Background 1. The Appellant, Mr Leung, was charged with an offence contrary to section 35J(5)(b) of the Personal Data (Privacy) Ordinance, Cap 486. The prosecution case was that Mr Leung had provided the personal data of his old schoolmate, Mr Lei, to an insurance agent, Ms Tam, for use by her in direct marketing. The personal data in question was Mr Lei’s name and telephone number. Without taking the statutorily prescribed actions before providing that data, such as obtaining Mr Lei’s consent, Mr Leung’s action constituted the said offence. 2. Mr Leung was convicted after trial by a magistrate. He was unrepresented throughout the trial. He testified on his own behalf but called no witness. At the conclusion of all the evidence, counsel for the prosecution made a closing speech, part of which dealt with factual issues in relation to Mr Leung. 3. At trial, Mr Leung raised the question of law as to whether the prosecution was entitled to make a closing speech in the circumstances of the trial. The magistrate ruled that the prosecution was so entitled. On appeal, the Court of First Instance upheld the magistrate’s ruling. The issue for the determination of the Court of Final Appeal is whether the prosecution has a right to a closing speech in a criminal trial in the magistracy where the defendant is unrepresented and, apart from giving evidence himself, has not called any witnesses. Decision of the Court of Final Appeal Question of Law 4. It has consistently been a rule of practice in Hong Kong that where, in criminal trials, a defendant is unrepresented and calls no witnesses apart from giving evidence himself, the prosecution does not have the right to make a closing speech. That practice followed a long-established practice in England and Wales, though there have been some changes recently to that rule in some of their courts. 5. However, a decision of the Court of Appeal in 1988 (R v Au-yeung Tat-shing [1988] 1 HKLR 1) held that that rule did not apply to criminal trials in the magistrates courts. In so deciding, the Court of Appeal relied on section 19(2) of the Magistrates Ordinance which provides that a magistrate shall decide a criminal case “having heard what each party has to say”. The Court of Appeal said that that meant that each party to a trial has a right to a closing speech. Both the magistrate and the Court of First Instance in Mr Leung’s case followed this ruling and the Respondent supported it, saying that the rule applied only in the Court of First Instance and the District Court. 6. The Court of Final Appeal held that R v Au-yeung Tat-shing was wrongly decided and should no longer be followed. The Court held that the legislature could not have intended by the broad phraseology of section 19(2) to undo the rule of practice especially when the rule in question was designed to provide fair procedural protection for defendants and where the rule was addressed with great clarity whenever other statutes dealt with rights of address. The Court held that section 19(2) does not address rights to a closing speech and does not confer such a right upon the prosecution in the case of an unrepresented defendant who, apart from giving evidence himself, has not called any witnesses. It was sufficiently clear that the reference to “having heard what each party has to say” referred back to earlier parts of the proceedings. Disposal of this Appeal 7. It followed that in the present case, the fact that the prosecution had made a closing speech before the magistrate was a material irregularity. However, that material irregularity did not, in the instant case, affect the fairness of the judicial process as a whole because, in this case there was an appeal to the Court of First Instance at the hearing of which the Court of First Instance had access to materials by which it could test and form its own view of the strength of the prosecution case and the reliability of the defence case and at which hearing, importantly, the defendant had the benefit of legal representation. 8. In the circumstances although Mr Leung succeeded in demonstrating that there had been a procedural error based on the decision in R v Au-yeung Tat-shing, he had not succeeded in showing that that error infected the fairness of the process as a whole. 9. Accordingly, the Court upheld the conviction and dismissed Mr Leung’s appeal.