HKSAR v. LEUNG KWOK HUNG

FAMC No 38 of 2014

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 38 OF 2014 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO 234 OF 2012)

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REASONS FOR DECISION

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Mr Justice Tang PJ:

1.  On 20 March 2012, the applicant was convicted on 4 charges by Mr Peter Law, a magistrate and sentenced to imprisonment for 2 months in respect of each of charges 1 and 4 and 5 weeks in respect of each of charges 2 and 3, all sentences to be served concurrently. The applicant was the sole defendant in respect of charges 1 and 4 which concerned criminal damage to a glass door and a wooden door respectively by the applicant when he tried to force his way into a public meeting already filled to capacity.

2.  Charges 2 and 3 are disorderly conduct charges.  In respect of the 2^nd charge,the applicant was charged together with D2 to D5 under s 17B(1) of the Public Order Ordinance.  In respect of the 3^rd charge he was charged together with D2 and D4 under s17B(2) of the same ordinance.  These other defendants were convicted by the magistrate as charged.

3.  All the defendants appealed against their convictions.  The appeal was heard by Pang J.  On 9 June 2014, Pang J allowed the appeals of the other defendants.  In respect of the applicant he was acquitted of the 2^nd charge but remained convicted under charges 1, 3 and 4.  The applicant’s appeal against sentence was partly successful.  Pang J substituted a sentence of 4 weeks in respect of each of the remaining charges, to run concurrently.

4.  On 10 June 2014, the applicant applied for leave to appeal to this court, against all the remaining convictions.  On 12 June, he appeared by counsel to ask for bail pending the disposal of the application for leave. I have had the benefit of written as well as oral submissions from Mr Martin Lee SC[1].

5.  The practice of the court is that, when, as here, there is no real risk of an applicant absconding, bail pending appeal or leave to appeal may be granted if by the time the appeal or application for leave to appeal is heard, a substantial part or the entire sentence would have been served unless the intended appeal or application has no realistic chance of success. The sentence of 4 weeks would have been served before an application for leave to appeal could be heard.

6.  The applicant’s written submission concentrated on his intended appeal against the 3^rd charge, which I will deal with first.

7.  In relation to this charge, it was submitted that points of law of great and general importance were involved in the appeal.  Moreover, a substantial and grave injustice had been done to the applicant.  Mr Lee relied on Hau Tung Ying v HKSAR (2011) 14 HKCFAR 453.

8.  Essentially, the complaint was that the judge had affirmed the applicant’s conviction on a different basis from the magistrate without giving the applicant any opportunity to deal with the new basis.  It was said that at trial the prosecution case against the defendants(including the applicant) was based on their acting in concert and it was on that basis that the magistrate convicted the applicant and the other defendants on charge 3.  However, on appeal, Pang J acquitted the other defendants on the basis that they were not acting in concert with the applicant but affirmed the applicant’s conviction on the basis of his conduct alone. Counsel submitted that the judge should at least have given the applicant notice of the new basis so that he could deal with it and there was much which the applicant could have deployed to defend himself.  This argument was rejected by Pang J on 10 June 2014 when he refused to certify a point of law for the purpose of the applicant’s intended application for leave to appeal.  However, it is unnecessary for me to decide whether on the facts of this case, this argument could run because even if Mr Lee was right about charge 3 that would not be determinative of this application.

9.  The applicant was also convicted on the criminal damage charges.  Little, if anything, was said about them in Mr Lee’s 15 pages written submission.  No doubt because little could be said about them.  However, in the formal application for leave to appeal, the point was made that the magistrate should not have accepted the evidence of PW5 on charge 1 or the evidence of PW7 on charge 4.  As Mr Lee knew leave to appeal are not normally granted on such grounds.  Bokhary PJ explained why, he said (with the agreement of the other members of the court) in Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70, 78 E-F:

“the appellate tribunal will recognize that it does not enjoy the advantage of having received the evidence at first-hand.”

The trial magistrate, who heard and saw the witnesses was best placed to decide questions of credibility.  An appeal from a magistrate lies to the Court of First Instance, where the appeal is by way of rehearing.  Chou Shih Bin (2005) 1 HKLRD 838.  Whatever be the ambit of such rehearing, this court does not function as a second Court of Appeal. We do not grant leave to appeal so that arguments on creditability of witnesses, rejected by the lower courts, could be repeated before us.  It is not reasonably arguable that leave to appeal could be granted in respect of these charges.  Mr Lee, quite rightly, had not emphasized these grounds of appeal in his written submission.

10.  I said earlier the applicant was sentenced to 4 weeks imprisonment in respect of each of the 3 charges.  So, success on the 3^rd charge would not suffice if the sentences on charges 1 and 4 remain.  The applicant argued that if the appeal against the 3^rd charge succeeds, then it would not be fair or just not to suspend the sentence in respect of charges 1 and 4 because the applicant has no previous convictions on the criminal damage offence. 

11.  I do not believe this is reasonably arguable.  The magistrate regarded the criminal damage offences to be the more serious offences because of the danger which the applicant’s conduct posed to the persons present.  On the facts found by him, he was entitled to take that view.  That’s why he imposed a heavier sentence of 2 months.  It is worth noting that, these charges are not concerned with the exercise of the right to peaceful demonstration, for which one could expect a high level of tolerance, these offences involved damage to property and were potentially dangerous to others for which little tolerance could be expected.

12.  The judge substituted a uniform sentence of 4 weeks in respect of each of the remaining offences, to be served concurrently.  The judge did say that the applicant had 2 previous convictions under the Public Order Ordinance and that was why he thought an immediate custodial sentence to be appropriate and went on to pass a custodial sentence in respect of each of the remaining charges.  I do not believe it is possible to infer from that that he would not have imposed an immediate custodial sentence had the criminal damage charges were the only charges left.  The fact that the applicant had 2 previous convictions was relevant to the sentence to be passed on the criminal damage charges.  Pang J was right to pass immediate custodial sentences in respect of these charges.  Nor are suspended sentences appropriate.  They are normally passed only when:

“there is a real prospect that the rehabilitation and reformation of the offender will be positively assisted by the making of an order of suspension or that there are special reasons why the court should be merciful.” per Murray J in R v GP (1997) 93 A Crim R 351, 381[2].

Mr Lee did not argue that a suspended sentence would assist the applicant’s reformation.  Nor are there special reasons for mercy.  The sentence of 4 weeks are not unjust or unfair.  It is inconceivable that this court would interfere with the sentence.

13.  For the above reasons I was of the view it was not reasonably arguable that leave to appeal could be given in respect of the sentences on the criminal damage charges.  Accordingly, I refused bail pending the application for leave to appeal, because even if the applicant should ultimately succeed on the 3^rd charge, he would still have to serve the sentence in respect of the 2 criminal damage offences.