YAU CHIU MING v. HKSAR

FAMC No. 20 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2003 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 72 OF 2003)

_____________________

_____________________

_____________________

DETERMINATION

_____________________

Mr Justice Bokhary PJ:

1. The applicant was convicted in the Magistrate's Court of an offence under s.20(c) of the Summary Offences Ordinance, Cap. 228, which makes it an offence persistently to make telephone calls without reasonable cause and for the purpose of causing annoyance, inconvenience or needless anxiety to any other person. He was bound over in the sum of $1,000 for 12 months. His appeal against conviction was dismissed by Deputy Judge Wright. The nature of the case may be gathered from this paragraph of the appeal judge's judgment (in which the applicant is referred to as "the Appellant" and the recipient of the calls is referred to as "PW1"):

"At the end of the day, and this was realistically accepted during argument, what the Magistrate was faced with was that the Appellant was the subscriber to a mobile telephone, as well as the occupant of premises where there was another telephone, from both of which had been made, to PW1's telephone number, an extraordinary number of calls during a short period, during each of which such calls nothing was said. In addition, there were the admissions by the Appellant in his statement of actually having made an unspecified number of calls during that same period, from those same telephones, to PW1's telephone number."

2. Although he made that admission, the applicant's statements to the police were mixed in that they were in fact exculpatory. This can be seen from this paragraph of the appeal judge's judgment dealing with what the applicant said in those statements:

"The essence of the explanation for the making of calls given by the Appellant was that he had been responding to numerous messages left on his pager during the period mid-May to mid-June, during which various messages and names, including that of PW1, were left, as well as to numerous anonymous calls made to his residence. He theorized that PWl had mounted a campaign against him as a result of erroneously regarding him as a competitor for the affections of a female. It was an agreed fact that the records relating to messages left on the Appellant's pager were no longer in existence."

3. The applicant did not testify or call any witness.

4. It was in those circumstances that the trial magistrate did the two things on the basis of which the applicant seeks leave to appeal to the Court of Final Appeal on the "substantial and grave injustice" ground. It is urged on the applicant's behalf that it is reasonably arguable that each of these two things is a departure from accepted norms amounting to substantial and grave injustice. One is the trial magistrate's dismissal as speculative of the defence theory that someone else may have made the calls. The other is the trial magistrate's observation that the applicant "could easily have said who else was or might be using his telephone to call PW1 if that was really the case" and that this was "the sort of case in which a not incredible explanation given by the accused in the witness-box might have created a doubt".

5. Dismissing a defence theory as speculative is not an uncommon course. It does not imply that the defence theory had not been considered before being dismissed.

6. Adverse observations on omissions from accused persons' out-of-court statements or on their failure to enter the witness-box often give rise to controversy. And this is so not only when such observations are made by judges to juries but even, although less so, when they are made by judges or magistrates sitting alone. Judges and magistrates should pause long before making such observations. The focus should always be on what is in evidence rather than on what is not in evidence. In the present case, the trial magistrate's observation on what the applicant did not say has generated much debate. We make no criticism of that, but we see no warrant for letting the debate proceed all the way to the Court of Final Appeal. We can safely say here and now that, taken in context, what the trial magistrate said did not stray beyond the limits set by the Court of Final Appeal in Li Defan v. HKSAR (2002) 5 HKCFAR 320. It is clear beyond reasonable argument to the contrary that no departure from accepted norms was involved.

7. Despite the skill with which Mr Lawrence Lok SC for the applicant has argued this application for leave to appeal, leave is refused.