Coram: Barker, J.
Date of Judgment: 13th February, 1981.
1. In this matter the appellant Chan Kwong Nam appeals against his conviction and indeed against his sentence in respect of a chargeof having aided and abetting an illegal immigrant to remain in Hong Kong without the authority of the Director of Immigration.
2. A number of grounds of appeal have been raised. It is unnecessary for me to deal with most of them in view of the course which Ipropose to take. The appellant was jointly charged with a man called Wong Chun Kit but when the appellant appeared at his trial,Wong Chun Kit did not and in fact he did not answer to his bail. Perhaps unfortunately the matter was not thereupon adjourned. Theappellant gave evidence was disbelieved was convicted and was sentenced to a term of imprisonment. Subsequently Wong Chun Kit wasarrested. He appeared at the San Po Kong Magistracy and pleaded guilty and he was said on an affirmation and also said in the courtbefore he was sentenced that the present appellant knew nothing about the offence. And in those circumstances this appellant nowwishes to call Wong Chun Kit as a witness. I was not prepared to hear Wong Chun Kit’s evidence myself. I think that would be a wrongcourse to adopt because I have not had the benefit of hearing any of the other witnesses for the prosecution nor for the appellant.The trial judge having heard the prosecution witnesses and the appellant accepted the evidence of the prosecution witnesses. Butit may be, I do not know, that had he heard the evidence of Wong Chun Kit his decision might have been different. In these circumstancesit seems to me that justice demands that I should order a retrial. I appreciate that this may cause some difficulties for the prosecutionsince the illegal immigrant has now returned or been returned to China. Nevertheless having looked at the evidence it seems to methat the prosecution without her evidence has sufficient to establish a prima facie case against the appellant if the magistratechooses to believe it.
3. In these circumstances, and I make no criticism whatsoever of the learned magistrate who tried this case, I consider that the orderI should make and the order I do make is that this matter be retried and I therefore order a retrial. I order that the appellantbe released on bail on the same terms as he has been on bail and I order that Wong Chun Kit who I am told has been produced fromprison in court before me today be returned to prison and I am much obliged to counsel.
A. Sedgwick (Hastings & Co.) for appellant
Miss Crabtree for Crown/Respondent