A comment was left in 上庭的代價 today. My Penpower pen is broken and I am waiting for a replacement from Taiwan. I can only write in English to save the trouble of using my finger to write on the Nexus 7 tablet.
I copy the comment here for the purpose of discussion and easy reference.
Anonymous complained about the length of time taken for the trial. Without the benefit of seeing transcripts of the trial, I can only analyse from my past experience to see if the complaint is justified. The analysis is for the benefit of the people who do not know how the court works.
Day1--The defendant served with a court summons to appear in court for the first time the purpose is for plea only. The defendant cannot expect to deal with the case there and then and reach a final decision on the plea day unless the defendant pleads guilty or the prosecution drops the case. No complaint can be made about it if the defendant pleads not guilty and has to come back for trial on another day. This is done in accordance with various provisions in the Magistrates' Ordinance Cap 227 as well as other related ordinances. At the same time, there are numerous plea cases brought up every day from different government departments. One cannot expect to proceed to a trial on his first appearance.
Day 2 --The trial day. Normally a reasonable number of cases are fixed for trial on the same day depending on the total number of witnesses involved. In a traffic trial court, it is very common to see several trial cases fixed. For various reasons unbeknown to the court beforehand, some defendants will plead guilty or adjournment will be sought because of the unavailability or absence of prosecution witnesses. At times, warrant of arrest issued when the defendant does not turn up. These are normal reasons curtailing the workload on the trial day. If all the defendants plead not guilty and no adjournment is sought on either side, then the magistrate has to deal with all the trials. Sometimes, other magistrate will offer to take up some of the trial cases when he finishes his own list. Another result is the trial magistrate is unable to finish the whole list and some of the cases have to be re-fixed to another trial day. If this happens, I cannot say it is not a justifiable outcome.
Day 3 -- The re-fixed day. Priority should be given to a case which is re-fixed in a previous occasion. In the normal circumstance, I do not see the need to adjourn for verdict a traffic matter when no complicated point of law is involved and my experience tells me most of the traffic trials involve the finding of facts. There are normally no justifications to further adjourn the matter for verdict.
Day 4 -- The day supposed verdict to be delivered. If there are further issues arising, unless complicated law point is involved, I see no justification to adjourn the matter further.
Day 5 -- If the magistrate finds that the complaint against the unfairness of the prosecutor is devoid of merit, there is no justification to order trial de novo and re-fix the case to another magistrate for a new trial.
Day 6 -- The case is concluded within 1 day by another magistrate. It shows that there is no need for the case to waste Day 4 and Day 5 by the original magistrate. I will analyse it in a moment.
Day 7 -- Appeal heard. The decision may not be delivered on the same day of the appeal because some high court judges like to write the judgement before a decision is announced. In the instant case, the defendant does not have to go to court again for that. There should not be any complaint.
The reader suggests that more resources have to be deployed for training and appointment of more judicial officers to shorten the waiting time and save the defendant from attending court unnecessarily. This is only an outsider's point of view. The judiciary pledges to ensure trial be fixed within 6 to 8 weeks from the first appearance in the magistrate court. My impression is this target is basically met with the appointment of deputy magistrates and deputy special magistrates. The problem does not lie in the manpower, it is in the competence of the people rather. In the case brought up by the reader, Day 4 to Day 6 are actually wasted. The deputy magistrate forgets about the function of the magistrate court. She should be able to deliver the verdict there and then once the trial is concluded. One of the tactics to avoid workload is to prolong trials and adjourn unnecessarily. If you prolong the trial in hand, that means you cannot try other cases. They have to be given to other magistrates to deal with or re-fixed. Without doubt, this can be used to avoid more trials, in the end, more appeals. Some magistrates may just listen to the evidence until noon time and adjourn the case for verdict until 4 pm. In the meantime, all other cases cannot be dealt with and they can pretend to be busy and occupied.
I copy the comment here for the purpose of discussion and easy reference.
Let me share my experience here, a year ago I was charged with 2 traffic offences. At the end it took me 7 days spreaded over a year to get this over.
Day 1 - Pleaded not guilty
Day 2 - Waited one whole day and was told there is no time to hear my case.
Dat 3 - Trial heard by a magistrate featured in another article of yours in the same page. I was self represented and had no legal background.
Day 4 - Verdict was suppose to be given, but I complained the prosecutor on some points and the magistrated postponed the verdict to another day.
Day 5 - The magistrate insisted the prosecutor did nothing wrong and I said if she beleives the prosecutor did nothing wrong, please give her verdict, which the magistrate refused. At the end she decided to "trial de novo" although neither the prosecutor or myself wanted this.
Day 6 - Trial heard by another magistrate. He found me no case to answer for one offence, and guilty for the other offence which I was fined.
Day 7 - Appeal heard at the court of first instance. I was notified later my appeal was successful with cost given back to me.
My personal thought is the government should consider training and hiring more magistrates to ensure more attention is given to each case and to shorten the waiting period.
Day 1 - Pleaded not guilty
Day 2 - Waited one whole day and was told there is no time to hear my case.
Dat 3 - Trial heard by a magistrate featured in another article of yours in the same page. I was self represented and had no legal background.
Day 4 - Verdict was suppose to be given, but I complained the prosecutor on some points and the magistrated postponed the verdict to another day.
Day 5 - The magistrate insisted the prosecutor did nothing wrong and I said if she beleives the prosecutor did nothing wrong, please give her verdict, which the magistrate refused. At the end she decided to "trial de novo" although neither the prosecutor or myself wanted this.
Day 6 - Trial heard by another magistrate. He found me no case to answer for one offence, and guilty for the other offence which I was fined.
Day 7 - Appeal heard at the court of first instance. I was notified later my appeal was successful with cost given back to me.
My personal thought is the government should consider training and hiring more magistrates to ensure more attention is given to each case and to shorten the waiting period.
Day1--The defendant served with a court summons to appear in court for the first time the purpose is for plea only. The defendant cannot expect to deal with the case there and then and reach a final decision on the plea day unless the defendant pleads guilty or the prosecution drops the case. No complaint can be made about it if the defendant pleads not guilty and has to come back for trial on another day. This is done in accordance with various provisions in the Magistrates' Ordinance Cap 227 as well as other related ordinances. At the same time, there are numerous plea cases brought up every day from different government departments. One cannot expect to proceed to a trial on his first appearance.
Day 2 --The trial day. Normally a reasonable number of cases are fixed for trial on the same day depending on the total number of witnesses involved. In a traffic trial court, it is very common to see several trial cases fixed. For various reasons unbeknown to the court beforehand, some defendants will plead guilty or adjournment will be sought because of the unavailability or absence of prosecution witnesses. At times, warrant of arrest issued when the defendant does not turn up. These are normal reasons curtailing the workload on the trial day. If all the defendants plead not guilty and no adjournment is sought on either side, then the magistrate has to deal with all the trials. Sometimes, other magistrate will offer to take up some of the trial cases when he finishes his own list. Another result is the trial magistrate is unable to finish the whole list and some of the cases have to be re-fixed to another trial day. If this happens, I cannot say it is not a justifiable outcome.
Day 3 -- The re-fixed day. Priority should be given to a case which is re-fixed in a previous occasion. In the normal circumstance, I do not see the need to adjourn for verdict a traffic matter when no complicated point of law is involved and my experience tells me most of the traffic trials involve the finding of facts. There are normally no justifications to further adjourn the matter for verdict.
Day 4 -- The day supposed verdict to be delivered. If there are further issues arising, unless complicated law point is involved, I see no justification to adjourn the matter further.
Day 5 -- If the magistrate finds that the complaint against the unfairness of the prosecutor is devoid of merit, there is no justification to order trial de novo and re-fix the case to another magistrate for a new trial.
Day 6 -- The case is concluded within 1 day by another magistrate. It shows that there is no need for the case to waste Day 4 and Day 5 by the original magistrate. I will analyse it in a moment.
Day 7 -- Appeal heard. The decision may not be delivered on the same day of the appeal because some high court judges like to write the judgement before a decision is announced. In the instant case, the defendant does not have to go to court again for that. There should not be any complaint.
The reader suggests that more resources have to be deployed for training and appointment of more judicial officers to shorten the waiting time and save the defendant from attending court unnecessarily. This is only an outsider's point of view. The judiciary pledges to ensure trial be fixed within 6 to 8 weeks from the first appearance in the magistrate court. My impression is this target is basically met with the appointment of deputy magistrates and deputy special magistrates. The problem does not lie in the manpower, it is in the competence of the people rather. In the case brought up by the reader, Day 4 to Day 6 are actually wasted. The deputy magistrate forgets about the function of the magistrate court. She should be able to deliver the verdict there and then once the trial is concluded. One of the tactics to avoid workload is to prolong trials and adjourn unnecessarily. If you prolong the trial in hand, that means you cannot try other cases. They have to be given to other magistrates to deal with or re-fixed. Without doubt, this can be used to avoid more trials, in the end, more appeals. Some magistrates may just listen to the evidence until noon time and adjourn the case for verdict until 4 pm. In the meantime, all other cases cannot be dealt with and they can pretend to be busy and occupied.
What has gone wrong is the lack of supervision and at the same time there are quite a number of obsequious sycophants. Just like what I said in 升官制度, the crux of the problem. What the boss has to do is to listen to the recording of the trial or sit in court to observe, who is competent and who mediocre, the ability is so obvious.
Hi, I am the "anonymous" who left the comment. Thanks for your feedbacks and I agree with them in principle.
回覆刪除Regarding the trial de novo by the first magistrate, what happened was on the day where the magistrate is supposed to give her verdict (Day 4), I complained about the prosecutor presenting new cases during closing on the day before (Day 3), and this case was not given to me prior to the trial.
Even more aburd to me is, through this case the prosecutor presented during closing, is he told the magistrate for such offence the burden of proof is on me, the defendant.
Eventhough I don't believe so, but assuming it is true where the burden of proof is on me, I told the magistrate it is not fair to me as I would defend myself differently knowing this fact. Secondly I told the magistrate it is not fair for the prosecutor to produce new cases during closing.
The magistrate then said the prosecutor did nothing wrong and I told her if the prosecutor did nothing wrong please give your verdict but I will reserve my right to appeal over this point. At this point the magistrate was quit frustrated and refused to give the verdict she has prepared already and postponed the verdict till the next day.
On the next day (Day 5), the magistrate insisted the prosecutor did nothing wrong and said she would give me a chance to reopen my case (defence case) to give me a fair trial, which I refused.
After several more failed attempts to lure me to reopen my case, the magistrate ordered a trial de novo. The reason given by the magistrate was to give me a chance of fair trial. I then told the magistrate when you beleived the prosecutor did nothing wrong, how would there be unfairness and can you please continue with your verdict, which she just ignored my question despite I asked the same question for several times.
To this point I beleive you would understand why the magistrate ordered a trial de novo and I don't want to state the obvious here.
For my trial with the second magistrate, the transcript is available online, if you are interested to take a look, please let me know how can I send you the link in private.
Thanks for your time in reading and providing your comments.
Anonymous,
刪除Thank you for the further comment. The supplementary information shows the mediocre conclusion is a fair comment. In your last but one paragraph, you mentioned the transcript is available on line. I believe you referred to the appeal judgement written by the high court judge hearing the appeal. It is called 'judgement'. The transcript is the verbatim record of the trial. If you don't mind disclosing your name to me, please send the appeal case number to me i.e. HCMAxxxx/xxxx. I can find it from the Judiciary website. My email address is billlcsiu@gmail.com. I will not discuss your case in the blog which may lead to the disclosure of your identity. I never divulge the identity of my readers if they do not disclose it themselves. I must have read your case before because I read each criminal appeal case when it is posted on line.
Bill