The Queen v. Tso Yuen Shui

HCMP002137/1986

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Coram: Sir Alan Huggins, V.-P., sitting as an additional judge of the High Court.

Date of Judgment: 21st October 1986

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JUDGMENT

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1. This is an application for leave to appeal out of time. The Applicant was one of two defendants brought before a South Kowloon Magistrate. He was convicted on 17th February 1983 upon a charge of fighting in a public place. The present application was filed on 30th September 1986: it is therefore over three years out of time.

2. The contention of the Applicant is that he was wrongly convicted. Yet the record shows that he pleaded Guilty. The record further shows that, when asked if he had anything to say in mitigation, he said that he had nothing to say. Thereupon he was conditionally discharged upon entering into a bond in the sum of $500 to come up for sentence if called upon during the following one year. He was also ordered to pay $200 costs. He entered into the recognizance and paid the costs.

3. He now asserts that, when he went to the South Kowloon Magistracy subsequently, he was informed that the magistrate had ordered that the conviction be not recorded. He further says that he was shown a document which indicated that no conviction had been recorded. Other than that, he has asserted that the magistrate himself said that he was not going to record a conviction and that that was why he pleaded Guilty. The magistrate's record is before me. It shows nothing of the kind. If there were any record in the Magistracy to the effect that no conviction was to be recorded, it would be a wrong record.

4. Nevertheless I granted an adjournment last week to enable the Applicant to produce, if possible, evidence of this incorrect entry, because he appeared to be very aggrieved. Not surprisingly he has been unable to produce any evidence of an incorrect record at the registry. I am satisfied that the magistrate himself intended that a conviction be recorded. Indeed, this was a case where it would have been wrong for the magistrate not to record a conviction.

5. The Applicant is asking. for yet a further adjournment.  I see no purpose in granting a further adjournment. There is clearly no merit whatsoever in this application: the long delay has not in any way been properly explained.

6. The application is dismissed.

21st October 1986

Representation: