Criticism of magistrate unfair
Solicitor Andrew Lam Ping-cheung's comments on the decision of a magistrate not to review the community service order earlier imposed upon Nicholas Tse Ting-fung for an offence of conspiring to pervert the course of justice are wide of the mark ('Government blunder means star will never serve time, predicts lawyer', South China Morning Post, November 19).
First, it is less than fair to the judicial officer concerned for Mr Lam to assert: 'It is obvious that Magistrate Alan Wyeth would insist that he was correct.'
I have no doubt Mr Wyeth approached his duties in an open-minded and judicial manner, and that if, having heard full legal argument, he felt he had erred, he would have reviewed his decision.
Second, although Mr Lam criticises the delay caused by the application to the magistrate to review his decision, a review of sentence to the Court of Appeal takes far more time.
The beauty of a review in the Magistrates' Court is that it is expeditious. It enables a magistrate, within a short time of deciding a case, to revisit an issue that has arisen and, if necessary, to review it. The device is regularly deployed and often avoids the need for appellate proceedings.
Third, although Mr Lam claims that if an offender's community service order has finished by the time his sentence is reviewed by a higher court, 'the judge will have no choice but to let him go', the Court of Appeal in 1998 decided otherwise. The court indicated that even if an offender has completed his community service by the time the review of sentence is determined, he may still expect to be imprisoned if his offence is such as to warrant imprisonment.
A decision will be taken shortly as to whether the interests of justice require the institution of proceedings for review of sentence in respect of both defendants in this case.
I. GRENVILLE CROSS SC
Director of Public Prosecutions