THE QUEEN v. CHAN KOON-WAH

CACC000175/1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 175 of 1983

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Between

	The Queen	Respondent
	and
	CHAN Koon-wah	Appellant

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Coram: Hon. Penlington, J. in Court

Date: 28th June, 1983

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JUDGMENT

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1. The only ground in this appeal which seems to be arguable was the magistrate was wrong in exercising his discretion to hear the charge brought against Lee Yuk Tong in the absence of that defendant. Lee Yuk Tong was arrested on the 26th of November on board of a deep sea trawler, South-East of the Soco Islands, together with the cassette radios which are the subject of this appeal. He was released on bail $10,000, pending trial on the 13th of April 1982. He failed to appear and bail was estreated. The matter was adjourned to the 23rd of July 1982. Meantime, in May, the Commissioner for Customs and Excise made application to forfeit these cassette radios. Lee did not appear again on the 23rd of July but the application was then heard and an order of forfeiture made.

2. Mr. Lee in fact did eventually surrender on the 8th of February 1983. He pleaded not guilty and was tried on the 14th of March, 1983. I am informed he then changed his plea to one of guilty and he was sentenced to two months' imprisonment.

3. While that was not a matter which was before the magistrate when he heard this application, it is a matter which I think I can consider. I am satisfied that there was no reason whatever why the magistrate should delay hearing the matter any further than he did. He was entitled to hear the matter on the absence of the accused if the accused has failed to answer to his bail. I can't see anything in the record which indicates that he was wrong in deciding to do so. I am satisfied that the appellant was not prejudiced by the fact that Lee Yuk Tong was not present at the hearing of this matter. Having been through the record I am also satisfied that the magistrate was quite entitled to come to the conclusion that he did. He had a discretion whether to order forfeiture of the goods. He exercised that discretion and I am quite unable to say that he did so improperly. The appeal must be dismissed.

4. The matter was very fully and carefully argued in the court below.  Indeed, I think everything which could possibly be said there was argued. However, here the Crown does not seek costs and I think probably there was an arguable point here. There will be no order as to costs.

	(R.G. Penlington)
	Judge of the High Court

Representation:

J.W. Dick, Counsel for the Crown/Respondent.

Walter Lau (Chung & Kwan) for Appellant.