THE QUEEN v. CHAN CHUN KAM

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 146 OF 1996

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J U D G M E N T

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1. This was an appeal against conviction for possession of a dangerous drug. There was only one point on the appeal and that is the refusal of the learned Magistrate to grant the Appellant an adjournment to enlist the aid of counsel for his trial. The trial was fixed for 18th December 1995. The Appellant was ill that day and unable to attend court. A colleague of the Appellant informed the court and produced a doctor's certificate and the trial was adjourned to the following day. On that day the Appellant attended court and applied for an adjournment in order to instruct a private lawyer. The Magistrate refused his application on the grounds that in September 1995, the last occasion when the Appellant was due to attend court, he had not appeared. However, this turned out to be a mistake. The original date of the trial was in fact postponed due to no fault of the Appellant. He had a lawyer arranged for the 18th December but he was ill that day and unable to attend and his counsel was unable to take the case the following day, the 19th December. In all the circumstances therefore it appeared as if the learned Magistrate had been unfair to the Appellant in this case, depriving him of his right to legal representation. This was a material irregularity in the course of the trial and the appeal had to be allowed on that basis.

2. I did consider ordering a retrial but as the Appellant had already served a substantial part of his sentence, I thought it unfair to do so.