THE QUEEN v. CHEUNG YIU MAN

HEADNOTE

Magistrate's failure to record that unrepresented defendant advised of right to call witnesses - defendant's evidence disbelieved - failure to call supporting witness criticised - witnesses available - retrial ordered.

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 575 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant was convicted of failing to comply with traffic light signals. The sole prosecution witness was a police constable on motor cycle patrol, who said the appellant turned left at a junction against a red light.

2. The appellant gave evidence and said the lights were green when he passed through the junction. In cross-examination he said "I did not jump the red lights that day. I had two delivery workers with me.".

3. In his statement of findings the magistrate set out the grounds for accepting the evidence of the police constable and rejecting that of the appellant in the following terms:

"The evidence is straightforward and simple. It's a question of who do you believe. I found the officer was following the Appellant and saw him jump the red lights. Appellant says he did not, he had two delivery workers none of whom were called to support his evidence and no reasons were given as to why he did not call his witness and I did not accept the Appellant's evidence, I convicted him as I had no reasons to doubt the officer's evidence.".

4. The sole ground of appeal is that the magistrate failed to inform the appellant, who was unrepresented, of his right to call witnesses in his defence.

5. At the conclusion of the police constable's evidence-in-chief, the magistrate recorded that the defendant had no questions to ask. There follows the entry, "Defendant : I would like to give my version.". The appellant gave evidence, but declined to make a speech. He was then convicted.

6. There is nothing on the record to indicate that the appellant was invited to call witnesses in his defence. One of his passengers was in court during the trial but did not give evidence.

7. In R. v. YEUNG Cheung ⁽¹⁾ Hogan C. J. dealt with a similar situation thus : "As regards the witness who he allegedly wished to call, we have ascertained from the appellant the substance of the evidence which he believed this witness would have been prepared to give and it is quite clear that it could have made no difference whatever to the substance of the evidence against him on the charges of which he has been convicted.

8. In the circumstances we do not think that it is necessary for us either to call this witness here or to send the case back for a retrial in order that he should be heard; we think that we can fairly deal with the matter on the evidence shown on the record before us. We would, however, like to stress the desirability of trial judges noting on the record that they had ascertained from the accused whether he does or does not wish to call witnesses; we have been placed in some difficulty in the present case by the absence of any indication on the record as to whether this enquiry was or was not made.".

9. These observations were endorsed by Pickering, J. in R. v. NGO Ngan-ting ⁽²⁾. He continued, "At the same time I am far from saying that the omission of a professional magistrate specifically to endorse upon the record that an unrepresented appellant was informed of his right to call witnesses, will necessarily result in a successful appeal. Appellate courts must and do recognise that professional magistrates are indeed professionals and as such entitled, upon a routine issue of this sort, to the benefit of any doubt. What bedevils the present case is the ambiguity of the learned magistrate's note in regard to the courses which were explained to the appellant and when that is coupled with the apparent existence of witnesses who may have given material evidence to the effect that the appellant's claim was a claim of right, an appeal court cannot assume what it would otherwise readily and rightly have taken for granted.".

10. Counsel for the Crown in the present appeal seeks to distinguish that case on the grounds that a claim of right was involved. She submits that this was a simple issue of credibility and that defence witnesses could have added nothing to the defendant's evidence.

11. I do not agree. There was only one witness for the prosecution. The passengers' evidence might well have sown a doubt in the court's mind. The fact that the magistrate makes specific reference to the failure to call defence witnesses and gives this as his reason for disbelieving the defendant, persuades me that justice demands that the case be retried.

12. I allow the appeal, quash the conviction and order a retrial.

(1)    1959 HKLR 338

(2)    1976 HKLR 143 s. 148