LUITEL SHOM PRASAD v. HKSAR

FAMC No. 10 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 10 OF 2002 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM
HCMA NO. 766 OF 2001)

_______________________

______________________

__________________________________

REASONS FOR DETERMINATION

__________________________________

Mr Justice Ribeiro PJ:

1. After hearing submissions made by Mr Raymond Pierce, appearing with Ms Kennis Tai for the applicant, we dismissed this application for leave to appeal to the Court of Final Appeal. We stated that reasons would follow and we now give those reasons.

2. The applicant was convicted of indecent assault before the Magistrate, Ms Merinda Chow, sitting at San Po Kong Magistracy. His appeal was dismissed by Beeson J, her Ladyship also refusing leave to appeal to the Court of Final Appeal.

3. The evidence founding the conviction came from the victim of the assault and two police officers. The victim testified that while travelling on an MTR train (that was not particularly crowded), the applicant had stood close to her and had pressed himself against her buttock, causing her to react angrily.

4. The police officers were on board the same train. They testified that they had first noticed the applicant at the Tsim Sha Tsui MTR station between 7.25 pm and 7.35 pm on the evening in question, walking up and down the platform, but not boarding the trains as they arrived, though there was nothing preventing him from boarding. When he did eventually board, the officers followed and testified that they saw the applicant approach the victim and press himself against her buttock, provoking an angry reaction.

5. The applicant stated in chief that he was new to Hong Kong and a novice user of the MTR system. He also said that he had felt unwell and suffered a black-out during which he had no recollection of events. He denied indecently assaulting the victim but could not be certain whether he had accidentally come into contact with her during the time he was unconscious.

6. In the course of cross-examination, the prosecutor questioned the applicant about when he entered the MTR system. He answered that this had been at about 7.30 pm. The prosecutor, apparently with a view to challenging his credibility, then attempted to make reference to a report that the MTRC had prepared after analysing the electronic entries on the applicant's Octopus Card used to gain access to the system. Counsel for the applicant objected on the ground that the report had not previously been disclosed to the defence. He applied to the magistrate for the prosecution to be stayed permanently, on the ground that there had been a material non-disclosure which had deprived the applicant of a fair trial.

7. The magistrate refused the application for a stay. She proceeded on the basis that further questioning on the report (which was not seen by her) would not be allowed. She also gave permission to the applicant's counsel to take instructions from the applicant on the report. No further mention was thereafter made of the document at the trial.

8. After reviewing the evidence, the magistrate convicted the applicant, accepting the evidence of the prosecution witnesses and finding that the applicant had deliberately committed an indecent assault on the victim.

9. On appeal before Beeson J, the applicant contended that failure to disclose the Octopus Card report constituted a material irregularity and that the magistrate had erred in refusing to grant a permanent stay of the proceedings in consequence. In support, an affidavit of Mr Bruce SC, who had appeared for the applicant at the trial, was tendered. He explained the significance of the report as follows :-

"The effect of the document was that the Appellant had been in the MTR system for considerably longer than even the police had deposed to. If accepted as accurate, it showed that the Appellant had entered not at Tsim Sha Tsui as he had testified but at Jordan. Taken at its highest and if used to the fullest extent by a prosecutor it was inconsistent with the testimony of the Appellant that he was not knowledgeable of the geography of Hong Kong (it being harder to find Jordan station and more unusual to enter at that station). It left a raft of unanswered questions as to why the Appellant was in the MTR system for as long as he was. However those questions were answered, and I accept there were many possible inferences adverse to the Appellant available, they were inconsistent with the testimony of the Appellant as to his entry into the MTR system and the time of that entry."

10. Beeson J accepted that non-disclosure constituted a material irregularity, citing various decisions of the English Court of Appeal, including R v Phillipson (1990) 91 Cr App R 226 where, at p 235, Ralph Gibson LJ explained the applicable principles in these terms :-

"The basic principle that the prosecution must include all probative material on which it intends to rely, and must tender it as part of the prosecution case, does not form part of our law because the law wishes to help liars to tell more convincing lies, but because an accused needs to know in advance the case which will be made against him if he is to have a proper opportunity of giving his answer to that case to the best of his ability. The accused is also entitled, when he decides whether or not to go into the box to give evidence, to know what the case is he has to meet. The intelligence and powers of memory and of literacy of accused people vary greatly. Some people may exaggerate and embroider and lie even when their basic case is true.

It is better in the interests of justice that an accused is not induced, by thinking that he is safe if he does so, to exaggerate, or to embroider, or to lie ...... so to do might be to ambush the accused. ...... Further, we would add, where the evidence is of great force, the proper disclosing of it may cause the accused to plead guilty to the advantage both of the administration of justice and of the accused."

11. In particular, her Ladyship accepted that :-

"...... it is possible that if the Report had been disclosed the Appellant may not have elected to give evidence, or may not have given it in the manner that he did."

12. Nevertheless, Beeson J appears clearly to have concluded that the irregularity, though possibly material to the manner in which the defence might have been conducted, did not cause any unfairness and did not affect the result. Her Ladyship noted that "the Magistrate had handled the matter fairly"; that "the trial proceeded without any reference to the content of the Report"; that "there was ample evidence on which [the Magistrate] could find [the applicant] guilty" of the offence and that the Magistrate had properly considered all the evidence and arrived at the correct decision.

13. If the judgment had been confined to those conclusions, it would have been unassailable. Section 119(1)(d) of the Magistrates Ordinance, Cap 227 empowers a judge hearing an appeal from a magistrate, among other things, to "confirm, reverse or vary the magistrate's decision", making the necessary order, including "such ...... order as he thinks just". As the Court of Final Appeal held in Ching Kwok Yin v HKSAR (2000) 3 HKCFAR 387, 390: "It follows that [the judge] has to decide whether there has been in the Magistrates' Court an error which makes it just that the appeal should be allowed and the conviction set aside." The thrust of the judgment in the present case was that the error did not in justice require the appeal to be allowed.

14. However, after finding that there had been a material irregularity (and in addition to expressing her view as to the absence of unfairness), Beeson J turned her attention to the complaint that a stay had wrongly been refused by the magistrate and, citing Attorney-General's Reference (No 1 of 1990) [1992] 1 QB 630, stated as follows:-

"A stay of proceedings for delay or any other reason can be imposed only in exceptional circumstances; even where delay was unjustifiable, the imposition of a permanent stay was to be the exception rather than the rule. Further, no stay was to be imposed unless a defendant established on the balance of probabilities that, owing to the delay or other reason, such as a material irregularity, he would suffer serious prejudice to the extent that no fair trial could be held and that the continuation of the prosecution amounted to a misuse of the process of the court.......

No cogent explanation has been given as to why or how, on the balance of probabilities, this material irregularity militated against the Appellant's having had a fair trial." (Italics supplied)

15. The applicant complains that in adopting this approach, Beeson J wrongly placed a legal burden upon him which he ought not to bear. It is contended that this gives rise to a point of great general or public importance formulated as follows :-

"Upon a material irregularity having been found on appeal by a High Court Judge to have occurred in the course of a trial before a Magistrate, is the Appellant required to additionally prove, on the balance of probabilities, that the conviction is unjust?"

16. In our view, the Judge plainly erred in referring in the present circumstances to a test for whether a prosecution should be stayed. The Magistrate had allowed the prosecution to continue notwithstanding Mr Bruce's objection and application for a permanent stay. The appeal was therefore concerned with whether the adoption of this course by the Magistrate had resulted in a material irregularity requiring the conviction to be set aside. The Judge held, in our view correctly, that there had been a material irregularity but that it did not affect the fairness of the result. In reaching that view, the fact that a stay had been applied for and refused was necessarily already taken into account. The Judge was not called upon to re-exercise a discretion as to whether the trial should be permanently stayed nor to ask whether the applicant had satisfied any burden in relation to such question.

17. Does the fact that the Judge erred in this way provide the basis for granting leave to appeal? In our view, it does not. Mr Pierce submitted that the conclusion arrived at by Beeson J in disposing of the appeal below had been dictated by her Ladyship's adoption of the abovementioned erroneous approach. That is not how we read the judgment. In our view, the error involved an irrelevant embellishment which did not invalidate the underlying reasoning which was correct and consistent with Ching Kwok Yin v HKSAR.

18. The principles relating to applications for the permanent stay of a prosecution have recently been considered by the Court of Final Appeal in HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133 and the misconceived reference to a stay application in the present case does not raise any point of great general or public importance.