The Queen v. Lai Chi Hung

HCMA000912/1983

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

Criminal Appeal No. 912 of 1983

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BETWEEN:

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Coram: de Basto J. in Court

Date of Judgment: 10th February, 1984.

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JUDGMENT

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1. On the 24th May, 1983 two police officers on motor cycles were instructed to investigate some youths who were allegedly bicycle racing in Kowloon Tong.  The Appellant was one of these youths - he was seventeen.

2. The Appellant was charged with, and convicted of, obstructing the police in the execution of their duty.

3. On the 3rd September, 1983 the Appellant caused to be filed specific grounds of appeal. However, during the hearing of the appeal only Ground 3 was relied on by the Appellant.

4. The main points relied on in Ground 3 were that the learned trial magistrate had demonstrated a lack of impartiality and had made up his mind to convict the Appellant before he had had an opportunity to give evidence or to call evidence on his behalf.

5. Before the grounds of appeal were filed, Mrs Susan Liang, the solicitor who represented the Appellant in the lower court, filed an affidavit stating that certain parts of the evidence, and comments by the magistrate, did not appear in the magistrate's record.   Mrs Liang exhibited her own notes in longhand (with a typewritten transcript) as well as the notes of her final address. She also exhibited the magistrate's typewritten record together with those portions, underlined in red, which she said were relevant and missing from the magistrate's record, and which derived from a written record made by her or from memory. That particular exhibit is marked "Exhibit 3".

6. When the parties first came before me on the 16th September, 1983 I drew counsel's attention to the case of PAU Wing-shing and The Queen (1970) H.K.L.R. at page 51. I adjourned the appeal for Mrs Liang's affidavit and exhibits to be referred to the trial magistrate.

7. The magistrate recorded his comments in a statement dated the 3rd October, 1983.

8. In his statement the learned magistrate said, inter alia:-

"I also told Mrs Liang that, having heard the chief witness's evidence and having ascertained that her client was of good character, I merely considered the accused's conduct foolish and pugnacious and that, whatever the result of the case, I would likely deal with the defendant by way of a Bind Over to be of good behaviour in the futures."

9. It was contended by counsel for the Appellant that it was manifest, even on the basis of the magistrate's comments alone, that the magistrate had made up his mind that the evidence of the first prosecution witness represented a true account of what had happened, without having heard the Appellant's evidence or that of his witness in respect of the same incident, and that this demonstrated that the magistrate had, before giving the Appellant an opportunity of being heard, wrongfully and prematurely come to a conclusion as to the guilt of the accused.

10. It was also contended that the fact that the magistrate indicated what order he intended to make, irrespective of the "result of the case", this having taken place even before the close of the Crown's case and any evidence adduced by the defence, demonstrated a lack of impartiality on the part of the magistrate.

11. A tribunal sitting in an appellate capacity should not lightly come to the conclusion that a magistrate's approach to a case lacked that dispassionate detachment which should distinguish the performance of the judicial function.

12. In Lai Chuk Ting and Others and The Queen (1978) H.K.L.R. p.402 the Court of Appeal stated:-

"Now there are, of course, two conflicting principles here. we should not too readily assume that a judge, and particularly a judge of this experience, would make up his mind finally before hearing the address of a defendant's counsel. However, with some reluctance, we have come to the conclusion that the other principle outweighs that, and that principle is that justice must manifestly be seen to be done, and it is possible that the defendant and his counsel would feel aggrieved and believe that the learned judge may not have given proper weight to the address which was made to him."

13. In my view there was a distinct possibility that the Appellant may have believed, not unreasonably, that the magistrate had prematurely made up his mind as to his guilt before he had been given an opportunity to state his version of the facts.  The verdict is unsatisfactory and unsafe and the appeal is allowed and the conviction quashed.

Representation:

Mrs A. Cabrelli, Crown Counsel for Crown.

Mr A.A. Souyave instructed by Messrs Susan Liang & Co. assigned by D.L.A. for the Appellant.