Attorney General v. Cheung Chun Chung

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 156 OF 1973

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Coram: Pickering, J.

Date: 12 April 1973

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JUDGMENT

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1.  This is a case stated by a magistrate upon the application of the Attorney General.

2.  The respondent pleaded not guilty to a charge of obtaining property, namely four diamonds valued at $160,000, by deception, and a date was set for the hearing of the charge.  Upon the hearing date the Crown applied for an adjournment upon the grounds that the main prosecution witness was in Japan; the application being resisted by the solicitor for the respondent, the matter was stood down until 2:30 of the same day when the Crown entered a nolle prosequi.  The learned magistrate said that he had no option but to accept the nolle prosequi but expressed the view that it was entered as a device to defeat an anticipated refusal of the application for an adjournment; the magistrate characterised the nolle prosequi as being most unfair on the respondent but added that there was little he could do about it except to be wiser in the future.  He thereupon discharged the respondent and, on the application of the respondent’s solicitor, made an order for payment of costs by the Crown in the sum of $500 purporting to act under s.69(1) of the Magistrates Ordinance, Cap.227.

3.  At the outset I would say that it was unfortunate that the magistrate expressed the view which he did as to the reason for the entry of the nolle prosequi.  It is the undoubted right of the Attorney General, as representative of the Crown in matters of criminal jurisdiction, to enter a nolle prosequi; such entry is a constitutional prerogative of the Crown entrusted to the Attorney General who, of his own responsibility, determines whether a prosecution shall go on or not.  It has long been recognised that mischief might arise if there were to be any serious contest between a court and the Attorney General in regard to his undoubted discretion in this matter (see Reg. v. Allen^([1])).

4.  The issue which arises is whether or not the learned magistrate acted within his jurisdiction in making the order for payment of costs by the Crown.  Section 69(1) of the Magistrates Ordinance, Cap.227, under which he purported to act, reads:

“In every case of summary conviction or of an order made by a magistrate, except as provided in section 71, it shall be lawful for the magistrate making the same to award and order in and by the conviction or order that the defendant shall pay to the complainant or informant respectively such costs as to him may seem just and reasonable in that behalf, but not in any case exceeding five hundred dollars; and in any case where the magistrate, instead of convicting or making an order as aforesaid, dismisses the complaint or information, it shall be lawful for him, in and by his order of dismissal, to award and order that the complainant or informant respectively shall pay to the defendant such costs as to him may seem just and reasonable, but not in any case exceeding five hundred dollars.”

5.  It will be observed that the reference there is to “a dismissal” of the complaint or information.  The section of the Magistrates Ordinance which gives power to the public prosecutor to withdraw a case is s.15 and subsection (1) thereon reads:

“In any case before a magistrate in which a defendant is being tried for any offence and at any stage thereof before judgment and in any case in which an inquiry is being held by a magistrate for the purpose of determining whether an accused should be committed for trial, the Attorney general may enter a nolle prosequi by informing the magistrate in writing that the Crown intends that the proceedings shall not continue, and thereupon the accused shall be at once discharged in respect of the charge for which the nolle prosequi is entered, and if he has been committed to prison shall be released, or if on bail his recognizances shall be discharged; but such discharge of an accused person shall not operate as a bar to any subsequent proceedings against him on account of the same facts.”

6.  It will be observed that the reference of this section is not to “dismissal” of the complaint or information but to “discharge” of the accused in respect of the charge for which the nolle prosequi is entered.

7.  It is well-known that a nolle prosequi is distinct from, and has not the same effect as, offering no evidence and submitting to acquittal.  The effect of a nolle prosequi is that all proceedings on the charge are stayed and the defendant, if he is in custody, is discharged but may be proceeded against afresh on the same charge, (see Halsbury’s Laws of England 3rd Ed. Vol. 10 p.721 and Archbold 37th Ed. para.721).

8.  Section 19 of the Magistrates Ordinance, Cap.227, governs proceedings at the hearing and subsection 2 thereof provides that

“The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.”

9.  Here, again, as in s.69(1) there is a reference to “dismissal” of the complaint or information but not to the “discharge” of the defendant as in s.15(1), which subsection accords with the general common law position, the effect being to discharge the defendant but to preserve the right to proceed against him again.

10.  Mr. Duckett, who appeared for the Crown upon the hearing of the case stated, drew my attention to one case in which the terms “dismissed” and “discharged” had been equated.  That was the case of Rex v. Essex Justices; Ex parte Churchill ^([2]). The difficulty in that case arose because under s.25 of the Indictable Offences Act 1848, when justices were of the opinion that the evidence was insufficient to put an accused upon his trial for any indictable offence, they had to order the accused, if in custody, to be “discharged”.  The conflict was with s.6(3) of the Costs in Criminal Cases Act 1908 which provides:

“Where a charge made against any person for any indictable offence (not dealt with summarily) is dismissed by the examining justices, the justices may, if they are of opinion that the charge was not made in good faith, order the prosecutor to pay the whole or any part of the costs incurred in or about the defence . . .”

11.  Despite the reference to dismissal in this latter subsection it is apparent that under s.25 of the Indictable Offences Act 1848 there was no power to “dismiss” the charge but only to “discharge” the accused.  The court was impelled to the conclusion that “dismiss” in that context meant “discharge” because to discharge was all that a court, if it did not commit for trial, could do in connection with an indictable offence which it was trying summarily, that is, the court was not empowered to dismiss the information but only to discharge the accused.

12.  In the present instance no such consideration arises because the learned magistrate had no such limitation of his jurisdiction up to the time the nolle prosequi was entered.  The interpretation adopted in the Churchill case was essential to give the provision in the Costs in Criminal Cases Act any meaning at all, whereas s.69 of our Magistrates Ordinance has a straightforward operation and effect whenever an information is dismissed, and there is no need to strain to give it some effect and meaning.  It refers to a situation in which the information is dismissed rather than to one where the accused is discharged.

13.  The case of Churchill may be said to highlight the distinction between “dismiss” and “discharge”.  The court fully recognised the distinction and equated the two terms only because of the canon of interpretation which required them to give some meaning to the loose statutory wording employed by the draftsman in s.6(3) of the Costs in Criminal Cases Act 1908.

14.  In the present case I am unable to equate the term “discharge” in s.15(1) of the Magistrates Ordinance with the word “dismissal” in s.69(1) thereof and, in my view, the answer to the question posed by the learned magistrate which was

“The question of law arising on the above statement for the opinion of this court therefore is, did I act erroneously in point of law or in excess of my jurisdiction in awarding the sum of $500.00 costs against the police by virtue of section 69, sub-section (1) of the Magistrates Ordinance (Chapter 227)?”

must be yes.  It follows that the order for payment of costs by the Crown must be discharged.

Duckett, S.C.C., for Appellant.

Respondent absent.

([1]) Law Jnl. 1862 Vol. 31 129

([2]) 1933 L.T.R. Vol. 148, 498.