R. v. KWOK CHI KWAN

1997, No.MA145

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H E A D N O T E

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Magistrates' Appeal - hearing below conducted with agreed facts and undisputed caution statements - no oral evidence called - nothing read out.

Trials must be conducted so that the public know what is happening.

Silent trials should not be permitted.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 145 OF 1997

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J U D G M E N T

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1. This is an appeal from Mr Bin Wahab, magistrate sitting at Eastern when the defendant with another was charged with burglary. A third defendant had earlier pleaded guilty.

2. What took place was very unusual. I have read the full transcript from a mechanical recording, so everything that was said was taken down. I do not think the magistrate received any help from counsel. All that happened was the prosecutor handed up some agreed facts in handwriting and two statements from the defendants. No evidence was called and nothing was read out in court. The appellant did not give evidence. Submissions were made and the magistrate retired to read everything in his chamber. When the magistrate returned he acquitted one defendant and convicted this appellant.

3. Although people can agree facts to save time, there has to be some basic facts read out in the court. The statements should also have been read out. Anyone coming into this court either from the press or the public would have wondered what was going on. I think that was a material irregularity which would allow me to set it aside. Also I think there is a lurking doubt as to whether or not the appellant's statement really is an admission to the burglary that had taken place. Although it was the prosecution case that this was a joint enterprise type of case, the appellant should have been charged with going equipped for stealing which was clearly the case, as he was found with housebreaking implements.

4. Silent trials should not be permitted. Justice must be conducted in an open manner. The appeal is allowed.