Chapter 7
Trial
Charges against defendant
On 21 December 2017, the defendant was brought to West Kowloon Magistrates’ Courts for mention. He was charged with two counts of agent soliciting an advantage and one count of agent accepting an advantage, contrary to section 9(1)(a) of the POBO, Cap. 201, as well as one count of assault occasioning actual bodily harm, contrary to section 39 of the Offences against the Person Ordinance, Cap. 212, Laws of Hong Kong.
Troubles over the witnesses?
First, it was about the first complainant.
After the trial date was fixed, the case officer handed over the court summons to the witnesses in person and explained the relevant court procedures to them. As there was a time gap between the statement taking and the court hearing, the investigator would explain the legal procedures to the witnesses and remind them of the case through their statements.
During a phone conversation with the first complainant, the officer had a strong feeling of his evasive attitude, showing that he did not want to testify against the defendant in court!
The first complainant admitted that he had filed a complaint simply because he did not want to pay the remaining $2,000 to the defendant. The arrest and dismissal of the defendant meant that his purpose had been achieved, and that he no longer needed to rely on the defendant to secure a job. Therefore he did not care if the defendant would be convicted or not. Besides, the construction industry job market was quite narrow, he worried that he would lose his job if he was considered a trouble maker, and that he might even be subject to retaliation if he testified in court. Not wanting to receive the summons or testify in court, he tried every means to get away from the officer.
The investigating officer then explained to him about the laws of Hong Kong – he had actually breached the POBO by paying a bribe of $1,000 and he had been granted immunity from prosecution by the DoJ on condition that he had to testify in court, otherwise he may have to bear the legal responsibility. The first complainant eventually agreed to testify in court after the officer’s explanations.
The case officer emphasised that the successful conviction in this case hinged on the assistance and reliable evidence given by the witnesses. “It is very important to have an honest witness to give reliable evidence in court.”
Before each court appearance, the investigating officers have to give the court summons to witnesses by hand. Receipt of the court summons represents the witnesses’ understanding of their being summoned to court and failure to do so will be regarded as contempt of court. “Witnesses should understand that a case does not end with statement taking. They are expected to fulfill their civic responsibility by providing assistance all the way until their court appearances.” He smiled, “Not being able to take leave or going on a trip are no excuses!”
It was finally confirmed that the first complainant would testify in court. However, the second complainant did not wish to testify in court either. He told the investigating officer over the phone that he was unable to appear in court because he was currently in hospital due to health reasons.
After then, the investigating officer visited his home. As the second complainant was really not at home, the officer told his wife about the purpose of his visit. She then went to the hospital with him. It turned out that the second complainant having had a heart disease needed an urgent surgery to implant a pacemaker. He also had bought an air ticket to India for a surgery.
The investigating officer first made an application to court for an adjournment, and then sought advice from the second complainant’s attending doctor. After assessing the health conditions of his patient, the doctor said that the second complainant could testify in court. In fact, he was not recommended to travel all the way to India for a surgery because the long journey might worsen his conditions.
As the second complainant did not speak English and could only communicate in Hindi, therefore his friend was asked to act as an interpreter. The investigating officer told him the benefits of having the surgery in Hong Kong for its advanced medical facilities and remarkable performance in similar surgeries. Assistance in whatever form was also given to the second complainant, including facilitating communication with the hospital and producing court summons for justification purpose.
Deeply moved by the officer’s sincerity, the second complainant finally agreed to testify in court. Due to his health conditions, the investigating officer gave him rides on the days of his court appearances. On several occasions when he gave evidence in court, he needed to take a break for feeling unwell.
The second complainant appeared in court on two consecutive days to testify against the defendant. On the third day after his court attendance, he underwent a heart surgery in Hong Kong which was very successful.
“The relationship between investigating officers and witnesses is very intricate.” Throughout the whole investigation process of each case, investigating officers will follow up on the engagement of witnesses. For cases requiring long investigation time or a retrial, they will maintain regular contact with the witnesses and keep them posted of the development, hoping that they will continue to provide assistance and testify in court.
The investigating officer was deeply impressed by the second complainant. “I am grateful for his willingness to stay in Hong Kong to testify in court. On the two days that he attended court, I really worried a lot about his health condition and told him to take a break when feeling tired. He could finally make it and finish giving evidence.”
The investigating officer was very worried about his surgery and was relieved to find that it went well. “On the day of passing sentence, I called to tell him that the defendant was found guilty!” The investigating officer recalled, “During his recovery from the surgery, I paid him a visit and thanked him again for his help.”