THE QUEEN v. FUNG KAM SANG

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 45 OF 1991

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BETWEEN

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J U D G M E N T

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Fuad, V.-P. :

1. The appellant, Fung Kam Sang, was convicted on 4th December 1990 by Mr. J.L. Saunders in the magistrates Court of careless driving. He was fined $500 and ordered to pay $250 costs. The first version of the grounds of appeal filed 8 days after the conviction on his behalf by the solicitors acting for him throughout, used the formula that the general grounds of appeal were that the conviction was against the weight of the evidence.

2. The appellant was represented at his trial by Mr. Alexander Lau and a perfected version of the grounds of appeal was filed on 20th March, signed by Mr. Lau himself, with the same solicitors on the record. In those grounds of appeal, it is stated that the magistrate erred by acting with undue haste in convicting the appellant without giving defence counsel an opportunity of making a closing speech; it could therefore be inferred that he had already made up his mind to convict the appellant. It is said that in view of the magistrate's "prejudiced attitude", the conviction was unsafe and unsatisfactory and ought to be quashed on the principle that justice must manifestly be seen to be done.

3. In support of this ground of appeal, Mr. Lau was good enough to swear an affidavit and in it he said, after giving the background:

"4.       At the close of defence case, I, as defence counsel was not given an opportunity to make a final address and thereupon the learned trial magistrate proceeded to deliver judgment and convicted the appellant accordingly. It was done so suddenly and abruptly that I could not avail myself of any opportunity of interceding on behalf of the defence."

4. Very properly, a copy of this affidavit was sent to the trial magistrate and he was invited to make his comments. He indicated (and this is not surprising) that he simply had no recollection whatever of what had occurred during that particular trial. A perusal of the record carefully kept by him certainly does hot indicate, as perhaps it might have done, that counsel was invited to make a closing address.

5. Of course, I accept every word that Mr. Lau has sworn, but I simply cannot believe that the appellant was prejudiced in any way. With all Mr. Lau's experience both on the bench and at the Bar, it seems to me that had he wished to address the magistrate he would have protested immediately and would then have been given every opportunity, by this experienced Magistrate, to do so. Mr. Lau's affidavit is silent on the question Whether he and thought it necessary, and was minded, in this simple, short, case to give a final address. In these circumstances, I am not persuaded that the conviction is either unsafe or unsatisfactory and I dismiss the appeal.