NG SUI FONG, VIVIAN v. HKSAR

_________________________

D E T E R M I N A T I O N

_________________________

Mr Justice Chan PJ:

1.  Where the prosecution alleges that the harm was caused deliberately but it occurs to the magistrate that it may have been caused recklessly, the better practice is for the magistrate to raise the question of recklessness in the course of the prosecution’s case or, failing that, in the course of the defence case or, failing even that, at least before final speeches are concluded. And if the question of recklessness does not occur to the magistrate until after the conclusion of the hearing, re-opening the hearing is an option for the magistrate to consider. Where recklessness is not mentioned until the magistrate delivers his verdict convicting on the basis of recklessness, then whether the conviction constitutes a material irregularity depends on all the circumstances. If there is a real danger that the evidence would have been in a state more favourable to the defence, that would point to material irregularity. But if the suggestion is that more could have been urged by the defence in final speech, an appellate court is generally in a good position to assess that suggestion and decide whether the extra consideration so urged could, realistically viewed, have influenced the outcome of the trial. If no material irregularity is found upon intermediate appeal, the complaint can only be taken to a final appeal if there is a reasonably arguable case of such a departure from accepted norms as to constitute a substantial and grave injustice. Upon the foregoing propositions being put from the bench to leading counsel for the applicant, he accepted them. What then are the circumstances in the present case?

2.  The applicant was charged with assault occasioning actual bodily harm, contrary to s.39 of the Offences Against the Person Ordinance, Cap 212. The prosecution’s case was that she had intentionally and deliberately splashed steamed egg onto her domestic helper causing the latter some burns on the chest and nose. The magistrate found that the applicant had splashed the steamed egg intentionally with great force, knowing that the helper was standing nearby and that she must also have known that losing her temper in so handling the steamed egg would cause it to splash onto the helper. He convicted her on the basis that the only reasonable inference which could be drawn wasthat when the applicant scooped the steamed egg, she was reckless as to whether it would be splashed onto the helper.

3.  In seeking leave to appeal to the Court of Final Appeal on the substantial and grave injustice ground, it is contended that the magistrate had failed to give prior warning to the defence that he was considering convicting the applicant on the basis of recklessness and that this amounts to a material irregularity, and for the purpose of the present application for leave to appeal, a departure from accepted norms to the prejudice of the applicant. Thesame contention was raised on appeal but was rejected by the judge who held that even if the magistrate had given such warning, the evidence would not have been different.

4.  It is not argued before us that the magistrate had wrongly applied the law relating to the issue of recklessness and we do not think he had. On the facts, as counsel for the prosecution submits in their written submissions, the issue of recklessness would have involved various matters including the relative positions of the applicant and the helper, the manner of the splashing, the conduct of the applicant, the nature of the substance splashed and the positions of the injuries. These are matters which had been fully canvassed during the testimony of the witnesses. We are not satisfied that had this issue been raised at the trial, the defence could have been so effectively different as to influence the outcome of the trial. All the evidence was before the court and it was a matter of what inference could be drawn from such evidence. It cannot be said that there was insufficient evidence to support the finding of recklessness or that the magistrate had indulged in speculation. From the evidence before the court, the magistrate was entitled to draw the inference that the applicant was reckless in behaving as she did in that she was aware of the risk of causing injuries to the helper and had unreasonably taken that risk.

5.  We are not persuaded that it is reasonably arguable that the applicant had suffered substantial and grave injustice. The application for leave is refused.