Lau Wai Wo v Hksar

CourtCourt of Final Appeal (Hong Kong)
Judgment Date19 Dec 2003
Citation[2004] 1 HKLRD 372; (2003) 6 HKCFAR 624
Judgement NumberFACC5/2003
SubjectFinal Appeal (Criminal)
FACC000005/2003 LAU WAI WO v. HKSAR

FACC No. 5 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2003 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 802 OF 2002)

_____________________

Between :
LAU WAI WO Appellant
AND
HKSAR Respondent

_____________________

Court: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Mortimer NPJ and Lord Scott of Foscote NPJ

Hearing and Decision: 5 December 2003

Handing Down of Reasons: 19 December 2003

__________________________

J U D G M E N T

__________________________

Mr Justice Bokhary PJ:

1. At the conclusion of the hearing we announced that, for reasons to be handed down in due course, we allowed the appeal so as to set aside the bind-over order and award the appellant his costs here (where he was in person but would have incurred some expense) and in the courts below (where he was legally represented). We now hand down our reasons, being those given by Lord Scott of Foscote NPJ.

Lord Scott of Foscote NPJ:

2. This appeal raises interesting and, we think, important questions about the power of a magistrate to bind-over a defendant who has been acquitted of the offences charged and about the procedures that should be followed by the magistrate before doing so. These questions require a context and it is convenient to start by describing what led to the bind-over imposed on the appellant, Mr Lau Wai Wo.

The facts

3. On 3 June 2002, the appellant was charged with common assault on his brother, Lau Hoi Kit. The Particulars of the offence were that -

"... on the 6th day of February, 2002 at outside ground floor, 66-67, Sun Tin Village, Shatin, in Hong Kong, [the appellant] assaulted Lau Hoi-kit."

4. The trial took place on 18 July 2002 before a magistrate, Ms Woo Huey Fang. The appellant was represented by a solicitor. Several witnesses gave evidence. They included the appellant and his allegedly assaulted brother. The magistrate gave a short judgment which was later, with a few amendments not material for present purposes, reduced to writing as a Statement of Determination. She said what she thought of the witnesses, their evidence, the appellant's behaviour and what she should do about it. The corrected transcript of her oral remarks (translated into English) reads as follows:

"COURT: A short verdict. Defendant please stand up. I have heard the testimonies of the prosecution and the defence, the final submission of the defence, and have also observed the demeanour of the witnesses while they testified. The onus of proof lies on the prosecution and the standard of proof is one of beyond a reasonable doubt. The defendant is not required to prove himself innocent. I am aware that the defendant has a clear record and will give due consideration to it.
In this case, none of the witnesses present at the scene, including the defendant, had told the whole truth, and the defendant was the one who had lied most. He refused to give direct answers to most questions. Besides giving irrelevant answers, (he) had also repeatedly evaded questions and refused to answer them. He tried to present himself as a gentle person but his attempt was unsuccessful. In fact it was a total failure. This court does not believe any evidence given by the defendant. His testimony was a pack of lies. It was neither true nor complete. It was even ridiculous and illogical.
I believe on the day in question, there was an exchange of words between the two brothers and foul words were exchanged. I believe that when the defendant came out from the flat after he had gone inside, he was armed with a metal pipe for the purpose of using it against his own younger brother, PW1, but PW1 managed to leave the scene quickly. This court has reservation as to whether the defendant did in fact strike at PW1. Nevertheless, the defendant's behaviour on the material day was definitely improper.
As the saying goes, "it takes more than one day for a river to freeze", however, the defendant, being the elder brother, should have ended the dispute there instead of going back home to fetch a water pipe with a view to using it against his own brother. It was indeed a misfortune to the family that brothers of the same blood should end up like this.
During today's hearing, the defendant made up all sorts of stories to cover up his wrongdoings. He did not admit having done wrong, and had shown no remorse. What's more, that things happened in this way ... the defendant's behaviour in this case is such that this court is afraid that things will go wrong again some day. In view of this, this court will certainly give you, the defendant, the benefit of doubt. The defendant is found not guilty on this charge.
Nonetheless, the court is of the view that it can exercise the right '(sic)' conferred on it by law. It would be appropriate to order that the defendant be bound over to be of good behaviour and to keep the peace. The defendant has to enter into his own recognizance in the sum of $1,000 and to be of good behaviour for one year."

5. By this judgment, therefore, the magistrate acquitted the appellant of the charge against him but, because of the nature and content of his own evidence, ordered him to be bound over. There had been no warning given to the appellant that this might happen and no inquiry as to his ability to find the sum of $1,000.

6. Having announced her decision to acquit the appellant but to bind him over, the magistrate set about the task of explaining to the appellant the effect of her decision. The appellant, naturally enough, was indignant and puzzled about the turn of events. The dialogue between the magistrate and him that followed her short judgment is (translated into English) set out below:

" COURT: (I'll) explain to you the meaning of binding over to keep the peace. It means making an undertaking to the court that in the year to come to be of good behaviour and to keep the peace. Otherwise, you'll be fined $1,000. Do you understand, sir?
DEFENDANT: Your Worship, I want to appeal.
COURT: Okay. First things first, do you understand?
DEFENDANT:

I feel that your judgment is wrong.

COURT: I'm asking you this question again. Please tell me do you understand the meaning of binding over to keep the peace and the consequence of breaching it? Yes or no?
DEFENDANT: I'll ask my lawyer because I don't understand a thing from you people.
COURT: I'll explain again. In the coming 12 months, you must not commit any offence ...
DEFENDANT: I don't ...
COURT:

... You must be of good behaviour. Please don't raise your hand again. Let me finish. In the coming 12 months, you must behave properly and must not break the law. Otherwise, you'll be fined $1,000. Do you understand? Just answer yes or no.

DEFENDANT: But I don't understand ... I mean I understand ...
COURT: (I'll) explain to you again.
DEFENDANT: ... But you erred in ... many points in error.
COURT: First of all, do you understand the meaning of binding over to keep the peace and the consequence of breaching it?
DEFENDANT: Your Worship, actually I have not broken any law. It's unfair that you should have left behind this kind of trouble for me to follow-up.
UNIDENTIFIED
PERSON:
The question is: do you understand what the judge said?
It's okay as long as you understand.
DEFENDANT: But you see, its no use understanding. I don't accept it because you ...
COURT: I don't need your acceptance. This is a court order, sir.
DEFENDANT: But you're being unfair, Your determination is unfair.
COURT: Did you hear that? Contempt of court. Let me ask you first, do you understand what I just told you about the meaning of binding over to keep the peace?
DEFENDANT: I heard that.
COURT: My question was not whether you heard it or not, but whether you understand it or not?
DEFENDANT: Can I not answer this question, Your Worship?
COURT: Of course you can't. I warn you, don't behave like this time and again. I may have to decide against you for contempt of court. Don't waste my time. First tell ... answer me, understand or not understand what is meant by binding over to keep the peace?
DEFENDANT: Understood.
COURT: Understood?
DEFENDANT: (No audible reply)"

7. Following this exchange with the magistrate, the appellant left the courtroom, went to the magistrate's clerk's office and there signed a recognizance under which he was expressed to

"... acknowledge [himself] to owe to the Government the sum of $1,000 to be levied on [his] goods, lands and tenements if [he should] fail in the condition [thereon] endorsed."

The endorsed condition was that:

"... if the within-bounden Lau Wai Wo keeps the peace or is of good behaviour for the term of 12 months now next ensuring (or abstains from doing the thing forbidden, or as the case may be), then the recognizance shall be void, but otherwise shall remain in full force."

The appeals

8. The appellant, as appears from the transcript of the post-judgment exchanges with the magistrate, had been constrained to sign the recognizance notwithstanding his protests about the unfairness of the magistrate's order that he be bound over. His sense of outrage did not abate and he appealed to the Court of First Instance against the order. The appeal was heard by Nguyen J on 24 January 2003...

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