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Magistrate Vivian Ho acquitted a 70-year-old former police senior colonel of 2 counts of shop theft.

The Defendant, a 70-year-old former police senior colonel (大校) and deputy director (副廳長) of a Provincial Public Security Department in Mainland China, was charged with 2 counts of shop thefts. The prosecution case was that within a 2-week period, the Defendant visited a supermarket twice and took away groceries without payment. On the second day of his visit, the Defendant was stopped by a shop-manager of the supermarket. The police were called. It was alleged that the Defendant then signed on a record of interview that he made a confession under caution – “I stole the food out of greed for my own consumption” (我一時貪心偷來吃) in Putonghua.

The Magistrate ruled the alleged confession inadmissible. The Court found the arresting officer’s evidence unbelievable – it was alleged that she communicated with the Defendant in fluent Putonghua, read out the Notice to Person in Police Custody in Putonghua (without the assistance of the PTH interpreter despite his presence and merely asked him to witness the event), communicated with him in Putonghua on miscellaneous matters, but then suddenly changed to Cantonese when cautioning him. The police officer also flagrantly neglected the purdah warning of the court and read her own police notebook during the luncheon adjournment. The Court found it extremely unsettling that the Defendant and his daughter-in-law initially intended to find a lawyer to assist the Defendant, but after around 1 hour in the absence of the PTH interpreter, the Defendant suddenly said he would not need any legal assistance and even asked the lawyer who was on his way not to come to the police station. Further, it was beyond belief that whilst the Defendant repeated no less than once in front of the shop manager (who was a prosecution witness) that he intended and had the ability to pay but merely got lost within the supermarket, but then within a few minutes changed his version to him stealing the goods “out of greed”. In all, the court found that the prosecution failed to prove beyond reasonable doubt that the Defendant alleged confession was obtained voluntarily.

The Magistrate further accepted the evidence of the defence medical expert. It was an uncontested fact that the Defendant had suffered numerous strokes shortly before the time of the alleged offence. MRI images revealed that the Defendant’s left temporal and left occipital lobe had serious damages after the strokes which had affected the Defendant’s visual ability, speech function, and short-term memory. Having assessed all the evidence, the Magistrate had grave reservation as to whether the Defendant did in fact acted dishonestly in the said incidents. The Defendant was therefore acquitted of both charges of theft.

Simon So appeared with Jack Hui in the said trial which lasted for 4 days, involving 4 prosecution witnesses and 3 defence witnesses.

The court sentenced a mainland student using false academic qualifications to enter into Hong Kong to 17 weeks imprisonment leading to her immediate release.

The mainland student, who held a bachelor’s degree from a university in the PRC, made false representations to the immigration department and a local university by saying that she held a bachelor’s degree from a university in New York. Eventually, the defendant was offered to study in the local university’s master degree programme. The defendant was initially charged with (1) obtaining services by deception and (2) causing to be made a false statement for the purpose of obtaining an entry permit.

Upon negotiation, the prosecution allowed the defendant to plead guilty to charge 2 and charge 1 was withdrawn. In mitigation, the court was urged to pass a sentence allowing the defendant’s immediate release.

After hearing mitigation, the magistrate adopted a starting point of 27 weeks’ imprisonment. The sentence was reduced by one-third to reflect the defendant’s guilty plea. Due to the defendant’s good character and low (if any) risk of re-offending, the magistrate further reduced the sentence by 1 week. Given that the defendant had been remanded for 17 weeks already, the court ordered the defendant to be immediately released.

Simon So represented the defendant for plea in mitigation.

Deputy Magistrate Eric Yao acquitted a defendant (“D”) charged with indecent assault and criminal damage and ordered the prosecution to pay costs to the defence (except costs for permanent stay application).

Both D and the complainant, X, were around 17 and did not know one another. The prosecution case was that D followed X on a rainy night and brushed X’s breast once. It was said that D threw X’s phone with great force onto the ground. In stark contrast, the defence case was that D slipped and fell amidst the rain and fell onto X. Only X’s back was bumped into by D’s elbow by accident. Both D’s and X’s phones dropped to the ground. When D tried to pass X’s phone to X, X asked for a compensation of HK$ 2,000 from D and threatened to call the police if the demand was refused. D refused, and X called the police.

The trial began with a permanent stay application since on-site police officers said they thought they were investigating a “robbery” case as requested by the 999-call centre. When defence tried to obtain the audio recording of the 999 call made by X, it was revealed that the police did not seize the recording and it was no longer available due to lapse of time. Having heard arguments, the court dismissed the permanent stay application.

The Magistrate found numerous doubts in the prosecution’s case.

(i) X said she called Y, her boyfriend, immediately after the alleged incident. However, X never complained about being molested – rather X only said her mouth was covered by someone.

(ii) Y gave a different account of what X told her in the alleged call, adding that X complained of being pushed onto the ground. X’s and Y’s accounts were simply different.

(iii) By way of admitted facts, the prosecution and the defence agreed the call history between X and Y. There was never a call between them after the alleged indecent assault. The court had great doubt accepting X’s and Y’s version.

(iv) X subsequently called 999. Yet, when making the report, X never complained being indecently assaulted. Instead, she complained her mobile phone being snatched. The court found that beyond imagination.

(v) X gave numerous versions about how she told the police about the indecent assault, including “her left breast being brushed”, “her right breast being brushed”, “she forgot which side of her breast being brushed”, and “she already forgotten how she told the police at the scene”.

(vi) The court inspected the state of X’s mobile phone. If X’s version that D threw her phone onto the floor was true, the extent of damage would not have been so minor.

The Magistrate found X unreliable and found D not guilty in both charges.

Simon So, appearing with Herman Ho, represented D in the 3-day trial. They also made a High Court bail application before Anna Lai J after Ag Principal Magistrate Winnie Lau refused admitting D to bail when he was first charged. The Judge granted D bail after him being remanded for 7 days.

Recorder Jenkin Suen SC granted costs on an indemnity basis to the Plaintiff after the Defendant withdrew a Statutory Demand on a disputed debt.

The Plaintiff took out an Originating Summons (“OS”) to injunct the Defendant from presenting a petition based on a disputed Statutory Demand. The Defendant withdrew the Statutory Demand after Hon Linda Chan J’s observation that “[i]t appears that the debt is subject to a bona fide dispute on substantial ground and, therefore, cannot form the subject matter of a statutory demand”. The Plaintiff applied for costs on an indemnity basis whilst the Defendant contends that there should be no order as to costs albeit accepting that the Plaintiff is the effective winner of the OS.

Recorder Suen SC took the chance to summarise the principles of costs in a winding-up context: [6]. The Recorder found that the Defendant was not entitled to file affirmation evidence as leave was specifically refused by Hon Linda Chan J, and even if it was allowed to rely on further evidence, it would not assist it. The Recorder also agreed with the Plaintiff that it was no answer for the Defendant to say it only realised after reading the Plaintiff’s affirmation that the Plaintiff has a bona fide defence and the Defendant should have appreciated that there was a bona fide dispute as the alleged debt was based on an oral agreement and not particularised in the Statutory Demand.

The Court agreed with the Plaintiff and emphasised that winding-up proceedings are only intended for straightforward cases, and the Defendant issuing a statutory demand regarding a debt which it should have appreciated was subject to a bona fide dispute amounted to an abuse of process: [30]-[31]. As such, costs on an indemnity basis were awarded to the Plaintiff.

Simon So and Jack Hui represented the Plaintiff. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=163102&currpage=T.

Justice must not only be done, but must also be seen to be done. The Court of First Instance reiterated the importance that all defendants should be given a fair trial.

The Appellant was charged with, inter alia, indecently assaulting his daughter X. He pleaded not guilty and stood trial before a Magistrate. He was subsequently convicted and sentenced to 12 months’ imprisonment. In January 2024, the Appellant was granted bail pending appeal by Hon Anna Lai J.

DHCJ E Lee allowed the Appellant’s appeal against conviction on the ground that the trial magistrate had entered into the arena. On appeal, the Appellant made three complaints: (1) the Magistrate asked almost 60 questions after the prosecution indicated that they had no re-examination. Subsequently, the trial magistrate used X’s answers to these questions as “ammunition” for him to eventually dispel the Appellant’s defence and convict the Appellant (following 𝑯𝒐 𝑾𝒂𝒊 𝑳𝒂𝒎 (何煒林) [2022] HKCFI 1736 𝑾𝒐𝒏𝒈 𝑯𝒊𝒏 𝑾𝒂𝒊 (黃騫緯) [2022] HKCFI 2935); (2) the Magistrate substantially interjected/interrupted when the Appellant gave evidence. Arithmetically, the Magistrate intervened 41.94%, 35.03%, and 37.6% during the Appellant’s Examination-in-Chief, Cross-examination, and Re-examination. On the other hand, the Magistrate did not interrupt at all during X’s evidence; (3) the Magistrate’s judicial temperament leads to a reasonable bystander to doubt whether he was afforded a fair trial. Amongst other things, the Magistrate said (in the course of the Appellant’s evidence) “Can you not use the phrase “normally” when giving evidence? I am not sure whether you are normal or not” (可唔可以唔好講『正常』呢兩個字!我唔知你正常定唔正常!); “Even your counsel cannot understand your answers. You are probably the only person in this world will understand what you say…I won’t need you to clarify if I understand. We know how to read! Don’t we?” (你律師都唔明嘅，係全世界得你一個明㗎啫!明就唔洗你澄清啦! 唔識字咩我哋!係咪?!). The Court agreed that the cumulative effect of the three complaints is that the Appellant had been deprived of a fair trial (applying 𝑳𝒂𝒎 𝑻𝒊𝒏𝒈 𝑾𝒊𝒏𝒈 (林天詠) [2022] HKCA 240).

Having allowed the appeal, the Court also ordered the Respondent to pay costs of the appeal to the Appellant.

Simon So (with Herman Ho) representend the Appellant in obtaining bail pending appeal before Hon Anna Lai J. Simon So (with Herman Ho and Jack Hui) representend the Appellant in the appeal against conviction. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=162331&QS=%2B%7C%28%282024%29%2CHKCFI%2C2113%29&TP=JU&currpage=T 

The Court of First Instance reduced the quantum of fine from HK$ 100,000 to HK$ 25,000 for a defendant who had pleaded guilty to operating a gambling establishment.

The Appellant was arrested and pleaded guilty to a charge of operating a gambling establishment before a Principal Magistrate. When acting in person, the Principal Magistrate (instead of letting the court interpreter interpret the full facts of the case) on his own volition “summarised” and “interpreted” the facts as follows: “the Police raided the flat…there were three mahjong tables…you guys were gambling there, correct?” (上址呢就係當日呢遭到呢個警方既掃蕩喇…上面有呢三張呢咁既電子麻雀檯…你地四個呢就係度賭緊錢。). The Appellant told the Principal Magistrate that he was illiterate, and said he did not know how to mitigate. The Principal Magistrate then sentenced him to 14 days’ imprisonment. The Appellant immediately arranged for private legal representatives to review the Principal Magistrate’s sentence. Unfortunately, the review could only take place the next day and the Appellant served 1 day of imprisonment. On the following day, after hearing submissions, the Principal Magistrate reviewed his sentence, and ordered the 14 days’ imprisonment be suspended for 3 years, but additioanlly fined the Appellant for HK$ 100,000. The Appellant appealed.

On allowing the appeal against the sentence, DHCJ Frankie Yiu noted that the Principal Magistrate did not fully interpret the Brief Facts prepared by the prosecution. Nevertheless, the Principal Magistrate used facts contained in the Brief Facts but not interpreted to the Appellant as aggravating factors justifying why he fined him for HK$ 100,000. The court disapproved of this practice. Taking into account various authorities, the CFI agreed that a fine of HK$ 100,000 is manifestly excessive. The Court allowed the appeal and reduced the fine to HK$ 25,000, to be paid within 3 months.

Simon So (with Herman Ho) represented the Appellant in the appeal against sentence. The Full Judgement was published on https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=162007&currpage=T. 

Deputy Magistrate Li Cheuk-wai acquitted defendant charged with claiming to be a member of a triad society. The prosecution was also ordered to pay costs to the defence.

The case originated from police undercover operation “Arrowhit” in August 2021. The prosecution case was that, after a night of drinking, someone who was allegedly the defendant (the “Person”) told the undercover police officer (the “UC Officer”) working at the bar as a waiter that he was a member of the Tsuen Wan branch of “Wo Shing Wo”, a triad society, and invited the UC Officer to follow him instead of his current triad protector. This was allegedly the second encounter between the UC Officer and the Person. About 9 months after the event, the operation turned overt and the defendant was positively identified during an ID parade as the Person.

Under cross-examination, the UC Officer accepted that the only descriptions he had noted down on his occurrence book and/or his witness statements were the Person’s estimated age, ethnicity, and gender, and there were plenty of people in Hong Kong fitting those descriptions. He also accepted that the environment at the time was dark and noisy and he had consumed alcohol. Based on the above, the Magistrate found that she could not safely rely on the UC Officer’s identification and found the defendant not guilty. The Court also allowed the defence’s costs application.

Simon So (with Jack Hui) represented the defendant in the 2-day trial.

Magistrate Patrick Tsang acquitted a defendant charged with wounding his wife and awarded him costs.  

The defendant, a person with a clear record, was charged with wounding his wife (“the Complainant”). The prosecution did not call the Complainant to give evidence. It was the prosecution case that the defendant rang a relative (“PW2”) of the Complainant and said he fought with the Complainant and the Complainant was vomiting blood (同老婆打交，打到佢嘔血) (“the Phone Conversation”). PW1, a police officer, took a photo of the call history of the defendant’s phone (“the Photo”). The defence opposed the admissibility of the Phone Conversation and the Photo.

The Magistrate ruled the Photo inadmissible. According to Sham Wing Kan v Commissioner of Police [2020] 2 HKLRD 529, it is essential for the police officers to first obtain a warrant before conducting a search of the call record of the Defendant’s phone. For a warrantless search, police officers should make an adequate written record of the purpose and scope of the warrantless search as soon as reasonably practicable after the search. No record howsoever was made. Insofar as the Phone Conversation, whilst the Magistrate ruled the same to be admissible, the Magistrate did not allow the prosecution to invite PW2 to identify the person in the Phone Conversation. In the course of the investigation, the prosecution never invited PW2 and/or the defendant to take part in voice identification. Further, PW2 admitted under cross-examination that she was playing “Mahjong” when the Phone Conversation took place. Applying R v Flynn & St John [2008] 2 Cr App R 20 (a direction adopting the traditional Turnbull direction for visual identification in cases of voice identification) and taking all things into consideration, the Magistrate considered that he could place no weight at all on the identity of the person in and/or the content of the Phone Conversation. The Defendant is, accordingly, acquitted.

Having heard submissions, the Magistrate agreed that the prosecution should have halted the prosecution once it was known that the Complainant refused to give evidence. The Magistrate was of the view that the prosecution’s evidence was extremely flimsy. Accordingly, the defendant was also entitled to his costs.

Simon So represented the defendant in the 2-day trial as sole advocate.

Magistrate Kelly Shui found the defendant not guilty of using a false instrument.
 
The defendant was charged with using a false instrument. The defendant submitted to the Agriculture, Fisheries and Conservation Department an application form to change the registered keeper of a dog. The application form stated PW1 as the dog’s old keeper and the defendant as the dog’s new keeper and bore both their signatures. PW1 learned of the application from the defendant’s girlfriend and denied ever signing on the application form.
 
The learned Magistrate found there was doubt as to whether the defendant “knew or believed” that PW1’s signature on the application form was false and acquitted the defendant.
 
Jack Hui represented the defendant as sole advocate in the 3-day trial. 

Deputy Magistrate Linda Chan found the defendant not guilty of obstructing and resisting police officers with costs.

The defendant was charged with one count of obstructing a public officer (Charge 1) and one count of resisting a police officer (Charge 2) in the course of an 599G operation in a pub. The prosecution case was that the defendant deliberately stood in front of a karaoke room (Room V5) of the pub and waved his hands vigorously, preventing police officers from entering Room V5. Despite repeated warnings by the officers, the defendant still refused to cooperate. He was therefore arrested for Charge 1. When a police officer attempted to hand-cuff him, the defendant resisted vigorously. He was therefore also arrested for Charge 2.

Acquitting the defendant, the Magistrate considered that the prosecution’s case contained inherent material conflicts (控方案情有重大不能磨合的分歧) and was inherently improbable (內在不可能). Whilst the complainant said that the defendant obstructed Room V5 for a lengthy period of time, one of the police witnesses said he was able to enter Room V5 without difficulty if he had so wished. Further, two other police witnesses testified that they did not see any of the complained acts as alleged by the complainant. Given that the scene in question was a narrow corridor, the Magistrate considered that it would simply be impossible for those police witnesses not to have noticed the defendant’s prolonged obstruction had it really happened. As such, the Magistrate found that she had difficulty giving weight to the complainant’s evidence and acquitted the defendant of both charges. Costs was granted in favour of the defendant.

Simon So (with Jack Hui) represented the defendant in the said 2-day trial, cross-examining 6 police officers.