THE QUEEN v. SZE KWOK-YEN

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H E A D N O T E

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    Duty to keep open mind until all evidence heard.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 991 OF 1989

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J U D G M E N T

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1. The appellant was granted leave to appeal out of time against both conviction and sentence by Mr Townsley in South Kowloon Magistrates Court on a summons for reckless driving. The appeal against sentence is now abandoned, no doubt because the sentence of two months imprisonment has been served.

2. On 3rd October, 1987, two police constables were on patrol in Jordan Road, when they saw a private car stop at the traffic lights, in which the front seat passenger was not wearing a seat belt. PC2856 walked to the driver's door, pointed out the offence to the driver and asked for his licence. The driver did not respond. When PC2856 asked him a second time and put his hand inside the window, the driver accelerated across the junction, obliging the officer to jump back out of the way.

3. The number of the vehicle was taken and a form Pol 571 was sent to the vehicle owner. It was returned by the appellant, who identified himself as the driver of the car at the time and place alleged.

4. The appellant was unrepresented in court and he pleaded not guilty. He did not cross-examine either, of the police constables, nor the investigating officer. At the close of the case for the crown, the following exchange took place-:

"Bench : Defendant since you've not contradicted any of the Crown's case which completely proves the offences - what defence are you raising? Why are we having a trial?

Defendant : I was the driver that day but I did not drive in Jordan Road that day.

Bench : But you've signed two documents saying you were the driver on 'Jordan Road, near Nathan Road?'

Defendant : Yes.

Bench : So you're saying the PC is hallucinating : Your car was never there?

Defendant : I've nothing to say on that.

Bench : You were the driver at all times on 3rd October, 1987?

Defendant: Yes."

5. The appellant was then asked if he wish to give evidence and he elected to remain silent. He was then convicted.

6. In R v. WONG Man-yuen Criminal Appeal No. 301 of 1985, the Court of Appeal stressed the importance of keeping an open mind until all the evidence had been heard.

7. I realise it can be irritating for a magistrate when he believes that his time is being wasted. But those who sit on the bench must control their impatience. The magistrate's intervention in this case was untimely and unfortunate. It may have had the effect of inhibiting the appellant from giving evidence. Although it seems unlikely that there was a defence, it is not beyond the bounds of possibility. The number may have been incorrectly recorded; there may have been other matters he could have raised. Counsel is instructed that he was not at the scene of the alleged offence.

8. For these reasons the appeal is allowed, the conviction quashed and the order for disqualification set aside. In view of the fact that the sentence has already been served, I do not propose to remit the case for retrial.