HKSAR v. CHAN YIN FUNG

HCMA1092/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.1092 OF 1999

(ON APPEAL FROM NKCC 5088 OF 1999)

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J U D G M E N T

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1. The appellant was convicted on 22 October 1999 of one charge of reckless driving, one charge of driving whilst disqualified, one charge of driving without insurance and one charge of driving with excess alcohol in his blood. He now appeals that conviction.

2. This morning Mr Delaney, for the appellant, had sought to amend the perfected grounds of appeal to add a new ground, it having come to his attention that the principal witness for the prosecution in the court below, whilst being known at that time to be a drug addict, had also a number of convictions for theft and dishonesty. These convictions were not revealed to the defence at the time of the trial and were material upon which the trial counsel would have cross-examined that witness, his credibility being a principal issue in the trial.

3. Mr Madigan, very fairly and properly conceded that this is a material irregularity and with that I agree. Therefore this appeal is allowed and the sentences are set aside.

4. Mr Madigan then applied for an order for a retrial which is opposed by Mr Delaney on the basis of there are inherent difficulties in the length of time which has past since the incident giving rise to the offences took place, difficulties which may be experienced by the appellant in locating a witness, and the nature of the evidence itself. Mr Madigan on the other hand argued that the length of time that has past is not so great that memories have faded and that the other issues are a matter for the trial magistrate.

5. This was a serious accident and the allegations against the appellant are also serious. It is in my view, in the interest of the public, that a re-trial be ordered and I so order.