FAMC No. 20 of 2003
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 20 OF 2003 (CRIMINAL)
(ON APPLICATION FOR LEAVE TO APPEAL
Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ
Date of Hearing: 14 May 2003
Date of Determination: 14 May 2003
Mr Justice Bokhary PJ:
1. The applicant was convicted in the Magistrate’s Court of an offence under s.20(c) of the Summary Offences Ordinance, Cap. 228, which makes it an offence persistently to make telephone calls without reasonable cause and for the purpose of causingannoyance, inconvenience or needless anxiety to any other person. He was bound over in the sum of $1,000 for 12 months. His appealagainst conviction was dismissed by Deputy Judge Wright. The nature of the case may be gathered from this paragraph of the appealjudge’s judgment (in which the applicant is referred to as “the Appellant” and the recipient of the calls is referred to as “PW1”):
2. Although he made that admission, the applicant’s statements to the police were mixed in that they were in fact exculpatory. Thiscan be seen from this paragraph of the appeal judge’s judgment dealing with what the applicant said in those statements:
3. The applicant did not testify or call any witness.
4. It was in those circumstances that the trial magistrate did the two things on the basis of which the applicant seeks leave to appealto the Court of Final Appeal on the “substantial and grave injustice” ground. It is urged on the applicant’s behalf that it is reasonablyarguable that each of these two things is a departure from accepted norms amounting to substantial and grave injustice. One is thetrial magistrate’s dismissal as speculative of the defence theory that someone else may have made the calls. The other is the trialmagistrate’s observation that the applicant “could easily have said who else was or might be using his telephone to call PW1 if thatwas really the case” and that this was “the sort of case in which a not incredible explanation given by the accused in the witness-boxmight have created a doubt”.
5. Dismissing a defence theory as speculative is not an uncommon course. It does not imply that the defence theory had not been consideredbefore being dismissed.
6. Adverse observations on omissions from accused persons’ out-of-court statements or on their failure to enter the witness-box oftengive rise to controversy. And this is so not only when such observations are made by judges to juries but even, although less so,when they are made by judges or magistrates sitting alone. Judges and magistrates should pause long before making such observations.The focus should always be on what is in evidence rather than on what is not in evidence. In the present case, the trial magistrate’sobservation on what the applicant did not say has generated much debate. We make no criticism of that, but we see no warrant forletting the debate proceed all the way to the Court of Final Appeal. We can safely say here and now that, taken in context, whatthe trial magistrate said did not stray beyond the limits set by the Court of Final Appeal in Li Defan v. HKSAR (2002) 5 HKCFAR 320. It is clear beyond reasonable argument to the contrary that no departure from accepted norms was involved.
7. Despite the skill with which Mr Lawrence Lok SC for the applicant has argued this application for leave to appeal, leave is refused.
Mr Lawrence Lok SC and Mr Edwin Choy (instructed by Messrs Haldanes) for the applicant
Mr P.K. Madigan (of the Department of Justice) for the respondent