Chan Wing-fuk v. The Queen
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CACC000670/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 670 OF 1979 -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 1 August 1979 ----------------- JUDGMENT ----------------- 1. The appellant, CHAN Wing-fuk, was on the 21st of May 1979 convicted of careless driving and fined $400 and disqualified from holding a driving licence for a period of six months. The appellant now appeals both against conviction and sentence. The learned magistrate did not record in the Minute of Proceedings which he kept whether the witnesses had been sworn or affirmed and he did not make any record as to whether the appellant had been told of his right to give evidence or to remain silent. Section 34 of the Magistrates Ordinance, which requires that a Minute of Proceedings be kept, does not place any duty upon a magistrate to record such matters. In earlier appeals it has been remarked that it is desirable that such matters be recorded particularly where defendants are unrepresented and I respectfully concur with that view. 2. The importance, in the instant case, of the failure to record whether or not the appellant had been told of his right either to give evidence or to remain silent is, in the submission of Mr. Llewellyn, who appears for the appellant, that the evidence of the appellant was such as to supply an otherwise irremediable defect in the prosecution case. Mr. Llewellyn submits that there was, at the close of the prosecution case, no satisfactory evidence identifying the appellant as the driver of the vehicle which had been involved in the incident. This was so because P.C. Leung, who was the only witness to identify the appellant, stated in his evidence that the incident which he investigated occurred on the 20th October 1978 and not the 12th October as charged. In such circumstances, Mr. Llewellyn submits that the Court should be uneasy as to the propriety of the conviction and should order that it be quashed. 3. However, the learned magistrate in his Statement of Findings expressly states:
I am quite satisfied to accept this finding. There was, therefore, a clear case to answer at the conclusion of the prosecution evidence. I am further satisfied that the finding of guilt was a perfectly proper one upon the evidence as the learned magistrate eventually had it. I do not consider that the failure of a professional magistrate in such circumstances to record that a defendant was told of his right to remain silent warrants the interference of an appeal court in the finding of guilt. The appeal will therefore be dismissed. 4. The appellant also appeals against sentence in so far as it involves an order that his licence be suspend d for a period of six months. The learned magistrate did not make any note in his Minute of Proceedings as to whether the record of the appellant had been placed before him although it does appear from his Statement of Findings that this must have been done. At the close of the evidence he simply noted:
Again it is not required by Section 34 of the Magistrates Ordinance that a magistrate must record that the criminal record of the accused has been produced to him. However this is customarily done and it is desirable that a note be made indicating at least the criminal record number and the admission by the accused that the record is correct. In his Statement of Findings the learned magistrate noted:
Unfortunately the record of the appellant, for whatever reason, was not included in the appeal papers and Mr. Murphy, who appears for the Crown, does not have a copy of that record and is unable to explain how this record came to be omitted from the appeal papers. Mr. Llewellyn conceded that the appellant had a previous conviction for dangerous driving about 9 months ago but stated that there was no collision or injury and that the appellant was disqualified upon this charge for one month. He also indicated that the appellant had been convicted about two years ago of careless driving but that no disqualification had been imposed in relation to that offence. Mr. Murphy accepted that this submission correctly stated the record of the appellant. Mr. Llewellyn submitted that disqualification for a period of six months was unduly harsh given that the appellant was a professional driver. He did concede that some period of disqualification might be justified. I am mindful of the fact that the learned magistrate took into account the hardship that would be caused to the appellant and that he gave consideration to the appellant's record before imposing the sentence of disqualification, however, I consider that the disqualification for a period of six months was excessive. I am satisfied that three months disqualification is a proper period and I order that the sentence be varied accordingly.
Representation: Llewellyn of Hampton Winter & Glynn for Appellant Murphy, Crown Counsel, for Respondent |