R. v. WONG WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.517 OF 1996

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J U D G M E N T

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1. The appellant was convicted of loitering with intent. He now appeals against conviction only.

2. The prosecution's case is this. At the material time, the appellant was noticed by two officers to be peering into one vehicle after another which were parked by the side of the street and having acted suspiciously. When he was approached, the appellant tried to run away but was later stopped. He was then asked why he was there and, according to the police officers, he admitted that he intended to steal things inside the cars.

3. The learned Magistrate accepted the evidence of the police officers, rejected the appellant's and convicted him.

4. The complaint before me was that the learned Magistrate should have exercised his discretion and allowed an adjournment to enable the appellant to seek legal representation. Before me, there is an affirmation by the appellant as to what happened on that day. It seems clear from the record that the case was adjourned from December 1995 to 15th March 1996. The appellant said to the court "I am ready to proceed. I didn't want to apply for an adjournment because I forgot to instruct my lawyer." The court then stood the case down and resumed at 10 o'clock.

5. It appears from the affirmation of the appellant that what happened was that after the first appearance in court, he got a job and moved address. During the period of adjournment, between December and March, no staff of the Duty Lawyer Scheme contacted him and he did not receive any letter from the Scheme. On the day of trial, at 8:45 am, that is before the Magistrate came out, he approached the officer of the Duty Lawyer Scheme, requested the service and was then told that they could not represent him because he had not contacted them before. That was why he went into court without legal representation. Counsel submitted that the learned Magistrate should have made enquiries before he exercised his discretion, that this was a case which involved the evidence of the officers as against the evidence of the appellant, that it required careful cross-examination but the appellant was not equipped to do that. He also submitted that the Magistrate should not have scarified justice for convenience. In effect, he submitted that the appellant had been deprived of his common law right to be legally represented.

6. I think the principle I accept in this sort of cases was set out by Hooper, J. in the case of R. v. Ho Tak Mui [1991] 2 HKLR 637 where he said :

"Whether or not to grant an application to adjourn is within the discretion of the court. The overriding consideration is whether justice has been done to the unrepresented defendant."

In the present case, I accept that the enquiries made by the learned Magistrate was rather short. It should have made more enquiries into why the appellant did not have representation. But faced with the answer "I forgot to instruct my lawyer" I am not surprised that the Magistrate, as a reasonable Magistrate, would not have taken that seriously and would have every reason to believe that that was an excuse to delay the matter. But be that as it may, during the course of the trial, the learned Magistrate had explained the procedure to the appellant at every stage. He assisted the appellant in the cross-examination of the officers. The appellant had given evidence with the assistance of the court. Looking at the evidence of the case before the learned Magistrate, I cannot say that the appellant did not have a fair trial. The evidence is overwhelming. Even if, on the submission of the Crown, the test is whether there was a miscarriage of justice, I do not think that there is any. This is a case based on factual dispute. Of course, it requires some technique of cross-examination. But the Magistrate did assist him. He went to the witness-box and told the Magistrate what had happened. The Magistrate assessed the evidence before him and came to a conclusion which is correct based on the evidence . I do not think there is any unfair trial for the appellant. In the circumstances, I would dismiss the appeal.