THE QUEEN v. TRAN VAN NGOC

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.1130 of 1995

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J U D G M E N T

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1. This was an appeal against a conviction for attempted theft. The short point on the appeal was that the appellant was refused an adjournment by the learned Magistrate in order that he could call a defence offence witness. The learned Magistrate said this about the matter :

"At the start of the trial the accused made an application for an adjournment so that he might call D1 to give evidence for him. I refused the application, but I should say a little more about that. The alleged offence was committed on the 23rd January 1995. Both accused made their first appearance at court on the 25th January when D1 pleaded guilty. The Principal Magistrate fixed the 17th February as the date for this defendant's trial. On that day the trial was re-fixed because Miss Wong the trial magistrate had previously sentenced D1 on his guilty plea and an application was made to her on the defendant's behalf that another magistrate should try this case because D1 was to be called on behalf of the accused. She appears to have had sympathy for that application because she made enquiries to see if another magistrate was available on that day. There was a prospect that the trial would start at 3.30pm but by then the defendant preferred to have his case adjourned and so the case went off and has refixed for the 24th May. The case then came on before Mr Brazier when he adjourned it because the lady who was the alleged intended victim was in China. So the case went off to the 20th October before me. That made for two abortive trial dates. I should say that no both of those occasions D1 had been brought to Court to be a witness for the Defendant. On those first two trial dates D1's presence had been secured by a body order applied for by the Duty Lawyer Scheme who have at all times appeared for the defendant. They also applied for an obtained a body order for the 20th October. D1 had since the 8th February been serving a sentence in the Drug Addiction Treatment Centre. On the 12th October 1995 the defence applied to me for a witness summons to secure the attendance of D1, he by then having been released from his sentence. That witness summons had not been served on the co-accused resulting in his non-attendance. As my Note of the Trial shows I was anxious to hold the trial date there having been two adjournments already. I had other matters listed which I could get on with, so I indicated that I would give the Defendant the opportunity of going to fetch his witness and I would start on his return. The defendant told me that he did not know where the witness worked, indicating that he did not consider his chances of securing his attendance as very high. In answer to a direct question from me he said that he had done nothing to get him to court save for the application for the witness summons. As I observed at the time I did not think it was good enough to merely apply for a witness summons 8 days before the trial and when that had not been served to come to court and expect an adjournment. I refused the application. It behoved the Defendant to be attentive to his defence. He had provided the court with an address for service of the witness summons so he knew where the witness resided yet he had taken no steps of his own to try and contact the witness personally to tell him of the trial and to ask him to come. Had more effort been shown by the Defendant to do that, or to follow the progress of the witness's sentence in the Drug Addiction Treatment Centre so that an application for a witness summons could have been made more than 8 days before the trial following his release I might have had more sympathy for the application. In the circumstances I considered that it was the Defendant's inactivity in this regard which had resulted in the witness's non-attendance. This was a stale case. In all the circumstances I considered it right that the trial should go on."

2. I was advised at the appeal that the conduct of the Appellant's case was at all times the responsibility of the Duty Lawyer Scheme. That included securing the attendance of the witness. It was they who issued the witness summons 8 days before the trial. The summons was returned by the police who were unable to serve the witness, as he was reported not to be living at the address given. No contact was made with the Appellant for his assistance.

3. It would, therefore appear that the learned Magistrate's comments about the Appellant's failure to do all that was necessary to secure the attendance of his witness were, in all the circumstances, unfair. Perhaps had the learned Magistrate known the proper position, he might have had more sympathy for the application for an adjournment, and would not have proceeded with the trial in the absence of the defence witness. However, in all of the circumstances, I felt that I could do no other than allow this appeal. I considered the question of a re-trial but was advised that the appellant had already been in custody for some months in relation to this matter. I therefore considered that it would not be just to order a re-trial in this case.