The Queen v. Hui Dik Lun and Others

HCMA001797/1988

1988, No. 1797

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H E A D N O T E

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Threat by magistrate to penalise lying defendants in costs - improper comment - convictions quashed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1797 OF 1988

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BETWEEN

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Coram: Hon. Bewley, J. in Court

Date of hearing: 28 April 1989

Date of delivery of judament: 28 April 1989

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J U D G M E N T

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1. The appellants were convicted of common assault by Mr Banks at Western Magistrates Court.

2. The case arose out of a dispute following a minor traffic accident.

3. In the course of the 1st appellant's evidence in chief the magistrate has recorded the following:-

"What this witness has described is an impossibility. PW1 is lying on top of D5. D2 is struggling with PW1 to have his hands released from PW1's grip. At the same time PW1 is kicking his feet in the air and then kicks D2 in the stomach. All defendants are on the ground at this point.

I only hope that all 5 defendants are not going to put up fabricated stories. I make no judgment at this stage but what this witness has said cannot have occurred in the manner he described. If there were fabrication it will be reflected in costs."

4. Defence counsel at the trial has filed an affirmation in which he states that the other appellants subsequently indicated to him that, because of the magistrate's warning, they would not give evidence. They did not do so.

5. The magistrate's s comments were, improper and should not have been made. The Crown does not seek to uphold the convictions. The appeal is allowed and the convictions quashed.

Representation:

Mr D. Pang, Crown Counsel, for Respondent

Mr G.J.X. McCoy (M/s Woo & Woo) for all Appellants