HKSAR v. Sunwar Lokraj

HCMA1145/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1145 OF 2004

(ON APPEAL FROM TWCC 2349 OF 2004)

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BETWEEN

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Before : Hon Gall J in Court

Date of Hearing : 9 March 2005

Date of Judgment : 9 March 2005

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J U D G M E N T

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1.The appellant was, on 4 November 2004, convicted of three counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210, and was on the same date sentenced to three months’ imprisonment in respect of each charge, to be served concurrently.  He now appeals those convictions.

2.The charges each involved allegations that the appellant had stolen a motorcar from the container terminal at Tsing Yi Island by removing them from those premises when he had no right to do so.  The offences were said to have each taken place each on the same day.

3.The evidence given by the prosecution and the defence runs to some length and for the purposes of this appeal is unimportant.  The matter with which I must deal and upon which Mr Cheung for the respondent has very properly conceded that I must allow the appeal is this : part way through the evidence-in-chief of the appellant, the magistrate said this to the counsel for the appellant :

“	COURT:	… Mr Ross.  I don’t believe a word of this evidence.  I’ll tell you that straight out.  He is talking errant nonsense, and he is wasting a lot of court time doing it.
	(COUNSEL):	Well, he’s got to give – finish his accounts.
	COURT:	Well, it just doesn’t make the slightest bit of sense.  Do I really have to sit here and listen to this rubbish?
	(COUNSEL):	I think so, Sir.  It’s in the box now.
	COURT:	It’s just insulting.  Carry on.”

4.After this passage the appellant carried on at considerable length in his evidence-in-chief and then was cross-examined for a short period of time.  Not surprisingly in his Statement of Findings, the magistrate did not believe the appellant.

5.It is a dangerous practice for a magistrate to express a view as to the evidence of an accused before that evidence is closed.  It is not surprising that this appellant came before me on the basis that the magistrate had a bias against him and did not properly approach his evidence.

6.Mr Cheung bases his acceptance that he must concede this appeal on the case of R. v. Lee Chee Cheung [1987] HKLR 392 where the then Chief Justice, Sir Denys Roberts said at 394 :

“No doubt the Magistrate was acting from the best of motives in seeking to give an indication to the defence of the way his mind was working, with a view perhaps to saving the time and expense which might be involved by calling witnesses who could have no effect on the result.

This is, however, a dangerous practice for a Magistrate to adopt and one that must be discouraged.  The danger is that defendants are likely to feel, even if there is no justification for such a belief, that they have not had a fair trial, if a Magistrate expresses a view as to the worth of the defence before it is closed.”

7.This appeal is allowed.  I have before me an application by Mr Cheung to order a re-trial.  In all the circumstances, I consider that appropriate and order this matter be retried.

Mr W.S. Cheung, DPGC of Department of Justice, for HKSAR

Appellant in person