HKSAR v. Abenir Noel R.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 132 OF 1998

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J U D G M E N T

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1. The Appellant was convicted on 9th December 1997 on one charge of unlawful trafficking in dangerous drugs. At the same time, he pleaded guilty to a charge of simple possession of dangerous drugs. His appeal today is against conviction only, in relation to the trafficking charge.

2. At the trial the Appellant was unrepresented and this forms the background to one of the grounds of appeal. It was submitted that the Magistrate wrongly proceeded to try the Appellant in the absence of legal representation when Appellant stated he had applied for representation by the duty lawyer but had not been seen by him and when the Acting Principal Magistrate had, earlier that day, requested that the Appellant be seen by a representative of the Duty Lawyer Scheme. The second ground is that the Magistrate in the course of that trial wrongly failed to adjourn proceedings to enable the Appellant to produce medical certificates that Appellant claimed were relevant to the special issue. Further, it was submitted that the Magistrate, in assisting the Appellant to present his case, conducted that case on an irregular basis by failing to cross-examine witnesses; in failing to enquire of the Appellant whether he had further questions to ask of various witnesses; in failing to advise the Appellant of his right to make submissions on the special issue and in failing to give Appellant an opportunity to make submissions on the general issue.

3. The history of the case as set out by the Magistrate in his Statement of Findings, shows that the date of offence and Appellant's arrest was 12th April 1996. Appellant entered pleas of not guilty to both charges on 10th June 1996 and trial was fixed for 10th July, a month later. At the time the trial was fixed the presiding Magistrate clearly advised the Appellant to obtain legal representation, warning him that if he did not do so, he was unlikely to be given an adjournment on the hearing date to enable him to find a lawyer - that, as I understand it, being a standard direction given in No. 1 Courts to defendants when trials are fixed.

4. The Appellant retained a solicitor on 9th July 1996 and through him obtained an adjournment of the trial on 10th July to a new date on 22nd August. On that date, the Appellant did not attend trial because he absconded. A Warrant of Arrest was issued but the warrant was not executed for some time and it was not until 3rd November 1997 that the Appellant appeared in court again. At that time 9th December 1997 was fixed for trial of the trafficking charge, the Appellant was given bail again and told to obtain the services of the duty lawyer.

5. On 9th December 1997 which was the date of the trial, the Appellant submitted to the Magistrate he had been in custody since 3rd November 1997 and that although he had asked for a duty lawyer he had not been contacted and he wanted legal representation. At that point, the Magistrate who was originally listed to hear the trial realised that he had had previous contact with Appellant and the case was sent to another Magistrate for trial. The Appellant then applied for an adjournment before the Magistrate who was to hear the trial. The Magistrate considered that application with care, taking into account the history of the case. He acknowledged the charge was serious, he considered the legal interests of the Appellant and also the considerations that were due to the timely and proper administration of justice. He found that it was fair and in the public interest that the trial begin and not be delayed any further and refused the application for adjournment.

6. Having considered the history of the case, I am of the view that the Magistrate was perfectly correct to take this stance. The Appellant had had more than ample time to obtain representation. It was he who had jumped bail and thereby put himself beyond the reach of a duty lawyer at the time of the original trial, and he had done nothing actively since that time to prepare his trial, or obtain legal representation. On an overall view it appears that Appellant was doing his best to delay the trial, by yet another adjournment.

7. The Magistrate advised the Appellant as to the law and court procedure and said he would assist him throughout the case. The trial proceeded and the Magistrate throughout the trial did assist the Appellant; he went into great detail and took pains in so doing. It was not just a matter of telling the Appellant what he should do and letting him flounder. The Magistrate clearly explained each stage to the Appellant at the relevant time and, putting himself in the Appellant's place, told him of his rights and what he would have been advised by counsel. I cannot fault the way the Magistrate assisted Appellant.

8. As to whether or not the Magistrate should have adjourned to enable production of what Appellant said were medical certificates, I am of the view that the Magistrate had the facts before him and that it was within his discretion whether to adjourn at that stage. The Appellant had no idea of what was in the medical certificates. He only had a hazy idea that they were with his lawyer, a lawyer he failed to pay and who, apparently, was taking a lien on his file. In the 20-odd months the case had been outstanding the Appellant had made no attempt to find out the contents of those certificates, or to recover them from his erstwhile representatives. It was a matter for the Magistrate's discretion as to whether he should adjourn the trial for this purpose - I do not intend to interfere with the way he exercised that discretion and I do not consider the Magistrate's failure to adjourn to obtain these documents a basis for allowing this appeal.

9. I reject Appellant's submission that the trial was conducted on an irregular basis and that the Magistrate cross-examined on Appellant's behalf without giving an opportunity to ask his own questions. Nor do I agree that the Magistrate failed to give the Appellant an opportunity to speak or to make submissions on the special and general issues.

In all the circumstances, I cannot conclude that this conviction is an unsafe one. I am of the view that the Magistrate took the course that he took in the interests of justice and in the interests of the Appellant. The Appellant was more than adequately assisted by the Magistrate at the trial. This appeal is dismissed.