ATTORNEY GENERAL v. TUNG YING CHUEN

IN THE COURT OF APPEAL

1987 No. 20
(Criminal)

BETWEEN

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JUDGMENT

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Kempster, J .A.:

1. On 27th October last year at Victoria District Court Judge Cameron dismissed two charges of blackmail and one charge of theft preferred against Tung Ying-chuen. He did so on the grounds or want of prosecution on the part of the Crown. Against that determination the Crown appeals by way of Case Stated pursuant to section 84 of the District Court Ordinance. The respondent, Tung Ying-chuen, is not present albeit such service as is required by law has been effected in that the documents have been left at his last known place of abode.

2. The respondent first appeared at K9wloon District Court on 22nd September 1986 where he pleaded not guilty to the charges and was remanded in custody. He had thus been detained for some 35 days by the 27th October. Abeit the maximum sentence which could have been passed in respect of the charges was one of 7 years imprisonment, having regard to the terms of section 82 of the District Court Ordinance, the charges were serious ones. Blackmail carries a maximum sentence of 14 years and theft of 10 years on indictment. At all events when the case was called on the victim of the charges and key witness was not present in court. A short adjournment was granted to no avail and it was made known to the judge that although the witness in question had been told on 22nd September to attend again on 27th October no application had been made for a witness summons to compel her attendance and that the Crown, through the police or otherwise, had taken no other step to ensure her presence.

3. On learning this the Judge obviously and reasonably felt that those concerned for the prosecution had failed to discharge their obligations to be ready for trial and, positively to demonstrate his disenchantment in the circumstances, dismissed the charges. We have to consider whether that was an appropriate, fitting and lawful exercise of his undoubted discretion.

4. One relevant factor must be the time during which an accused person has been kept in custody. Another must be the gravity of the charges. A third may be the behaviour of the prosecution. We incline to the view that not only must someone sitting in a judicial capacity give an opportunity for the explanation of failure by any party to have a case ready, whether in relation to documents, the availability of witnesses or otherwise but also, unless for example a party has shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time.

5. We think, even without recourse to authority, that here the judge failed to do justice to the Crown. After all the interests of the community have to be considered as well as those of the individual charged. Really there is only one way in which the judge's discretion could properly have been exercised and that was to grant a further short adjournment to allow for provision to be made for the material witness to be brought before the court or for some explanation to be given for her absence.

6. We allow this appeal by way of Case Stated and answer the question of law arising which is Whether I erred in law in exercising my discretion by dismissing the charges and in acquitting the respondent in the affirmative. The case will be remitted to Judge Cameron to continue with the hearing.