Chan Ying Chi v. The Queen

CACC000180/1982

Magistrate's ruling on no case to answer - Order for retrial.

BETWEEN

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Coram: Jones, J.

Date: 7 April 1982

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JUDGMENT

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1. The appellant was convicted on the 5th February 1982 of an offence contrary to s. 24(1) of the Money Leaders Ordinance which charged that he lent $100,000 to Lau Kwan-chat at an effective rate of interest exceeding 60 per cent per annum namely 1260 per cent per annum. He was sentenced to a term of imprisonment for twelve months.

2. He appeals against his conviction and sentence.

3. The gravamen of his appeal is that when the learned magistrate held that there was a case to answer he made a finding of fact that the transaction complained of amounted to a loan. It was the appellant's case that the money was not lent, but was for goods sold and delivered. The learned magistrate in his ruling said 'In terms of the section I am persuaded that the defendant did in fact loan $100,000 to the principal Crown witness PW1. The facts are amply proven that in the business premises of Escort Trading Company a cheque drawn in favour of cash was negotiated on the same day at a bank in Tsimshatsui by Mr. Peter Leung who remains untainted by any suggestion of criminal involvement.' After the learned magistrate ruled that there was a case to answer, the defendant gave evidence and was convicted.

4. Quite clearly when he ruled that there was a case to answer the learned magistrate gave the impression that he had already made up his mind.

5. At the stage when a ruling is made that there is a case to answer the learned magistrate should generally state that there is sufficient evidence for the case to proceed, R. v. Falconer-Atlee⁽¹⁾.  I adopt the words of Cons J. In Chow Hing-leung v. The Queen⁽²⁾ cited by Mr. Sedgwick who appeared for the appellant when he said 'The appellant now nurses a grievance which to my mind is a justifiable grievance.'

6. Mr. Nicholas who appeared for the Crown quite properly concedes that the learned magistrate's ruling in the terms expressed was in error but applies for a retrial. He cited in support Au Pui-kuen v. A.G. of Hong Kong⁽³⁾ where at page 280 Lord Diplock said:

"'The true principle is that the court will not order a new trial where a conviction is improbable or where a conviction will, assuming the same evidence is given, be unsafe or unsatisfactory. In any other case the court will consider the strength of the evidence as just one of the factors relevant to the determination of what are the interests of justice. It is a factor which in some cases may assume greater importance than in others.'

In their Lordships' view this states the matter correctly, although in one respect it may be too favourable to the defendant. If by the reference to a conviction being "improbable'' is meant no more than that the court believes that an acquittal is more likely than a conviction, there may be cases where this belief does not in itself provide a conclusive reason for not ordering a new-trial. As was pointed out by Gould Ag. C.J. in Ng Yuk Kin v. The Crown, 39 H.K.L.R. 49, 60, which was a case of rape, there may be cases where it

'..... is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.' "

7. Mr. Sedgwick on the other hand submits that the appellant has already suffered enough and it would not be in the interests of justice to make such an order.

8. The learned magistrate in his Statement of Findings described the case to be a very serious one of loansharking. Having read the transcript of the evidence and his decision I agree.

9. I am therefore of the opinion that this case should be retried. The conviction is therefore quashed and the sentence is set aside. I shall make an order for a retrial de novo before another magistrate. There will be no order as to costs. The bail of the appellant is extended until further order.

(1)    (1974) 58 Cr. App. R. 348 C.A.

(2)    C.A. 811/1977

(3)    (1979) 2 W.L.R. 274

Representation:

Mr. Sedgwick (Liu, Chan & Lam) for Appellant.

Mr. Nicholas, Crown Counsel (Legal Department) for Respondent.