HKSAR v. JI, XIANG

HCMA 14/2024

[2025] HKCFI 4306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 14 OF 2024

(ON APPEAL FROM KCCC 2031 OF 2023)

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J U D G M E N T

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1.  The Applicant was convicted after trial before the Magistrate of one count of “indecent assault”, contrary to section 122(1) of the Crimes Ordinance, Cap. 200. The Applicant was sentenced to 6 weeks’ imprisonment. The Applicant appealed against conviction, which was dismissed, details of which can be referred to my judgment dated 9 October 2024.

2.  The Applicant now applies under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, for a certificate certifying the following two points of law of great and general importance.

(1)  Whether the principle laid down in R v Kwong Wing On and Another HCMA 574/1996, is equally applicable to the defence and/or his defence witness.

(2)  Whether the principle laid down in HKSAR v Tsui Sin Yee [2010] 1 HKLRD 876 is rightly decided and if so, whether it also applies to defence witness.

The Applicant’s Submissions

3.  Mr Tam in his written submissions gave the following details. On point 1, the Applicant submitted that Kwong Wing On is commonly cited by the court below in rebutting criticism of prosecution witness’ evidence, namely paragraph 12:

“Pausing at this juncture, I would say this: that microscopic dissection of a transcript will always uncover a discrepancy, a failure to answer a question, some inherent improbability or other, a piece of evidence not included in statements to the police, and a myriad of bits and pieces upon which to build pages of grounds of appeal. In the real world, and even with truthful witnesses, these discrepancies, improbabilities, and omission will occur. Indeed if they do not, then the evidence is attacked as being artificial or collusive. A magistrate is not expected to deal expressly with every comforting crumb to which the defence may be able to point. A realistic attitude must be encouraged, and the approach to such attacks is to ask whether there have been material and significant discrepancies, improbabilities or omissions, such as would lead or should lead a tribunal to doubt credibility on central facts.”

4.  Subsequently in HKSAR v Chan Hung Hoi HCMA 869/2007, further elaborated at paragraph 26, that paragraph generally says that in real circumstances even if a witness tried his best to tell the facts as he remembered them, there will inevitably be some omissions and inconsistency in the case. If not, it will in turn be criticised as contrived in the negative. When considering the evidence, the magistrate should consider it as a whole to decide whether there are substantial and serious deviation, omissions, or impossibility in the case. If not, the Court of Appeal will not require the magistrate to deal with the various details pointed out by the defence, point by point.

5.  However, the Applicant submitted that the above principle were laid down without reference to other cases or other common law jurisdictions. Article 10 of the Hong Kong Bill of Rights provided:

“All persons shall be equal before the courts and the tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent, and impartial tribunal established by law.”

And Article 11(2)(e) of the Hong Kong Bill of Rights also provides in the determination of any criminal charge against him:

“… everyone shall be entitled to the following minimum guarantees in full equality … (e) to examine, or have examined, the witnesses against him and to obtain attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.”

The Applicant therefore submitted that the principle laid down in Kwong Wing On shall be equally applicable to the defence or defence witnesses.

6.  Further, there is no substantial difference between the examination of prosecution witness and the defence witness. The only difference is that the prosecution witness’s evidence have the opportunity to be elaborated by the police officers, the officers-in-charge, the advising counsel, or the fiat prosecution counsel. Whereas, the defendant or defence witness’s version is only elaborated by his legal representative, solicitors, duty lawyer, or the trial counsel conducting the trial.

7.  On point 2, whether the principle laid down in HKSAR v Tsui Sin Yee [2010] 1 HKLRD 876 is rightly decided, if so, whether it also applies to defence witnesses. The Applicant cited the judgment in Tsui Sin Yee by McMahon J, having analysed Browne v Dunn [1893] 6 R 67, find that the principle does not require a mention of details for prosecution case to be put to a defendant in the witness box, even in the circumstances where a defendant must be aware of what that case is. In paragraph 44 in that judgment:

“The purpose of the rule established by Browne v Dunn is to prevent a party; and the rule as a matter of practicality is directed usually at the party whose evidence is given last, from embarking upon a presentation of their case in evidence which is novel and upon which, if it had been put to them, the other parties’ witnesses would have been able to provide relevant evidence. It is not a rule which requires aspects of a party’s case to be put to the other party where the other party must have in any event been perfectly aware from the conduct of the proceedings that those assertions were part of the case against him.”

And paragraph 45:

“In the present case it is difficult to see how the defence were in any way unaware that it was the prosecution’s case that the appellant possessed the items the subject of the 3^rd charge for sale or trade. That was set out succinctly in the charge and the appellant (and her representatives) must have been well aware of that because she gave detailed evidence as to how she came to suspect the items, the subject of charge 3 were counterfeit, and how she then decided not to use them in the course of her business.”

8.  However, the Applicant said the Court of Appeal in HKSAR v Chan Hing Kai [2020] 1 HKLRD 1082 reiterated that the rule in Browne v Dunn is a rule of professional practice and of fairness designed to allow witnesses to confront and respond to any proposed challenges to their evidence. It is only in exceptional cases should adverse inference as to credibility may be drawn against a witness in consequence of the breach.

9.  Therefore, the Applicant submitted in practice, only a defendant is provided with the opportunity to peruse all the prosecution witnesses, as well as to seek full trial hearing to hear the evidence. It might therefore be “perfectly aware from the conduct of the proceedings that those assertion were part of the case against him” for Tsui Sin Yee to apply.

10.  However, nothing bars the prosecution from putting his case to the defendant and then show him the fair opportunity to give an explanation to matters which the prosecution does not accept or agree with, especially when those matters might be considered by a trial judge in assessing the credibility of the defendant.

11.  On the other hand, defence factual witness is only called to give evidence as to his version of the case, who is usually not provided with the prosecution material since obviously forbidden from hearing the evidence in court directly or indirectly before giving evidence. In that case, the Applicant submitted that whatever allegation made against him during prosecution’s case will not come to the attention of defence factual witnesses.

12.  Further, Chan Hing Kai had not considered Tsui Sin Yee. On the assumption that Tsui Sin Yee shall remain as good law after Chan Hing Kai, it is difficult for the public or the legal practitioners to know whether Tsui Sin Yee is still good law and how to apply the same in light of the summary of the principle laid down in Chan Hing Kai. Therefore, it heeds to the operation by the Court of Final Appeal.

13.  So, the Applicant submitted that these two points are of great and general importance and also are reasonable arguments that to be certified by this court.

The Respondent’s Reply

14.  The Respondent stated that it has long been established not the function of the Court of Final Appeal to engage in academic exercise, on point 1, whether right or wrong, will not affect the outcome of the application’s case (Seng Yuet Fong v HKSAR, FAMC 26/1998). And also it was also held in So Yiu Fong v HKSAR [1992] 2 HKCFAR 539, that the primary role of the Court of Final Appeal in the administration of criminal justice is to resolve real controversies on point of law of great and general importance rather than to act as a court of criminal appeal in the ordinary.

15.  The Respondent simply opposed the present application because the questions raised are purely academic and not affecting his conviction, and also in the absence of any real controversy require certification, clarification from the Court of Final Appeal.

16.  The Respondent says that Kwong Wing On pointed out that in the real world and even with truthful witnesses, these discrepancy, improbability, and omissions will occur. However, the trial Magistrate in this case did not refuse to accept the Applicant’s evidence because of minor discrepancy, improbability, or omissions. Instead, the Magistrate took the view that the Applicant did not tell the court the truth because the explanation he provided for his action was simply unreasonable.

17.  Similarly, the Magistrate did not consider the evidence of DW1 unhelpful to the defence case because DW1 was dishonest or incredible. Rather, the Magistrate noted that DW1 only looked back two or three times, each for just a few seconds. It was therefore not surprising that DW1 did not see everything that happened in the back of the vehicle, which the appellate judge also agreed.

18.  Regardless of whether the principle established in Kwong Wing On also applied to defence in the same way, it will not affect the outcome. Even though the Applicant argued there is no authority which examine or discusses the applicability of the principle in Kwong Wing On to defence, the court has not actually been invited in the present case or in another case, known to the Respondent to apply the principle to the defence, nor has it declined to do so. Thus, there is no real controversy in the point 1 that required clarification from the Court of Final Appeal.

19.  On point 2, the Respondent will say that in Chan Hing Kai, concerned how to deal with situation where a party failed to put its case to the witness of the opposing party during cross-examination, and it was held that while it is open for a judge to direct the jury that they can take into account the lack of footage in assessing the weight to be attached to a witness evidence on that matter, it may not be generally appropriate for the judge to make a comment to the effect that an adverse inference as to credibility may be drawn against that witness.

20.  But in Tsui Sin Yee, the court examined the rule in Browne v Dunn and concluded that it is not the rule requiring a party to put aspects of its case to the other party when the latter must have been perfectly aware from the conduct of the proceedings. Therefore, the Respondent will say that Chan Hing Kai and Tsui Sin Yee pertain to different issues and there is nothing to suggest that they are incompatible with one another.

21.  Secondly, the Respondent also says that although DW1 did not have an opportunity to peruse all the prosecution materials and to sit through the trial hearing, the Applicant’s counsel should have been fully aware from the conduct of the proceedings, it was the prosecution’s case that PW1 saw DW1 smoking when she arrived at the boarding area. DW1 had stated in his testimony that he does not smoke, and it was foreseeable that DW1 would simply deny it. Yet the prosecution suggest to him that he smoked before getting into the vehicle. But that was not crucial or central in the case anyway.

22.  So even if Tsui Sin Yee is no longer considered good law because of Chan Hing Kai or does not apply to defence witness, it will not affect the Applicant’s conviction anyway.

23.  Lastly, it was never argued by the Applicant in the appeal that Tsui Sin Yee does not apply to defence witnesses and the Respondent also referred to 香港特別行政區 訴 蔡富強 HCMA 761/2011, that the rule allowing the court to convict based on certain witnesses and inconsistency in the defence evidence despite these not having been put to him is also applicable to defence witnesses. So there is no real controversy in this point that require clarification from the Court of Final Appeal.

Consideration

24.  Section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides:

“(2) Leave to appeal shall not be granted unless it is certified by the Court of Appeal or the Court of First Instance, as the case may be, that a point of law of great and general importance is involved in the decision or it is shown that a substantial and grave injustice has been done.”

Further, the point of law raised shall be reasonably arguable (see HKSAR v Fong Kwok Shan Christine FAMC 29/2016).

25.  Firstly, on point 1, whether Kwong Wing On shall also applicable to the defence or defence witness. In the present case, the point raised is clearly academic, and that was not in dispute to be dealt with. For the defence witness, the Magistrate simply stated his evidence was not helpful because he did not see everything happen because of the limited times to look back. It was not the case where his evidence was incredible or unbelievable because of discrepancy, or improbable, thus Kwong Wing On did not even come into play.

26.  While for the Applicant, the Magistrate also fully analysed his evidence and concluded that he was not telling the truth, not because of a minor discrepancy or omission. Therefore, it was not a real controversy involved, and the point raised, assessed, was purely academic.

27.  On point 2, whether Tsui Sin Yee was rightly decided and whether it also applies to defence witness. Firstly, despite the Court of Appeal case in Chan Hing Kai, Tsui Sin Yee was decided on specific facts and circumstances upon which the defence would not be unaware of the prosecution case. However, in the present case there was simply no real controversy arising from these aspects.

28.  Even if defence witness were not asked about his smoking habit, that was clearly not crucial or central to the present case. Therefore, this point raised by the Applicant was not of great and general importance.

29.  As both points raised by the Applicant are not of great and general importance, the application shall be dismissed accordingly.

Ms Ho May-yu Lily, SADPP, and Ms Chan Yuk-lui Ivy, PP of the Department of Justice, for the Respondent

Mr Tam Wai-shun Wilson, instructed by YTL LLP, for the Applicant