THE QUEEN v. MUK TO WAI

-----------------

JUDGMENT

-----------------

Mayo JA:

1. The appellant appeals against his conviction for reckless driving and the sentence of disqualification from driving for 12 months together with an order that he performs 240 hours of community service.

2. The grounds of appeal which have been lodged are somewhat unusual. It is claimed that the learned magistrate Miss Julianna Chow acted in an unjudicial manner during the trial which would have demonstrated to any reasonable observer that she was biased against the appellant.

3. The counsel representing the appellant at the trial Mr Simon Ng has made an affirmation which gives particulars of the complaints which are made.

4. He alleges that at the conclusion of the trial Miss Chow indicated that she proposed to adjourn the case for verdict until another date and a discussion then ensued as to the date when the hearing would be resumed. Miss Chow adjourned the case to 2.15pm on the following day that is the 2 April 1996. According to Mr Ng Miss Chow then without affording him any opportunity to address her revoked his client's bail pending the delivery of the verdict.

5. Mr Ng then attempted to make submissions to the effect that bail should not be revoked in the circumstances of the case which was not a serious case of reckless driving and that revocation of bail of the appellant was inappropriate in all the circumstances. She declined to entertain these submissions.

6. Mr Ng further affirmed that after Miss Chow delivered her verdict she said words to the effect: "Now you know what it is like to be in prison." She then of her own volition without hearing any submissions from counsel granted the appellant bail pending receipt of a community service report.

7. I have before me a letter from Miss Chow to the First Clerk at the Kwun Tong Magistracy in which she gives her version of what transpired.

8. She states that before revoking the appellant's bail she did indicate to Mr Ng that she was minded to revoke the defendant's bail. She had given this indication in the context of the discussion as to what date might be suitable for the resumed hearing. Mr Ng had submitted that a custodial sentence was not normal on a conviction for reckless driving.

9. Miss Chow also stated that she had no recollection of having said the words attributed to her by Mr Ng after delivering her verdict.

10. While there are differences between Mr Ng's version and the contents of Miss Chow's letter one matter is very clear. Miss Chow makes no attempt to provide any explanation for what on the face of it was a most remarkable order. She does not give any explanation or reason for making the decision she did to revoke the appellant's bail.

11. It is evident from a perusal of Miss Chow's statement of findings that this was not a particularly serious case of reckless driving and it is difficult to conceive how any magistrate properly discharging their duties could revoke bail in such circumstances.

12. I have regrettably come to the conclusion that any reasonable person attending at the trial would have formed the view that the magistrate must have formed a bias against the appellant for her to revoke his bail in such circumstances.

13. In my view the conviction which was recorded should be set aside. I now so order.

14. I understand that the appellant has been discharging the duties he has been required to undertake under the community service order. I have no doubt that this is not a case where an order should be made for a retrial and I decline to make any such order.