Chapter 8
Appeal and Conclusion of Case
Appeal
The defendant subsequently appealed against his convictions. His counsel argued that the convictions were unsafe or unsatisfactory by submitting three grounds of appeal:
Ground 1
The magistrate erred in construing and quoting the CFA judgment in the case of Chan Chi Wan Stephen in relation to section 9 of the POBO, particularly the mens rea of the person soliciting the advantage. The magistrate also failed to clearly set out in his Statement of Findings the evidence on which he relied to find that the appellant had the required mens rea.
Ground 2
There was no evidence of the defendant’s mens rea to solicit an advantage under section 9 of the POBO. However, the magistrate erroneously found that there was evidence of the appellant’s mens rea for the solicitation offence under section 9 of the POBO. The said finding was contrary to the remarks he made at the stage of closing submissions by the defence.
Ground 3
The facts found by the magistrate were not covered in the particulars of offence in the charges and the basis of the convictions also went beyond the scope of the charges. The magistrate formed the basis for convictions in that the bank was subject to prejudice as the defendant had given more trading advice to PW2, resulting in his spending more time on PW2 and less on other customers. However, that was not the act stated in the charges.
Appeal allowed due to unsatisfactory convictions
In respect of the three grounds of appeal, the deputy judge of the Court of First Instance of the High Court held that Ground 1 was substantiated but not the other two.
The deputy judge ruled that it was incumbent on the magistrate to analyse the evidence and give reasons for reaching a particular conclusion or decision. The appeal was allowed mainly due to the magistrate’s undesirable analysis of the mens rea, resulting in an unsatisfactory basis for the convictions and a degree of technical error. Owing to the magistrate’s undesirable analysis of the mens rea to solicit an advantage, he did not clearly set out in his Statement of Findings the evidence on which he relied to support his findings in relation to the defendant’s mens rea.
After balancing the interests of the public and the appellant, the deputy judge held that it was just and proper to remit the case for a retrial. As a result, the court ordered a retrial before another magistrate.
Retrial and conclusion of case
The defendant had already served his sentence by the time the appeal was allowed in the High Court. As both parties agreed that the judge could make a decision by relying on their respective written submissions, a hearing was not necessary. At the retrial, the defendant pleaded guilty to two charges. He was sentenced to 17 months’ imprisonment and ordered to repay the bank $630,000 in restitution.
