Lee Hung Fai v. The Queen
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CACC000890/1980
Coram: Barker, J. Date of Judgment: 3rd December, 1980. ----------------- JUDGMENT ----------------- 1. In this case the appellant appeals against a determination made by Mr. Grover that the charge of careless driving which had been brought against him should be retried by a magistrate other than the magistrate who had initially tried the case - that other magistrate having in fact acquitted the appellant. What happened at the first trial was that the prosecution who were not legally represented and the defendant who was legally represented agreed a statement of facts described as brief facts of the case as amended together with a sketch plan of the accident scene and Mr. Man who appeared for the defendant said "I confirm the amended facts and sketch plan have been agreed." As Mr. Justice Silke said in the case of Lai Chiu Hung & Lai Sai Hang v. The Queen(1) paper trials, especially where the prosecutor is unqualified, are to be deprecated. I fully concur with that observation. There is of course power in the Ordinance for the prosecution or the defence to admit facts, but this does not mean all the facts of the prosecution case. What happened in this case was that the defendant went into the witness box and it became apparent that during the course of his evidence he did not agree with the facts and in all the circumstances the magistrate was not satisfied saying "there is a reasonable doubt on the evidence that I have heard". The trouble was that he had not heard sufficient evidence because the prosecution had been led by the defence into the view that there was going to be no dispute on the agreed facts. What Mr. Chan for the appellant said is "Well that being so, the prosecution could at the end of the defence case have called rebutting evidence or they could have applied at that stage for a retrial or indeed the magistrate of his own motion could have ordered a retrial" and none of those things happened and therefore said Mr. Chan "although the learned magistrate who reviewed the matter undoubtedly had the power to order a retrial he should not in his discretion have exercised it and ordered one" and he points to the fact that in Lai's case to which I have adverted, Mr. Justice Silke did not, in all the circumstances of that case, send the matter back for a retrial. However I am informed by Mr. Egan and I of course accept it that in the case before Mr. Justice Silke the 2nd appellant who was charged with a very serious case of blackmail, had in fact spent seven and half week in custody and in my judgment that was a fact which in all probability weighed heavily on Mr. Justice Silke's mind. 2. Here the charge against the appellant is not a serious one at all; it is merely one of careless driving and the only matter in which the defendant has been prejudiced is that he himself has incurred costs, not only at the trial but also at the application for review and today and said Mr. Chan "bearing in mind the fact that it is such a minor charge wherein if he were to be convicted the fine would be a comparatively minor one that it would be unjust that the appellant should be put to this further expense". Matters of this kind are nicely balanced, but in all the circumstances of the case I have come to the conclusion that it would not be right to send this man back for retrial and accordingly this appeal is allowed. Representation: Peter Chan (Hastings & Co.) for appellant Kelvin Egan for Crown/Respondent (1) (1979) C.A. 774 |