Tse Hung v. The Queen

CACC000777/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 777 OF 1975

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Coram: Briggs, C.J.

Date of Judgment: 27th September, 1975.

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JUDGMENT

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1. This is an appeal against a fine of $150 passed by a magistrate for the offence of careless driving.

2. When the case came on before the magistrate on July 8th, 1975 the appellant, then the accused, was present and pleaded not guilty. All the magistrates did on that occasion was to fix a date of hearing, i.e. August 19th, 1975.

3. When the case came up on that date the appellant was not present and so the magistrate heard the case ex parte and convicted the appellant in his absence.

4. The magistrate purported to act under section 18 (1) of the Magistrates Ordinance which reads as follows:-

"18. (1) If, at the time and place appointed in and by the summons aforesaid for hearing and determining the complaint or information as aforesaid, the defendant against whom the same has been made or laid does not appear when called, the police officer or officer who has served him with the summons in that behalf shall then declare upon oath in what manner he served the summons, and if it appears, to the satisfaction of the magistrate, that he duly served the summons, the magistrate may proceed to hear and determine the case in the absence of the defendant, or the magistrate, on the non-appearance of the defendant as aforesaid, may issue his warrant in manner hereinbefore directed, and shall adjourn the hearing of the complaint or information until the defendant is apprehended; and when the defendant is afterwards apprehended under the warrant, he shall be brought before a magistrate, who shall thereupon either by his warrant commit the defendant to prison or some other place of security or, if he thinks fit, verbally to the custody of the police officer who has apprehended him or to such other safe custody as he may deem fit, and order the defendant to be brought up at a certain time and place before a magistrate, of which said order the complainant or informant shall have due notice."

It is clear from the record that the appellant did appear in answer to the summons on the first occasion. What I think happened on the second occasion was that the appellant neglected to turn up on the proper date. But he had answered the summons. It is therefore section 18(3) that should have been followed. This subsection reads as follows:-

"If the defendant does not afterwards appear at the time and place mentioned in the recognizance, the magistrate then present shall certify on the back of the recognizance the non-appearance of the defendant, and may declare the same to be forfeited in manner hereinafter provided, and may also issue his warrant for the apprehension of the defendant."

5. The magistrate could, under that subsection, issue a warrant for his arrest.

6. This is a stale case. The accident occurred on January 11th, 1975, and involved an ambulance. The damage was very slight. The appellant told me that he was not to blame for the accident as he had the right of way.

7. In view of the trivial nature of the case, and the trouble that would be caused to all parties if an order for a retrial were to be made, I think the best thing to do is to allow the appeal and quash the conviction. The appellant told the court that he had not paid the fine so no consequential order is necessary.

Representation:

Appellant in person

Sharwood, c.c. for Crown/Respondent.