R. v. CHAN KAI MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 485 OF 1995

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J U D G M E N T

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1. The appellant was a witness in a criminal case and was summoned to appear at the trial in Court 6 at the San Po Kong Magistracy on 4th January, 1995. The case was subsequently transferred to Court 3 at 11:30 a.m. The court was informed that the appellant could not be found. Since he was the principal witness, the trial was adjourned to 15th March 1995. A warrant of arrest was issued after the learned magistrate was satisfied that the witness summons had been served on the appellant. The appellant on 15th March 1995 appeared before the learned magistrate to explain his absence. His explanation was he was in Court 6 on 4th January 1995 and waited until between 11 a.m. and 12 noon when he then left. He gave no further explanation. The learned magistrate fined the appellant $600 after he found there was no reasonable cause for his neglect to appear to give evidence. At a review application, the appellant did not explain his absence any further than repeating what he earlier told the learned magistrate. The order to pay fine remained in force.

2. The appellant now appealed against that order.

3. Mr. Chapman for the Crown indicated that the Crown would not oppose the appeal and he tendered before the court a memo from the police explaining the reason why the appellant was not there when he was called. Mr. Chapman submitted that the appellant did attend court on the day in question. Because of the adjournment of the case from one court to another during that day, the appellant mistook that the case was adjourned to another day. The police was satisfied that he was a credible witness and his default was a technical matter. The memo from the police indicated that the appellant arrived early in Court 6 and his attendance was recorded by the court clerk. He did not see the police officer concerned in the case because he waited inside the court while the officer waited outside the court. When the case was transferred to Court 3, the court clerk informed those parties outside the court of the transfer while the appellant who remained inside was not aware of it. He had the impression that it was adjourned to another day and he left. Mr. Chapman submitted that the appellant was not sufficiently articulate when he went before the learned magistrate and did not adequately put forward his explanation.

4. It is rather unfortunate that the appellant did not explain his mistake fully to the learned magistrate. If he had done so, there would have been reasonable cause for his neglect to remain in court since he left as a result of an honest belief albeit a mistaken one that the case was adjourned to another day. His experience throughout this incidence would adequately serve to remind him in future of the need to be more cautious when attending court as a witness. In the circumstances justice would have been served by allowing his appeal and setting aside the order of fine. Any sum paid is to be refunded to the appellant.