WONG WAI FAT v. THE QUEEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 466 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded not guilty in the Magistrates Court to 13 charges of offences under the Theft Ordinance. The first charge alleged the offence of theft under that Ordinance and the other 12 alleged the offence of obtaining property by deception. At the end of the trial the magistrate acquitted the appellant of all the offences of obtaining property by deception, but convicted him on the charge of theft.

2. The charge of theft alleged that he had, on the 31st December 1983, stolen a motor vehicle. He has put forward a number of grounds in support of his appeal. One ground was that the magistrate adopted "the wrong test in ruling that he would not be prejudiced against the appellant by reason of his having tried and convicted him before for illegal road-racing, whereas the test be applied was whether or not justice could be seen to be done without any fear of prejudice being felt by the person facing his trial.

3. The appellant first appeared in the Magistrates Court in January 1985. During discussions about the date for trial it appears to have been mentioned that it would not be desirable for the case to be heard by the learned Magistrate who ultimately did hear it because that Magistrate had previously dealt with the appellant in relation to an offence which has been referred to as "road-racing". At that time, at the request of the Defence, the hearing was set down for a period after the end of March of this year because the Defence alleged that a material witness would not be available until then, and the counsel whom the appellant had briefed to appear for him at the trial would not be available until then. It appears that the case was set down for hearing in Court No. 8 of that particular Magistracy, but on the day of trial the case was, for reasons not disclosed on the record, transferred to Court No. 9. Before the hearing began, counsel who then appeared for the appellant raised the matter of the appellant's objections to the learned Magistrate hearing the case with the learned Magistrate in Chambers. Thereafter the Magistrate, according to the record, raised the matter in open court. He then said:

"Do not recognise name or appearance of defendant. I have dealt most most road-racing cases in this area in the last two years. I bring no prejudice or preconceived ideas to the case, and I so declare myself to be not prejudiced."

4. At the conclusion of the hearing which lasted several days the Magistrate gave a considered decision and extensive reasons for his decision. His statement of findings are also extensive, covering some 7 typewritten pages of the record. Both the decision delivered immediately at the conclusion of the hearing and the statement of findings indicate a professional, judicial approach on the part of the learned Magistrate in evaluating the evidence which was put before him and an adequate knowledge of the law to be applied in reaching a verdict.

5. It has been said by the Court of Appeal in Yu Tit-shing v. The Queen ^(1), that it is desirable, where it can conveniently be arranged, that a judge who has knowledge of a criminal record on the part of an accused who appeared before him should not try the case. But the Court goes on to say that if, however, a judge does proceed to hear a case with such knowledge, justice, in effect, has still been seen to be done. Therefore it appears that the mere fact that a magistrate or judge may have had a particular defendant before him before is no bar to that judge or magistrate proceeding to hear another case and do justice according to lair in the second case. Indeed, if that were not so it would be impossible for any one-man magistracy system ever to work. In this case it appears that an attempt was made at the Magistracy concerned to have the case heard by another magistrate. But it also appears that at the particular time in which it was convenient, at least for the Defence to be heard, that overall convenience dictated that the case be heard by the magistrate who did in fact hear it. Therefore it appears that the convenience of the magistracy at the particular time did not allow of this case being heard by anyone other than the particular Magistrate who did hear it. The proceedings before the learned Magistrate leave no doubt in my mind that he was not prejudiced in any way as regards this appellant, that the appellant received a full and fair hearing before the learned Magistrate and a proper judicial approach to deciding the verdict. The offence of "road-racing" was not the subject matter of any of the charges at this particular trial, and the matter of road-racing came into the evidence in a peripheral way. There was no mention of road-racing in the prosecution evidence but the Defence found it necessary to refer to road-racing in order to explain some of the circumstances which applied to the charges in respect of which the appellant was found not guilty. The references to road-racing could not possibly have affected the Magistrate's decision in relation to the charge of theft. In the result, I am of the view that there is no merit in this ground of appeal.

6. The other grounds relate to the evidence adduced in support of the charge on which the appellant was convicted. This evidence consisted of circumstantial evidence. One substantial piece of circumstantial evidence was the evidence that the appellant was in possession of the stolen car some three weeks after it had been stolen. This was a car which not only had been stolen but since the theft had been altered in substantial ways so as to be unrecognizable as the vehicle which it originally was except by an owner who was aware of some of the idiosyncrasies of the vehicle and to a manufacturer who had access to certain identification features which would not generally be known to someone who was not an expert in the motor vehicle manufacturing field. There were a number of other circumstances listed at length in the Magistrate's statement of findings which, taken with the appellant's recent possession of that stolen vehicle, which pointed to one conclusion and one conclusion only, namely that the appellant either stole that vehicle himself or was a party in law to the commission of the offence of stealing it. There was no reasonable explanation of the concatenation of all those circumstances other than that he was guilty of the theft of that vehicle. So I do not see how any reasonable magistrate could have come to a conclusion other than the conclusion to which the learned Magistrate in this case did come. The case against the appellant was overwhelming. I therefore see no substance at all in the other grounds of appeal. The result is that the appeal must be dismissed.

(1)    Criminal Appeal No. 695 of 1971 (unreported)