HKSAR v. Li Wai Ying

HCMA 119/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 119 OF 2012

(ON APPEAL FROM TMS NO 12420 OF 2011)

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial of an offence of careless driving and was fined $3,500, disqualified from driving for 5 months and ordered to attend a driving improvement course at her own costs. She now appeals against the conviction and sentence.

Grounds of Appeal

2.One of the grounds of appeal against conviction is that the magistrate “entered the arena” so frequently and to such an extraordinary extent as to lead a fair-minded and informed observer to conclude that the appellant’s trial was unfair by reason of the magistrate taking over the conduct of the case from the prosecution.

Concession by the Respondent

3.The respondent concedes on this ground and, in the view of the court, rightly and fairly so, because the magistrate conducted virtually the whole of the examination-in-chief of the first and second prosecution witnesses.

4.After the court allows the appeal against conviction the respondent asks for an order for re-trial which is opposed by the appellant.

5.In the case of R v Holgate [1996] HKLY 437, Mortimer JA summarised the factors the court should consider in ordering a re-trial:

“On an application for re-trial, it is necessary for the court to consider all the surrounding circumstances. These include the seriousness of the offence, the history of the proceedings, the evidence for prosecution and defence, the complexity or otherwise of the trial, the reasons for the success of the appeal, the lapse of time since the alleged offence and since the trial, and the length of sentence which the appellant may have served, It is necessary then to weigh the public interest in ensuring that those guilty of serious crimes are brought to justice and punished against the effects of putting a successful appellant through the ordeal of a further trial. Obviously, if after all these matters have been considered, no reasonable prospect of conviction after a new trial is demonstrated, one would not be ordered.”

6.Although the offence in question is only careless driving it is of a serious nature.  There is evidence from a prosecution witness that while she was at a metered parking space, indicating to the appellant who intended to park her car there that her husband was driving over to park at the space, the appellant despite being fully aware of her presence drove her car in such a manner as to rolled over part of her shoes.

7.Bearing in mind the reason of the success of the appeal and the serious nature of the offence the court is of the view that it is in the interests of justice that an order for re-trial be made.

Conclusion

8.The appeal against conviction is allowed and the conviction and sentence are set aside.  The court makes an order for re-trial of the case before another magistrate.

9.Costs of the appeal be to the appellant to be taxed if not agreed.

Ms Peggy Leung SPP, of Department of Justice, for the respondent

Mr Alan Lo, instructed by T K Tsui & Co, for the appellant