THE QUEEN v. WONG YUK LAM AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 469 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 3rd March 1990 the appellants were convicted of assault occasioning actual bodily harm and common assault and each were fined $500 and $250 respectively.

2. Although four grounds of appeal are set out in their perfected grounds appeal against convinction, Mr Souyave for the appellants relies only on the first ground that there was a material irregularity in the course of the trial in that:

3. No criticism is made of the magistrate in his handling of the case, but the appellants rely upon the ground that they were not informed of the previous convictions of PW1 and PW3.

4. Affirmations have been filed by both counsel who appeared at the trial, namely Mr Ronald TANG, who appeared for all the appellants and Mr William NG, who appeared for the Crown on a fiat. It is a matter of some concern to me that the versions given by both counsel are completely contradictory. However, the one common aspect of both affirmations, as pointed out by Mr Souyave is that the defence was not presented with the criminal records of either PW1 or PW3. Those records have now been shown to me with the agreement of counsel for the Crown and there can be no question but that they are very relevant to any assessment of the credibility of these two witnesses. PW1 has convictions for triad related offences and also theft whereas PW3 has previous convictions for affray and fighting in a public place.

5. Mr Souyave relies upon the judgment of Cons. v.-P in Criminal Appeal No. 550 of 1987 HUNG Fuk-lam to support his contention that there has been a material irregularity. The learned judge said at p.3 of the judgment:-

"Mr Cross, who now appears for the Crown, admits for the purposes of this appeal that CHAN Sau-chow has a criminal record .. eight counts of false information to a pawnbroker in 1973 and two counts of robbery, for which the total sentence was 3+ years in 1979. Unfortunately, through no fault of prosecuting counsel at the time, that record was not apparent to him at the trial, and counsel did not inform the defending solicitor of the record as he would otherwise have done.

 

It is established that nowadays such a failure is a material irregularity in a trial. If authority is wanted for that it can be found, for example, in the case of Paraskeva (1983) 76 Criminal Appeal Reports 162. This Court must therefore quash the conviction unless it is satisfied that no miscarriage of justice has in fact occurred. In other words, we must do so unless we are satisfied that the judge would have come to the same conclusion even had he known of CHAN Sau-chow's previous convictions."

 

6. Mr Saw for the respondent does not oppose the appeal. He concedes that it may well have been that the magistrate would have taken a different view of the prosecution witnesses if he had known of their previous convictions.

7. In my view Mr Tang should have sought an adjournment immediately before the magistrate announced his judgment, when he became aware of the fact that there were previous convictions, even though he did not know the details of them. However, be that as it may, the court was deprived of relevant material to the issue of credibility.

8. For these reasons and because of the present attitude of the Crown, the appeal was allowed and the convictions set aside. The Crown did not seek an order for a retrial and no such order was made.