THE QUEEN v. YU LAP WAI

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HEAD NOTES

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Right to legal representation in the magistrate's court.

IN THE SUPREME COURT OF HONG' KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 866 of 1986

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of theft and sentenced to two years imprisonment. He is appealing against both conviction and sentence.

2. The victim was a Japanese tourist, Tadamas Kumakura, who was walking along Nathan Road with his friend, Ziryo Shimomura, at 8.30 a.m. one Saturday morning, when he was nearly run over by a taxi. He jumped out of the way, but then realised that he had lost his wallet. He shouted out and saw a Chinese woman pointing to a stationary taxi -not the one that had nearly hit him - but could not understand what she was saying.

3. Mr. Kumakura and his friend managed to prevent the taxi driving away and the former opened the front nearside door. In the back they saw two men, one of whom they identified as the appellant. The next thing that happened was that Mr.Kumakura's wallet was thrown out of the taxi and the two men in the back seat got out and ran away.

4. At that moment Mr. Lo Sai-wah, a USD foreman, and two colleagues, all in uniform, happened to be passing. Mr. Lo saw a man throw a wallet out of the taxi. Two men then got out of the back of the taxi and ran off. Mr. Lo and his colleagues, realising what had happened, chased the two men and eventually caught the appellant in Saigon Street, about a block away. He says the appellant was never out of his sight during the chase, except presumably when he turned the corner from Pak Hoi Street into Temple Street. Mr. Lo says that the appellant was sitting in the seat from which the wallet was thrown.

5. The two Japanese identified the appellant; the police were called and he was arrested. Meanwhile Mr. Kumakura had recovered his wallet and identified it.

6. They all went to the police station and thence to South Kowloon Magistracy. It was now about 11 a.m. The appellant was brought before the magistrate and pleaded not guilty. Having been told that the victim and his friend were leaving Hong Kong the next day, the magistrate proceeded forthwith to hear the evidence.

7. Mr. Kumakura was the first witness. When he had completed his evidence in chief, the magistrate told the appellant that he would help him to cross-examine and askcd him what was his defence. The appellant told him that he was feeling unwell and wanted to see counsel.

8. The magistrate explained that the witness was leaving Hong Kong next day and the case must continue. The appellant repeated that he was not feeling well, but the magistrate considered he was shamming. He concluded that identity was likely to be the only issue in the case and thereupon asked the witness if he was sure that the appellant had been in the taxi. Mr. Kumakura said he was not mistaken.

9. Mr. Shimomura gave his evidence and the magistrate asked him the same question. The appellant was asked if there was anything he wished to put to either witness, but his reply was that it was very confusing. The case was then adjourned till the following week and the two tourists returned to Japan.

10. The appellant was now represented by a solicitor, Mr. Thomas Iu. Mr. Iu asked for the recall of the two Japanese witnesses. This was refused and Mr. Iu, feeling that he could be of no further assistance to the appellant, was allowed to withdraw.

11. The magistrate then offered the appellant a further adjournment to pursue the question of representation. The appellant however said he wanted the trial to proceed.

12. The final prosecution witness was Mr. Lo.  The magistrate invited the appellant to cross-examine and again said he would help him if he wished, but the appellant had no questions. Nor did he give evidence or call witnesses.

13. Not surprisingly the magistrate convicted. The appellant had 11 previous convictions and was senten ed to two years imprisonment.

14. The appellant is now represented by Mr. Michael Poll, of counsel, who submits that the magistrate's refusal to grant the appellant time and facilities to be represented is fatal to the conviction. He concedes that a speedy deliberation was necessary, but points out that, even at 11 a.m. on a Saturday morning, legal advice would have been available in the magistracy building. I imagine he is referring to the Law Society's Duty Lawyer Schemes.

15. Mr. Kelly, for the Crown, does not concede that there is an inherent right to legal representation in the magistrates court. He submits that in this case there was no prejudice to the appellant and justice was done. That he says is the test.

16. Section 16(1) of the Magistrates Ordinance provides:

"The party against whom the complaint is made or the information laid shall be admitted (sic) to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf."

17. Counsel were unable to assist me regarding the position in other jurisdictions. Stones Justices Manual makes no reference to a right to legal representation. Section 196 of the Nyasaland Criminal Procedure Code provides:

"Any person accused of an offence before any criminal court, or against whom proceedings are instituted under this Code in any such court, may of right be defended by a legal practitioner."

18. There is an almost identical section in the Kenya Criminal Procedure Code.

19. In my judgment a defendant in Hong Kong also has the right to be represented, and to an adjournment, if it is necessary to secure the attendance of counsel. Nevertheless I agree with Mr. Kelly that the overriding consideration is whether justice has been done to the unrepresented defendant.

20. Was there any prejudice in this particular case? Had the prosecution case depended on the evidence of the two Japanese tourists, I think there might have been. However, the evidence of Mr. Lo was really more critical. The only possible issue was identity. Mr. Lo had no reason to lie about the matter. He saw the wallet being thrown out of the seat occupied by the appellant and he subsequently caught the appellant. As the magistrate correctly observed, it matters not if Mr. Lo is mistaken about which seat it came from, since both men in the back of the taxi were obviously accomplices.

21. Apart from the evidence concerning the loss of the wallet and its subsequent identification - which could scarcely have been challenged - the magistrate would have been entitled to convict on Mr. Lo's evidence alone.

22. As the appellant had an opportunity to seek representation before Mr. Lo gave his evidence, he suffered no prejudice. The strength of the prosecution case was overwhelming, it was unchallenged and no contrary evidence was given.

23. The appeal against conviction is dismissed.

24. The appellant is 39. He has 11 previous convictions, including 4 for theft and 4 for loitering.

25. As the magistrate says, this was a sophisticated and well-planned operation and almost identical to that leading to his last conviction in 1984. In that case, also, he claimed to be sick on the day of the trial and obtained an adjournment, but the tourist later returned to Hong Kong.

26. The appellant is an incorrigible thief and a menace to the public. He is unlikely to be deterred by long prison sentences, but, while he is incarcerated, he is prevented from preying upon tourists and others.

27. Nevertheless I think 2 years is too high a sentence for this offence. On the appellant's last conviction (CA No.262/84) Penlington J. said that the facts and the appellant's record called for a sentence of 12-15 months. As an act of mercy, he sentenced him to 9 months to allow his release in time for the birth of his child.

28. No such consideration applies now. I am prepared to reduce the sentence to 15 months and to that extent the appeal is allowed.