HKSAR v. WONG WING KEUNG

1997, NO. MA 281

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL

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J U D G M E N T

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1. The appellant was convicted after trial of the offence of indecent assault. He now appeals against conviction. The main ground of appeal is that he was not given the opportunity to have proper legal representation at the trial.

2. The case against the appellant depends on the evidence of PW1. On 12^th June 1996 PW1 was on board a MTR train with a friend. She found someone put his hand under her skirt. She reacted swiftly and caught the hand before it could be withdrawn. She found it was the hand of the appellant. The appellant denied the allegation. He said there were many people around and PW1 grabbed his hand by mistake. Her friend who also gave evidence did not see what happened until PW1 reacted to the assault.

3. The magistrate convicted him and sentenced him to two months immediate custodial sentence.

4. The case was first brought before a magistrate on 23^rd July 1996 and when the appellant pleaded not guilty to the charge, trial date was fixed on 13^th September 1996. On 13^th September 1996 a new hearing date on 10^th October 1996 was fixed. On 10^th October 1996, when the appellant appeared before the magistrate, the appellant was represented by the duty lawyer. The prosecution applied for an adjournment because the witnesses even though they had been summoned, failed to appear. Hearing was adjourned to 22^nd January 1997.

5. On 22^nd January 1997 hearing commenced before another magistrate and the appellant was represented by the duty lawyer. The duty lawyer asked for statements of prosecution witnesses which were not made available by the prosecution. Prosecution indicated that no such request had ever been made. The magistrate ordered that enquiry should be made of it. Subsequently the duty lawyer informed the magistrate that as early as 29^th July 1996 request for such statements had been made by both the appellant's private lawyer and the duty lawyer but still no prosecution witness statements were available until that morning. The duty lawyer also informed the magistrate that the appellant felt the statements might prejudice him and wished to discharge the duty lawyer and engage a private lawyer. The prosecutor informed the magistrate that he did not know if the statements had been provided to the appellant and he had no strong objection to the appellant's application.

6. The magistrate, after he was informed by the prosecutor that it was not known when the witnesses would next be available, refused the application. The magistrate indicated that the appellant had had ample time to engage a private lawyer. The appellant however, told the magistrate that he had tried to get a private lawyer but because he was not given any witness statement, he was not able to do so. The duty lawyer then asked to be discharged but the magistrate invited the duty lawyer to represent the appellant. The appellant then indicated he would defend the case himself.

7. The two prosecution witnesses were then called. They gave evidence and were cross-examined by the appellant. The case was then adjourned to 5^th February 1997 for continuation.

8. On 29^th January 1997 before the resumed hearing date, the appellant represented by solicitor Mr Hui applied to the magistrate for the transcript of evidence since he was engaged after the trial had gone on for some length. Mr Hui also gave notice that he might need to apply for the two prosecution witnesses to be recalled for further cross-examination. The application was granted by the magistrate.

9. On 5^th February 1997, when hearing resumed, Mr Hui applied to have a new trial and indicated that if application was refused, he would apply to recall the principal witnesses. The prosecutor objected indicating that the availability of the witnesses was doubtful. The magistrate refused both applications indicating :

"... Defendant was an intelligent person when he put his question on the last occasion and he had the option of engaging a Duty Lawyer to represent him. Also the two lay witnesses had already given very detail description over the incident. All these factors point to the fact that no injustice to Defendant. ..."

The trial then continued.

10. Mr Leung for the appellant submits that the magistrate improperly refused the application on 22^nd January 1997 to adjourn the hearing to enable the appellant to engage a private lawyer. He submits that the magistrate was concerned with the availability of the witnesses but the case had been twice adjourned prior to that date because of non appearance of witnesses even though they were summoned. Concern on availability of witnesses should not be at the expense of the appellant's right to proper legal representation.

11. Mr Leung also submits that it is not in dispute that the witness statements which are crucial to a case of this kind were only available to the duty lawyer on that morning of 22^nd January 1997 and there was a genuine reason for the appellant not to wish the duty lawyer to represent him there and then. It is submitted that in addition, there are discrepancies between PW1's evidence in court and her previous statement and the magistrate should have allowed the witnesses to be recalled so that any inconsistencies could be ventilated by the appellant's legal representative at the resumed hearing. The fact that the appellant might be intelligent does not mean that he should not be allowed to have the service of a lawyer.

12. Mr Wong for the government accepts that this is a serious case and the appellant is facing immediate custodial sentence of no short period. He submits that taking into consideration all the circumstances, the appellant ought to be given an opportunity to have the case heard when he has proper legal representation. Mr Wong indicates if the conviction is quashed, he seeks a retrial.

13. Mr Leung agrees that the proper course to take is to have the case retried by another magistrate.

14. The circumstances show that no proper legal representation was available to the appellant at the trial. The appellant's right to proper legal representation has been prejudiced. Justice is not seen to be done if the appellant stands convicted of the offence as a result of a trial when he was not given the opportunity to have the case properly ventilated by his legal representative. The conviction cannot stand. The appeal is allowed. The conviction is quashed and the sentence of two months set aside.

15. The case is remitted to the magistracy for a retrial before another magistrate.

16. The appellant is on bail. His bail is extended on the same terms until the trial date.