HKSAR v. Bullen Christian Anthony

HCMA 50/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 50 OF 2017

(On appeal from ESS 10982/2016 & 26227/2016)

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BETWEEN

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J U D G M E N T

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1.In this appeal, I am only concerned with two charges against the Appellant.  One is in Case Number ESS 10982/2016 and the other is in Case Number ESS 26227/2016, of being the owner of a local vessel which was not licensed. 

2.The Appellant’s stance is that both charges are time-barred.  The Respondent’s stance is that neither charge is time-barred.

3.On 3 January 2017, a Deputy Magistrate sitting in the Kwun Tong Magistracy ordered that the cases, which are to be heard together, be transferred to Court 1 of that Magistracy for the fixing of trial dates.  Later on the same day, the Magistrate sitting in Court 1 fixed 9 and 10 February 2017 as the trial dates.

4.On 12 January 2017, the Appellant filed in each case a Notice of Appeal against the Deputy Magistrate’s Order of 3 January 2017.  In the Notices of Appeal, the Order appealed against is described as an order that “Time bar matter to be decided at trial”.  The grounds of appeal set out in each Notice of Appeal are that the Deputy Magistrate erred and/or misdirected himself:

(i)    “ when he ordered/determined the time bar issue to be a trial matter”;

(ii)   “ when he ordered a trial of the matter/prosecution that was time-barred.”; and

(iii)  “ in not declining jurisdiction when the prosecution was clearly time-barred and the learned magistrate has no jurisdiction to try the case because the time limit for commencing proceedings has expired.”

5.It is my decision there is a live issue as to whether or not the charges are time-barred.  The Magistrates’ Court has jurisdiction to adjudicate upon that issue, and the occasion for it to do so is the trial.  I say nothing that in any way prejudges how that issue may be determined at the trial or in any appeal thereafter.

6.In the result, this appeal is dismissed.

Mr Derek Wong, SPP of the Department of Justice, for the Respondent

The Appellant appeared in person