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  • Oct 22, 2014
  • Updated: 4:29pm
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COURTS

Magistrate rapped for refusing bail request without giving reason

Eastern Court's Symon Wong, who gave no reason for refusing man's request for time to get a lawyer, 'brought disgrace to judiciary'

PUBLISHED : Saturday, 19 July, 2014, 4:02am
UPDATED : Saturday, 19 July, 2014, 4:02am
 

A High Court judge has rapped a magistrate for "bringing disgrace to the judiciary" over his decision to refuse bail to a defendant in a drug case who had requested time to get a lawyer.

Deputy judge Mr Justice Michael Stuart-Moore said he was "utterly shocked" that Magistrate Symon Wong Yu-wing, of Eastern Court, did not give any reason on Monday for remanding Leung Ka-kit in custody.

Leung, 34, had earlier been granted bail twice, by the police and the courts. But Wong's decision landed the defendant in jail for four nights, until he had the opportunity to present his application for bail afresh at the High Court yesterday, in a hearing brought forward by Stuart-Moore to remedy the situation.

"There is not one single valid reason either by the magistrate or by the fact, for the withdrawal of the bail," the judge said.

He called it an abuse of power "to lock up an unrepresented defendant who was highly powerless to do anything".

The judicial system was built on the principle of equal treatment and all parties who were brought before the court should be treated fairly, Stuart-Moore said.

Not only was Leung not legally represented, but the prosecution had not challenged his request for bail, he said.

Stuart-Moore apologised to Leung on behalf of the judiciary and said he hoped it would not happen again. He also allowed the defendant to be released on bail of HK$500.

The judge further noted that the bail document Wong signed listed 15 reasons from which the magistrate could select to explain why the defendant was required to be taken into custody.

But Wong did not choose any of those reasons, writing only "remand in custody" and signing the form, he said.

The magistrate, by abusing his judicial power to control someone who was entitled to his liberty, "has brought disgrace to the judiciary", Stuart-Moore said.

The court heard that the suspect was arrested in Central on April 30 and later released on police bail.

On June 10, Leung attended Eastern Court and denied the twin charges of possessing 0.5 grams of the dangerous drug Ice and of possessing apparatus for inhaling drugs. Magistrate Bina Chainrai set July 14 as the trial date and granted the defendant bail of HK$500.

Leung, who had no legal representative, returned to Eastern Court for his trial on Monday. He asked Wong for an adjournment so he could have more time to seek a lawyer.

The prosecution indicated that it had no objection to extending Leung's bail, but Wong revoked it.

Leung applied for bail again at the High Court two days later. Prosecutor Annie Li read the document and found the situation unusual, so she alerted the court.

Leung's bail application was to be heard next Monday, but Stuart-Moore found it an urgent matter and fixed a hearing for yesterday afternoon.

The judge expressed appreciation for the Department of Justice's assistance. He said such a case should be marked "urgent" so that the courts could deal with it as soon as possible.

 

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This article is now closed to comments

caractacus
Strong words from a High Court Judge, but it illustrates the importance of the rule of law.
No first instance judge can do as the whim takes him. This is only because he is answerable to a higher court.
johnfra
This case is perhaps inexcusable and the only reason (if it supports a denial of bail at all) that the magistrate may find that the Accused may not be sincere in looking for a lawyer but just want to string the case along. After all, he was on bail from June 10, plenty of time to get a dozen lawyers. There may be something in the oral exchange in Court which we have not heard.
Incidentally, most of the time defendants are remanded in custody is that the police, anxious to get an arrested person to court within the 48-hour dateline, rush the suspect/accused to Court and simply ask the Court to remand the suspect pending further enquiries, citing offence is a serious one. The Courts invariably grant such applications without going into the merits of what minimum evidence the police have to justify the arrest and to justify the detenion in custody. Defendants are asked whether there is anything they wish to say about bail, but nothing else. Any protests about their innocence will be met with "reserve your defence till the prosecution completes its enquiries." If a defendant should have a previous record, forget it altogether.
This is nothing new and has gone one right through colonial times. Perhaps the time is ripe for a change, an adoption of what some other States do in the preliminaries, i.e. the police to make out its very early case to show probable cause; the defence to present its side (though not obligatory) to have the court dismiss the arrest. Good luck,
teresaleema
He study Criminal Procedure again, I guess he doesn't know the definition of "Presumption of Innocence "
OC2S
Be thankful for our independent judiciary and genuine right of appeal in front of an unbiased court. Something that Hk can be exporting to china pre-2047.
ianson
Sadly, most of our magistrates today are poor exponents of the principle "innocent until proven guilty". Bail is routinely refused before trial on bare police allegations resulting in months (not days, not weeks but months) in jail before a shred of evidence is presented in court. Bail conditions can be stringent; there is no reason for so many merely accused persons to be kept behind bars for so long given many of them will ultimately be found innocent and to have spent that time incarcerated unjustly. But that is the mindset of most magistrates today: looks bad, lock 'em up.
Dao-Phooy
Agree. The quality of a significant number of magistrates is poor. It is difficult for the Judiciary to recruit talented people at this level as the pay isn't very attractive - candidates are often failed lawyers who can't make it in private practice.
maecheung
Unattractive pay isn't an excuse for being incompetent! This magistrate should be reprimanded!
teresaleema
Totally agree with u !
teresaleema
Yes, the reality is if they are able to earn millions in one case, why bother to earn only hundred thousands a month for working 9 to 5pm, and also need to do tonnes of paperwork afterwards
johnfra
This case is perhaps inexcusable and the only reason (if it supports a denial of bail at all) that the magistrate may find that the Accused may not be sincere in looking for a lawyer but just want to string the case along. After all, he was on bail from June 10, plenty of time to get a dozen lawyers. There may be something in the oral exchange in Court which we have not heard.
Incidentally, most of the time defendants are remanded in custody is that the police, anxious to get an arrested person to court within the 48-hour dateline, rush the suspect/accused to Court and simply ask the Court to remand the suspect pending further enquiries, citing offence is a serious one. The Courts invariably grant such applications without going into the merits of what minimum evidence the police have to justify the arrest and to justify the detenion in custody. Defendants are asked whether there is anything they wish to say about bail, but nothing else. Any protests about their innocence will be met with "reserve your defence till the prosecution completes its enquiries." If a defendant should have a previous record, forget it altogether.
This is nothing new and has gone one right through colonial times. Perhaps the time is ripe for a change, an adoption of what some other States do in the preliminaries, i.e. the police to make out its very early case to show probable cause; the defence to present its side (though not obligatory) to have the court dismiss the arrest. Good luck,

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