THE QUEEN v. LAU HON KAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 1534 of 1990

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BETWEEN

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JUDGMENT

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1. The appellant was convicted after trial on a charge of careless driving. He was unrepresented at the trial and now complains that the magistrate after ruling that there was a case to answer, failed to advise him of his right to elect not to give evidence, of his right to call witnesses, and of his right to re-examine himself to clarify matters which arose in cross-examination.

2. The magistrate recorded that after plea he explained the procedure to the appellant but the note does not detail precisely what that explanation included. After the Crown closed its case he did note that he had explained to the defendant his right to make a submission of no case to answer. After a submission by the appellant the magistrate ruled a case to answer. There is then no record of the magistrate having explained the appellants right to elect to give or not to give evidence and that if he gave evidence he would be required to answer questions put in cross-examination. There is no record that he advised the appellant of his right to call witnesses. The appellant did give evidence and this was shown to be inconsistent with a statement given to the police. It was important in this case for the magistrate to advise the appellant of his right in re-examination to explain if he could the apparent inconsistencies.

3. Where a defendant is unrepresented it is important that the magistrate fully explains to a defendant his rights and that the magistrate records the detail of what has been explained in the transcript. If this is done appeals such as the one now before me can be avoided. I allow the appeal and order a retrial before another magistrate.