R. v. LEUNG WAI HUNG and Others

MAGISTRACY APPEAL NO.1346 OF 1994

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

_____________

__________________

J U D G M E N T

__________________

1. The six appellants appeared before Mr J.L. Saunders in the Western Magistrates Court and were all convicted after trial on charges of assisting with the removing of a restricted article with intent to assist another person to evade restriction. The appellants all appealed against conviction. The 6th appellant subsequently abandoned that appeal.

2. The ground of appeal, common to all, is that the counsel representing the appellants failed to advise them of their right to give evidence, of the existence of the presumption contained in s.35A of the Import and Export Ordinance, Cap.60 and of the consequences of not giving or calling evidence in their defence.

3. The counsel representing the appellants at the trial was Mr K.T. Kwong. Following the filing of the appellants' papers, Mr Kwong was approached on many occasions, I am advised, with the request that he give to the appellants' solicitors and counsel details of what instructions he had received and of the advice that he had given to the appellants, particularly concerning their right to give evidence. Surprisingly and disappointingly, Mr K.T. Kwong has, I am advised, declined to respond to these requests. He has been advised of the grounds of appeal, of the need for him to supply information and of the date of to-day's appeal hearing.

4. Miss Ip, who appears for the Crown, has applied for an adjournment together with an order from the Court that Mr Kwong appear and present himself to be examined on these matters. The application for adjournment is opposed by counsel representing the various appellants principally on the grounds that Mr Kwong has been approached in the past to provide the information but he has declined to do so and that the appellants should not be put to the further expense of an adjourned appeal hearing. I agree with these submissions and I can only say that Mr K.T. Kwong has failed in his duty as an officer of this Court in not complying with the requests that were made to him.

5. Miss Ip properly concedes that as the affirmations of the appellants had been admitted by me in which they make the complaint against their trial counsel, the Crown cannot resist the quashing of the convictions. She seeks a retrial which is opposed by counsel for the appellants. The principal ground of opposition, common to the appellants, is that they have already been put to considerable expense and will incur further costs if a retrial is ordered. There is also the question of what penalty might then be imposed if convicted on the retrial, given that it would be a retrial. The offences that the appellants faced are serious ones relating to smuggling and in my view the interests of the public come first in such matters, and that a retrial should be ordered.

6. Mr Delaney, who appears for the 4th and 5th appellants, has submitted to me that the second ground of their appeal should be allowed and that would entitle them to be discharged in any event. The ground of appeal is that the magistrate was not entitled on the facts that he had before him to draw the inferences that he did in respect of the 4th and 5th appellants. I disagreed with that submission and that ground of appeal has, in my view, no merit.

7. My order will, therefore, be that the convictions in respect of the 1st, 2nd, 3rd, 4th and 5th appellants will be quashed and the sentences and fines consequential thereon will be set aside. The appellants will be retried before another magistrate on dates to be fixed.