THE QUEEN v. HO SIU KEUNG

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JUDGMENT

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1. The appellant was charged with gambling in a gambling establishment. In the early hours of the morning of 8th July, this year, a large number of people were arrested at an address in Wanchai by a police party. Among those arrested was the appellant.

2. The summary of facts provided by agreement between counsel on both sides gave rise to two presumptions under section 19 of the Gambling Ordinance; namely, that the premises were a gambling establishment and that the defendant was found on those premises and, therefore, was presumed to have been gambling himself.

3. The defendant gave evidence at the trial and called witnesses, with the intention of rebutting the presumption which had arisen on the facts. Having heard that evidence, the magistrate convicted him.

4. Three grounds of appeal have been put forward on behalf of the defendant. First, that the conviction was unsafe because the magistrate had failed to give any reasons for convicting the appellant.

5. So far as this is concerned, the magistrate sets out briefly the story that was told by the defendant and his witnesses during the trial. At the end of this summary, he concludes -

6. "I do not find the explanation at all convincing."

7. This is a shorthand form which implies clearly that the magistrate, having considered the evidence put forward in rebuttal of the presumption, was not satisfied by it to the extent necessary for that purpose.

8. It must be recalled that we are dealing with a Magistrate's Court and that much shorter reasons are acceptable than those to be expected in higher courts. It was, after all, a very narrow issue which lay before him and the fact that he did not accept the explanation put forward by the defendant was sufficient to justify his finding that the presumption had not been rebutted.

9. The second ground was that the magistrate failed to provide the defence with an opportunity to sum up the evidence for the defence, at the end of the defence case.

10. Linked with this is the third ground, that the conviction was unsafe because the magistrate reached his conclusion before hearing the final submission to be made by defence counsel.

11. The case on which Mr. Tang based his arguments for the defendant, was The Queen v. SIU Yeung-lung^(l), a decision of my own in 1983, in which I expressed the view that an unrepresented appellant had the right to a final speech on his own behalf before conviction, and that a failure to inform him of his right before conviction was a serious omission which was fatal to the conviction.

12. In the SIU appeal, I was dealing with an unrepresented appellant and was referred to no authorities of any kind. There were, however, two reported cases which dealt with the point, WONG Sang v. The Queen⁽²⁾ and The Queen v. LO Kee⁽³⁾.  In the first of these, both of which were decided by the High Court sitting in its appellate jurisdiction, Scholes, J. found that the magistrates Ordinance did not give a specific right to the defence to address a Magistrates Court at the close of the evidence in a case. He said -

13. The conviction was then upheld.

14. In the second case, Creedon, J. was faced with a similar argument and, at page 611, dealt with it in the following terms -

"That section (i.e. section 19 of the Magistrates Ordinance) confers no 'right' of address on an accused person. If the magistrate goes beyond that and permits an accused person or his counsel or solicitor to address him at the conclusion of the evidence he is doing so, not out of his fulfilling a duty where a 'right' is being exercised but rather out of courtesy or because it is part of the ordinary 'cursus curiae' of the particular magistrate himself. The question came before this Court previously and it is not without surprise that I find that neither counsel has referred to the case in which it was decided. The case is Wong Sang v. The Queen [1959] H.K.L.R. 417."

15. Had those two authorities been drawn to my attention in SIU⁽¹⁾, I cannot doubt but that I would have felt obliged to follow them. Therefore SIU must be regarded as haling been decided per incuriam. Even if I took a different view as to the desirability of a speech being accorded to the defence in all circumstances, I am obliged to follow these two decisions which rule that there is no such right. If there is no such right there can consequently be no infringement of it and, therefore, the absence of an opportunity afforded to defence counsel to address the court cannot be a ground for upsetting a conviction

16. I should perhaps also comment that it is important, if allegations are to be made against a magistrate with regard to the sufficiency of the record, these should be put to him so that he may have an opportunity to comment upon them.

17. In this instance, I have before me an allegation by counsel, who then appeared, that he was afforded no opportunity to address the magistrate on behalf of the defendant, but no effort was made by the appellant to obtain the magistrate's comments on this allegation.

18. I should, perhaps, in parenthesis, add that though this is not necessary to my decision, a counsel of long experience, such as the counsel here concerned, ought to have been expected to say something at the time when he felt that he had a right to address the magistrate, though he appears to have said nothing at all.

19. I see no grounds on which I could properly upset this conviction and the appeal is dismissed.

(1)    Mag. App. No 444 of 1983

⁽²⁾    [1959] H.K.L.R. 417

⁽³⁾    [1966] H.K.L.R. 601