The Queen v. So Hung-lim

HCMA000156/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 156 of 1984

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BETWEEN

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Coram: Hon. Penlington, J. in Court

Date: 25th May 1984

Date of hearing: 25th May 1984

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JUDGMENT

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1. This is an appeal against conviction. The facts of the case were that the appellant who was the first accused in the court below was convicted on charges of blackmail and theft in connection with a water pipe which the victim of the case has been using apparently without the consent of the first and second defendants, who had installed this pipe, at some expense. The sole ground of the appeal argued before me is that the magistrate did not afford to the appellant, who unrepresented before him, the opportunity at the close of the evidence to make a final submission on his own behalf. The appellant was convicted on both charges only on the basis that he was aiding and abetting the second defendant. He was given a conditional discharge and was bound over. He was to pay $400 costs and also some compensation to the victim. The magistrate has kept meticulous record in this case, including recording cross-examination in question and answer form, and the only omission from the record is the apparent failure to ask the appellant if he wish to make final submissions and also his failure to ask the appellant if he wishes to cross-examine his co-accused. I have been referred to two authorities. The first one is LAM Kwok-hing, Criminal Appeal No. 199 of 1976 where Cons, J. said that the appellant had not be given an opportunity to re-examine himself or to address to the magistrate at the close of all the evidence. On the particular fact1s of that case he did hold that was not a fatal omission but he seems to have addressed himself mainly the question of the failure to give an opportunity to re-examine, and concluded that the right is in fact seldom exercised by an unrepresented defendant. It does not appeared on the fact of the judgment to have considered in any detail the question of the failure to give the appellant the right to make final submission . In SIU Yeung-lung, Criminal No. 443 of 1983, a recent decision of the Chief Justice, he said that in the case where an unrepresented defendant was appearing by himself and was the only defendant that failure to give him an opportunity to make a final speech is a serious nission and he quashed the convictions and order a re-trial. I feel that must be right and the only way that case can be distinguished from the present one is that here there was another defendant who was represented, who did make submissions as to the credibility of the witnesses. This matter depended on that credibility and that submission must have been on behalf on both accused. If the second accused was acquitted the first accused must, on the facts, also be acquitted. However I think, in this case quite clearly there were difference considerations affecting the first accused as even if the second accused was guilty the magistrate had to determine whether the conduct of the first accused was such as to make him an aider and a better so as to bring him into within Section 89 of the Criminal Procedure Ordinance, which the magistrate has referred to in his judgment, and I think while it may be doubtful of the appellant could have addressed the magistrate to any effect on that rather technical legal aspect he should have been given an opportunity to persuade the magistrate that while he was present that he in fact played no part in the blackmail and theft. As the magistrate did keep such a careful and accurate record the fact that he did not record giving the appellant that opportunity points strongly to the fact he was not given an opportunity to address on the facts of this case I think that the conviction is unsatisfactory. The appeal against convictions must therefore be allowed.

2. Turning to the question of re-trial the principles are if it is not a question allowing the prosecution a second bite of the cherry and if the evidence is strong so that a conviction is likely to follow, there should be a re-trial.  It is, however, a matter of discretion in each case. Here quite clearly the main culprit was the second accused. He has been convicted and given a suspended sentence. The most that could have been said in respect of the appellant was that he was present and lending support to the second accused and he was given a conditional discharge, although conviction was recorded. The event took place in September 1983 and it is now some seven or eight months ago. If a re-trial is ordered that presumably would not take plat for another two or three months. In exercise of my discretion in this matter, in view of the part played by the appellant, I will not order a re-trial.

3. The fine, costs, and compensation, if paid, are to be refunded.

Representation:

Simon Westbrook (D.L.A.) for the Appellant

M.J. Kenny, Counsel for the Crown