Man Kwok-hung v. The Queen

CACC000523/1976

Coram: Briggs, C.J.

Date of Judgment: 19th June, 1976.

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JUDGMENT

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1. The appellant in this case was found guilty of one offence of smoking dangerous drugs and sentenced to six months' imprisonment. The grounds of appeal are that the conviction is unsafe and unsatisfactory.

2. It is the duty of a magistrate trying a case to make a note of the evidence of the case. This was done in this particular case but the record is totally illegible. In addition, there is no statement of findings of facts and reasons for the decision under section 114(b) of the Magistrates Ordinance. I note that the reason for this was that the magistrate had gone on leave soon after he had tried this case. But that is no excuse for leaving a totally illegible record.

3. Miss Fi-lan Chua, who appeared on behalf of the appellant, drew the court's attention to the case, amongst others, of Le Caer ⁽¹⁾ in which Widgery, L.C.J. quoted from the case of Elliott ⁽²⁾ the following observation of Channell, J.:

"The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed on appeal, nor the existence of a proper note a condition precedent to a good trial. Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material."

4. The trouble with this case is that neither counsel nor the court has been able to find out what happened in the court below at all except that the appellant pleaded not guilty to the offence of smoking dangerous drugs. And his co-accused pleaded guilty to the same offence.

5. Miss Beeson, who appeared for the Crown, suggested that a new trial should be ordered. The learned magistrate who tried the case will not return to Hong Kong until the end of October, by which time the sentence of the appellant will have been served.

6. The appellant has served two months of his term of imprisonment already and this case cannot be said to be in the class of the most serious of offences.

7. In the circumstances, I think the correct order is to allow the appeal, quash the conviction and set aside the sentence. I so order and the appellant is to be set free.

Representation:

Miss Fi-Lan Chua (D.L.A.) for appellant.

Miss Beeson for crown.

(1) (1972) 56 C.A.R. 727 @ 730.

(2) (1909) 2 Cr.App.R. 171