R. v. Cheung Fong Man

HCMA000958/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.958 OF 1996

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Coram : Hon Sears, J. in Court

Date of hearing : 27 November 1996

Date of judgment : 27 November 1996

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J U D G M E N T

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1. This is an appeal against conviction passed by Mr James Lee at the Eastern Magistracy. The defendant was accused of going through the MTR turnstile without inserting a ticket. It was alleged that he bumped the gate though apparently the gate was working. He appeared in person.

2. The prosecution was brought by the MTR. In my judgment, they are under the same duty as any prosecuting authority to take all reasonable steps to know about the person with whom they are prosecuting, namely, whether he has previous convictions. This man appeared in person. It was not brought to the attention of the magistrate that he was a man of good character. Consequently, the magistrate did not direct himself on either of the two well known limbs of Berrada, that is as to his credibility or the fact that he is a person who had attained 35 years of age and had never got into trouble at all. He was a teacher and a member of the Christian church. These matters should have been taken into account by the magistrate, they were not.

3. In my judgment that flaws this conviction. Everyone must be treated fairly even if they are being prosecuted by the MTR. For those reasons, I allow the appeal and conviction is quashed.

Representation:

Mr Josiah H.K. Lee, inst'd by M/s Edmund W.H. Chow & Co., for Appellant

Mr W.S. Cheung, C.C., for Crown/Respondent