HKSAR v. KO CHUN HUNG

HCMA481/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.481 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on 20th April 1998 of attempted theft in South Kowloon Magistracy and sentenced to 12 months' imprisonment. He now appeals against conviction.

2. Mr Allen Lam, who appears for him at the appeal, has advanced three grounds of appeal. The first ground of appeal is that the prosecution by amending the charge on the day of the trial by deleting the reference to Yuan Ming Nan after the Defence declined to admit that the properties alleged to have been attempted to be stolen belonged to Mr Yuan. Mr Lam submitted that this was an abuse of the Court process by the prosecution.

3. The Appellant was arrested on 30th November 1997 but was not charged with the offence until 31st December 1997. Mr Yuan was a tourist from the PRC. He was, after the incident, located by the police, and at 12:00 noon on 30th November he gave a statement to the police in Tsim Sha Tsui Police Station. In the statement he stated quite clearly that he would have to leave Hong Kong the following day. I am told that the reason for the delay in charging was because the police used the intervening month to try to locate a witness or other witnesses to the incident.

4. On 31st March 1998, the trial of the Appellant began before Ms Chainrai. It was on that day that the prosecution sought to amend the charge by deleting the reference to Mr Yuan and simply alleging that the attempt to steal was from an unknown person. This was apparently after the Defence had declined to admit that the properties allegedly attempted to be stolen in fact belonged to Mr Yuan.

5. Mr Lam says that the amendment of the charge at that stage was an abuse of the process. I do not agree. The prosecution has to make whatever amendments it considers necessary so that it would be in a position to discharge its burden of trying to prove the guilt of the Defendant. Quite clearly by 31st March, Mr Yuan had long since returned to the PRC and was no longer available. In the circumstances, the prosecution, unless the Defence were prepared to make admissions, had no choice but to allege that the properties belonged to an unknown person.

6. That was the first part of ground one which, in fact, is that the learned Magistrate erred in refusing the Defence's application to stay the proceedings. The second part of ground one is that the learned Magistrate failed to give any or any proper consideration to the significance of the absence of the potentially important witness Mr Yuan. As a result, it is said the learned Magistrate erred in ruling that there had not been any prejudice to the Appellant, in that the Appellant had not been deprived of a fair trial. Whether the absence of this witness would have, or could have, impacted on the verdict is a matter which in fact overlaps the complaints in ground two and ground three advanced by Counsel.

7. Ground two is that the learned Magistrate failed to give any or any proper consideration on the extent to which the Defence might have been handicapped or prejudiced by the absence of Mr Yuan. Ground three is that the learned Magistrate failed to give any or any proper consideration on the striking similarities contained in the witness statements of PW1 and PW2, and as a result of which the Magistrate erred in finding that there was no collusion between those two witnesses in the preparation of their witness statements.

8. I shall deal with all those matters together at a later stage of this judgment. Before I do that, I should deal with the case of R. v. Holgate (No.1) [1996] 3 HKC 315. Mr Lam relies upon this case for the proposition that where a stay application is made by the defence, if the Court refuses that stay on the ground that a missing witness did not prejudice the accused, then it is incumbent upon the trial court, having refused the stay, to reiterate or to explain in its Reasons for Verdict how the absence of the witness did not prejudice the defence.

9. Mr Lam draws support from what the Court of Appeal had said in that case at page 321 :

"..... And we find nothing there [the Reasons for Verdict] to indicate that after his refusal to stay, he [the trial judge] had directed his mind to how the questions of the unavailability of Pauline as a defence witness affected the issues he had to decide. ..... There should be some indication in his reasons which referred to the absence of Pauline and its possible effect on the case ....."

I do not agree with Counsel that the Court of Appeal in Holgate imposed any such duty on any trial court. Holgate, to my mind, is wholly different from the position we have in this case. Holgate was a government servant who had to explain that he was either not maintaining a standard of living above that commensurate with his official emoluments or if he had, he had the means legitimately obtained to do so. There was an evidential burden on Holgate to satisfy the court as regards those matters. His explanation consisted of the fact that some of the money had come to him from his wife, Pauline. Apparently the trial judge had found that there was no support on that aspect of Holgate's explanation. The Court of Appeal said in relation to that at page 322 :

"In other places, it seems that the judge tended to reject the applicant's explanation that the money come from his wife, at least in part, because there was no support for it in circumstances where the main supporting evidence, if available, would have come from his wife. ...."

10. In the instant appeal, the missing witness was a potential prosecution witness. The prejudice is said to arise because of something which the witness had said in his witness statement which, it is submitted by Counsel, would have contradicted the evidence of the two police witnesses, and therefore could well have made a difference to the verdict. That witness statement was produced and marked as a Defence exhibit and a translation was also produced before the learned Magistrate. The learned Magistrate had her attention drawn to the apparent contradiction between Mr Yuan's statement and the evidence of the two police officers. She dealt with it in her Statement of Findings when she said :

"..... I had before me the witness statement of Mr Yuan. I did not find that his absence so seriously prejudiced the Appellant such that he could not receive a fair trial. Mr Buchanan submitted that Mr Yuan's account of events was at such 'loggerheads' with that of the police witnesses that the Appellant was seriously prejudiced by his absence. I did not agree with Mr Buchanan. ....."

So, clearly the learned Magistrate had dealt with the possible impact on the Defence by the absence of the witness when she considered the stay application. Therefore, in my view, when she came to consider the verdict which was shortly after she dealt with the stay application and shortly after the final address by Defence Counsel, there was no duty upon her to repeat that difference between Mr Yuan's statement and the evidence of the two police officers.

11. The problem in this case is that apparently the learned Magistrate and the Defence Counsel were both working not from the original Chinese statement but from a certified translation. Counsel for the Appellant has submitted that the translation of the vital sentence does not carry with it the same implications that one would get reading the original Chinese.

12. The other complaint which is ground three of Mr Lam's grounds is that the two witness statements by the two prosecution witnesses were so similar that it lends support to the suggestion that they had been colluding in the preparation of those two statements.

13. Prosecution witnesses are not prohibited by law to collaborate to prepare the police statements provided that they all attempted to recollect to the best of their ability the events as they witnessed them. The prohibition is against police officers collaborating to prepare statements to concoct a story against a defendant. The problem here is the two police officers did not agree that they had discussed the event before they wrote up their own respective statements. The only concession they made was that they had discussed times and distances as they pertained to the event.

14. However, reading the original Chinese statements, I fear that there are some worryingly similar matters. I apprehend that the learned Magistrate and Defence Counsel would have been working from the certified translations of these statements. Working from the certified translations, it may well be that the impact of the similarities would not be as great as working from the originals. I am not criticizing the learned Magistrate, it may well be that she did work from the original Chinese statements, I do not know. Her view is that there were not such similarities as to enable her to find that the two police officers had colluded together. She said :

"..... I accepted the evidence of the police officers that they had not colluded together, and any similarities was coincidental. ....."

If the trial court came to the conclusion that the two police officers had worked together or collaborated to prepare their respective statements, that could well have an effect on the court's assessment of their credibility in view of their denials that they had discussed the event before preparing their statements. The effect of the apparent difference between what Mr Yuan said in his statement and the evidence of the police officers could well also lead to a different assessment of the credibility of the two police officers by the trial court. It is submitted that the two police officers' evidence that they observed the Appellant insert his right hand into the right rear trousers pocket of Mr Yuan could have been affected by the fact that apparently at the time the Appellant had some sort of jacket over his right arm. The point was also made that the two officers were apparently at a distance of some 10 feet behind the Appellant at the time and the query is whether they could have observed what they said they observed.

15. I have found that the amendment of the charge by the prosecution was not an abuse of the process, and I have found that the learned Magistrate was correct in refusing the stay application. What has caused me a lot of anxiety is the possible impact on the credibility of the two police officers if the original of Mr Yuan's statement is used as the basis of showing the difference between him and the two police officers and if the originals of the two police officers' statements are used to show the strikingly similar language employed and similar matters mentioned in the statements. It is for that reason, and that reason alone that I am allowing the appeal.

16. Miss Ho, for the Respondent, has applied for a retrial because of the seriousness of the charge. I order a retrial to be before a Chinese speaking Magistrate.

Date of hearing : 25 August 1998

Court : In view of the fact that the Appellant was in custody from 20.4.98 until 12.8.98 when he was released on bail after the appeal was allowed, which is a period of almost 4 months which is 1/2 of the original sentence of 8 months he would have had to serve if his conduct in prison was good (allowing 1/3 remission for good conduct of the 12 months sentence). I reverse my original order of ordering a retrial. There will be no retrial.