriage of justice, was, in effect, applied in this case when that law had no application to the appeal.  My view of that is this, that section 83 had absolutely nothing to do with these proceedings at any stage.  I never invoked it.  I never looked at it.  I never applied a proviso.  I just did what Chou Shih Bin tells me to do.

8.  Accordingly, there is nothing I can certify in relation to the operation of section 83 in relation to the facts here.  Those are some brief extempore reasons dealing with the application. 

9.  The application is dismissed.

Representations: