The Queen v. Chan Cheuk Wah

HCMA000866/1988

IN THE SUPREME COURT OF HONG KONG

(APPELLANT JURISDICTION)

MAGISTRACY APPEAL NO. 866 OF 1988

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BETWEEN

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Coram: Hon. Hooper, J. in Court

Date of hearing: 17th November 1988

Date of delivery of judgment: 17th November 1988

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REASONS FOR JUDGMENT

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1. It is an appeal from the Magistrates Court of South Kowloon against the conviction of the appellant for being a man living on the earining of prostitution contrary to s.137(1) of the Crime Ordinance, Cap.200.

2. Having, allowed the appeal and set aside conviction, I indicated I would give detailed reasons later. I now do so.

3. Mr. K. M. Chong of Counsel, represented the appellant having submitted five additional grounds conviction.

4. The first ground was that there was an irregularity in the proceedings in that:-

(a)    The learned   magistrate erred in law in admitting the evidence of P.W.1's belief as to what the Appellant meant by '...it would better to have an older woman';

(b)    The learned magistrate presistently threathened P.W.3 (Wong Yin Ping) whilst she was being cross-examined by Counsel for the Appellant;

(c)     The learned magistrate presistently asked the Appellant hostile questions

5. Furthermore the magistrate's conduct of the case was criticised and it was suggested that he was rendered   incapable of forming a just and fair view on the evidence.

6. It was contended that in all the circumstances the case the conviction was unsafe and unsatisfactory.

7. Mr Chong for the appellant attacked the magistrate's conduct with reference to the record particularly with regard to Grounds 1(b) and (c).

8. Mr. Wilson for the Crown conceded that^: it appears from the record of the proceedings below that the magistrate had made up his mind before the conclusion of the case and asked that the conviction be set aside and that there should be a retrial.

9. Mr. Chong argued against a retrial on the basis that his client has already served neatly months of his sentence at detention in a Training Centre and that a retrial followed by the same sentence would effectively mean that he would serve two sentences for the same of fence. He pointed out that there was a statutory minimum period of detention for 6 months under the training Centres Ordinance with the balance being within the discretion of the Commissioner of Prisons.

10. Having heard Mr. Chong's submission Mr. Wilson conceded that he could not in all fairness ask for a retrial and he withdrew the application.

In all the circumstances, having examined the record of proceedings I reluctantly allowed this appeal and decided that it was not in the interests of justice that there should be a retrial.

Representation:

Mr M. Wilson, S.C.C., for Crown.

Mr K.M. Chong (Knight & Ho) for the Appellant Chan Cheuk Wah.