R. v. SIU YIU WAH

Magistracy Appeal No.64 of 1997

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H E A D N O T E

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Magistrates' Appeal - a first offender pleaded guilty to reckless driving and was sentenced to six weeks imprisonment and was disqualified for 18 months. On appeal :

1. There is a duty on magistrates to consider whether before sentencing a first offender to prison, there is any alternative appropriate sentence.

2. There is no legal requirement to insist on a notice of appeal before bail is granted.

3. Although the grant of bail pending appeal is a matter of discretion, there should be strong grounds for refusing it where a short prison term is imposed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.64 OF 1997

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J U D G M E N T

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1. This is an appeal from a sentence passed by Mr Wright sitting at the Eastern Magistrates Court.

2. The circumstances of the offence, a case of reckless driving, were that the appellant was on a motorbike and it was very early in the morning with no traffic about. He was seen by police officers who followed him to observe his speed. He noticed the police officers behind him and tried to speed off to avoid them and he was pursued. He went through a no-entry sign in North Point Road and also Java Road, he crossed a red light and subsequently abandoned his motorbike. He admitted the offence. He said he had feared being breathalysed. He pleaded guilty and this clearly was a bad piece of driving, such as to justify a charge of reckless driving.

3. What then took place was unfortunate. The mechanical transcription records all that was said. The magistrate obviously had in his mind from the outset that he was going to send him to prison. The appellant said when asked to mitigate "Well I need to ride on a motorbike for my full-time job as well as for my part-time job". The magistrate then said "I suspect you might not be following your employment for a short period." He was a first offender. The duty of magistrates is to try to keep people out of prison if that is possible. For first offenders, there is a duty to see whether there is any other method of dealing with them before they are sent to prison. The appellant was not warned that he was liable to go to prison and he was unrepresented. On 19 December 1996 the magistrate sentenced him to six weeks' imprisonment, and disqualified him for 18 months.

4. On 24 December, the appellant had managed to get the services of experienced counsel Ms Draycott. She addressed the magistrate in a courteous and detailed submission to ask him to review the sentence. She said "It's a dreadful piece of driving, ... but it's the middle of the night .... There is very little traffic." The magistrate interrupted and said "Had it been any other time, it would have been an appreciably longer sentence, Ms Draycott." I find that interjection very difficult to understand from a magistrate who was supposed to be listening fairly to a submission.

5. The magistrate then said at the end -

"... your counsel has told me details about you now ... the only effect that those may have had on the decision I made would have been for me to call for reports on you. Had I done that you would have been remanded in custody for three weeks ..."

That is wrong. There is no necessity to remand people of good character in custody for an offence unless it is a serious offence like violence. This was Christmas Eve. Then Ms Draycott said "I make an application for bail pending appeal." The magistrate said "File the notice of appeal and I'll hear the application." That was wrong. There was no necessity for this magistrate to have insisted upon a notice of appeal. Ms Draycott said "... it's now Christmas Eve, I wonder if I might give an undertaking that that be filed." The magistrate said "I have no jurisdiction to hear it until such time as a notice of appeal has been filed".

6. This attitude of the magistrate was not only wrong, but deliberately obstructive. This was an appeal against sentence.

7. Then there was a remarkable dialogue between counsel and the magistrate. He said

"There's an authority that says there are two considerations. One is the shortage of sentence and I accept that. The other is prospects of success on appeal and I don't see on all of the Hong Kong authorities, I don't see how there are prospects of success on appeal, Ms DRAYCOTT."

8. This was an arrogant attitude to take. Persons have a right of appeal by law. I know of no authorities, nor does Mr Cheung, which says that reckless driving by a first offender, who pleads guilty, attracts an immediate prison sentence - particularly of the length imposed.

9. Our system of justice is an appellate one. It is part of judicial training that one has to accept that a decision is appealed. Magistrates must accept that judges may take a different view, or there might be new or additional factors drawn to the judges' attention.

10. The magistrate then adjourned the case until 4 o'clock to see whether there were any authorities. This again seemed to be obstructive - why he needed an authority for such a simple matter as bail pending an appeal against sentence, I fail to understand. He, however, then said :

"There was a fairly recent judgment by Sears J where he said that magistrates must always, in every instance, automatically grant leave bail pending any appeal against anything at all and that was subsequently dissented from by a higher court and it's that latter judgment that I seem to recall saying it's a two fold test not an either or test."

11. This was a misquote from a decision of mine - MA 480 of 1995 - where I said "Magistrates must not be sensitive about giving bail pending appeal. We are all appealed." This magistrate obviously did not like that decision. Not only did he attribute exaggerated words to me, but he deliberately chose to ignore it, as he said it had been dissented from by a higher court. This is factually incorrect. This conduct, in my judgment, bordered on the offensive. Magistrates should respect, and indeed are bound by decisions of High Court Judges. Had this magistrate applied the correct principles and respected my decision and I am sure a similar approach from my brother judges, the injustice which followed would not have happened.

12. Ms Draycott did her best to get bail and it was refused. This was Christmas Eve, it was necessary, of course, to find a judge. So what this meant is another High Court Judge has had to waste time in dealing with a bail application which was unopposed by the Crown. In my judgment, the appellant was unjustly treated.

13. Leaving aside the circumstances of the offence which in themselves are serious, this man did not have fair treatment from that magistrate. I think counsel was also treated in an arrogant and unjust manner. For this type of offence, I can see no reason why a prison sentence may not be appropriate, but the personal circumstances of each case must be considered. For serious reckless driving or road racing, short, sharp shocks may well be passed on defendants. In my judgment, the proper sentence here should have been, if imprisonment was necessary, two or three weeks which would have taught this young man a lesson. The disqualification itself was a severe punishment. However, he has been kept in custody, in my judgment, wrongly, therefore, I consider that although he may well have had a prison sentence, he has already served nine days which is sufficient.