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Fair trial denied: Carter Chim succeeds in overturning conviction in the Court of Final Appeal

In HKSAR v Lo Kin Sun (盧建新) [2021] HKCFA 1, the Court of Final Appeal held that the Magistrate denied the unrepresented Appellant a fair trial by failing to address material inconsistencies in the prosecution witnesses’ evidence and assist the Appellant in putting those inconsistencies to the prosecution witnesses. The Magistrate’s conduct of questioning the Appellant during cross-examination of the prosecution witnesses also put in doubt the appearance of a fair trial. Accordingly, the appeal was allowed and the Appellant’s conviction quashed.

Background

The Appellant was a chef who operated a restaurant.  He was charged with assaulting an inspector of the Environmental Protection Department (“EPD”), contrary to section 40 of the Offences Against the Person Ordinance (Cap.212) (“the Offence”).

The Appellant was unrepresented at trial. Magistrate Debbie Ng disbelieved his testimony and accepted the evidence of the two EPD officers. Accordingly, he was convicted of the Offence. Deputy High Court Judge Gary Lam (“Deputy Judge”) dismissed the appeal against conviction. 

At the Court of Final Appeal (“CFA”), Counsel for the Appellant argued that the Magistrate’s conduct of the trial and treatment of the evidence had denied him a fair trial. Since the Appellant was unrepresented at trial, it was incumbent on the Magistrate to assist him in the conduct of his defence and to conduct the trial fairly and impartially, as well as address and explain material inconsistencies in the evidence of the EPD Officers.

The CFA’s ruling – Magistrate denied the Appellant of a fair trial

In a unanimous judgment written by the Honourable Mr Justice Fok PJ, the CFA held that the Magistrate’s conduct had denied the Appellant a fair trial in that:

• The Appellant’s only defence was an outright denial of the prosecution evidence and an accusation that the prosecution witnesses were lying about the assault.  Therefore, inconsistencies in the evidence of the EPD Officers were “clearly relevant to that defence” and should be put to the prosecution witness to test the reliability of their recollection of events and their credibility;

• The Magistrate, being bound to assist the Appellant as an unrepresented defendant, should fairly have put these matters to the prosecution witnesses to determine if these were in fact material inconsistencies that might undermine the prosecution evidence;

• During cross-examination of one of the EPD Officers, the Magistrate asked only 10 questions of the witness but asked 60 questions of the Appellant. Considering the transcript as a whole, in particular the tenor as well as the number of questions put to him, the Court is given the distinct impression that the Magistrate was using the exercise of clarifying what the Appellant wanted to put to the prosecution witnesses as an opportunity to challenge the reliability and credibility of his own version of events, rather than that of the prosecution: see CFA Judgment at paragraphs 23 to 25.

The CFA’s ruling – Magistrate’s approach prejudiced the Appellant

The Deputy Judge took the view that the Magistrate must first understand the Appellant’s stance before assisting him in putting the defence case to the prosecution witnesses, and the approach taken by the Magistrate did not prejudice the Appellant. Moreover, the Deputy Judge found that the Magistrate was impartial when examining the evidence. 

The CFA disagreed with the Deputy Judge’s conclusions and held that, as the transcript showed, the Magistrate’s assistance to the Appellant during the cross-examination of the prosecution witnesses did prejudice him since she did not put the various inconsistencies in their evidence to those witnesses.  In the context of this case, that omission was substantially to the Appellant’s disadvantage. 

Even if it was arguable that the Magistrate erred in failing to address or resolve the inconsistencies between the evidence of the EPD Officers, the Magistrate proceeded on the erroneous basis that their evidence was mutually consistent when there were in fact significant inconsistencies. Furthermore, the appearance of a fair trial was put in doubt by the Magistrate’s conduct of the questioning of the Appellant when she was assisting him to cross-examine the prosecution witnesses: see CFA Judgment at paragraph 27.

For the above reasons, the CFA held that the Appellant was denied a fair trial, allowed his appeal and quashed his conviction. The Respondent was ordered to pay the Appellant’s disbursements.

Representation:

Eric TM Cheung (Solicitor Advocate) and Carter Chim, instructed by ONC Lawyers, acted for the successful Appellant on a pro bono basis.


 

 

Carter Chim

Carter was called to the Hong Kong Bar in 2012 and has established a solid practice specialising in competition law, advising clients in both the public and private sectors. In 2015-2016, he was appointed as a legal counsel to the Competition Commission (Hong Kong). He is now a member of the Hong Kong Bar Association’s Special Committee on Competition Law and a non-governmental advisor to the International Competition Network. Carter is also experienced in public law and criminal law.

Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.