Yau Koon-yau v. The Queen

CACC001048/1982

Headnote

Disclosure of defendant's record to magistrate in support of opposition to hail - same magistrate subsequently hearing matter - undesirable but not fatal to conviction - same principles apply to Magistrate as to District Judge.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1048 OF 1982

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Between

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Coram: Hon. Penlington J. in Court

Date: 6 December 1982

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JUDGMENT

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1. The appellant appeals against his conviction on three charges of blackmail, a fourth charge having been dismissed.

2. There is only one ground of appeal here which causes me any concern. On the 21st of June 1982 when the matter first came before the magistrate the accused Appellant's previous criminal record was produced to the magistrate by the Crown in opposition to his application for bail. Bail was in fact refused.

3. The same magistrate heard the case when it came on for hearing on the 14th of October.

4. This question was dealt with by the Full Court in Yu Tit-shing and others v. R. (Crim. App. 695/71). There the District Judge was quite clearly well aware that the accused had a record because of his having heard the application for bail. The Full Court (Huggins J., as he then was) said

"In our view there is no substance in this ground of appeal. It not uncommonly happens that in the course of a trial inadmissible evidence is put before the court. Where this happens the judge has to decide whether it is right to proceed with the trial or whether a fresh trial must be ordered. It has commonly been thought that different considerations apply when there is a trial by jury and when there is a trial by a professional judge. Whether that be right or not, in the present case the learned judge was satisfied that he could proceed without bias and we see no reason to think that he wrongly exercised his discretion. We say only that it is, as no doubt the learned judge in this case realised, desirable where it can conveniently be arranged that a judge who has been informed of a previous criminal record on an application for bail should not try the case subsequently. However, we think that the mere fact that a judge has heard an application for bail in such circumstances is not an absolute bar to his trying the case."

That was an appeal from a District Judge. I do not feel that any different considerations apply when the appeal is from a magistrate. Both are professionals. I am also satisfied that the same considerations apply when a matter such as this is considered by a Judge of the High Court as by the Court of Appeal. (Lam Wai-kuen v.R. Crim. App. 326 of 1973).

5. On reading the record it seems to me that the magistrate has in no way allowed himself to be influenced by that even if he still remembered some four months later; he did dismiss one of the charges. Having read the evidence I think that his conclusion that the three charges had been proved is one which is inescapable. The appeal is dismissed.

Representation:

S.R. Mason-Parker C.C. for Crown.

Appellant in person.