HKSAR v. Chan Lok Man, Norman

Case No.DCCC 763/2020[2021] HKDC 240

Court

District Court

Date05 Mar 2021

Judge—

Case Document

100%Judiciary

DCCC 763/2020

[2021] HKDC 240

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 763 OF 2020

________________________

	HKSAR
	v
	CHAN Lok-man, Norman

________________________

Before: His Honour Judge W.K. Kwok

Date of Hearing: 5 March 2021

Date of Decision: 5 March 2021

Date of Reasons for Decision: 12 March 2021

________________________

REASONS FOR DECISION

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1.The defendant is charged with 3 counts of homosexual buggery with a man under the age of 16, contrary to section 118C(b) of the Crimes Ordinance, Cap. 200. These charges were transferred to the District Court by the order of a magistrate made on 23 September 2020 pursuant to section 88(1)(a) of the Magistrates Ordinance, Cap. 227.

2.The defendant first appeared in the District Court on 6 October 2020 to answer to these charges. He has not yet entered his plea.

3.By a Notice of Motion dated 23 December 2020 and supported by the affirmation of Mr Chan Ka-lok Michael, Government Counsel of the Department of Justice, filed on 24 December 2020, the Secretary for Justice applies for an order that the proceedings herein are to be transferred to the Court of First Instance pursuant to section 77A of the District Court Ordinance, Cap. 336.

4.The defendant opposes the application.

5.After hearing submissions from the parties, I dismiss the application with reasons to be given in writing. Here are the reasons.

The Application

6.The prosecution applies for the 3 charges against the defendant to be transferred to the Court of First Instance on the ground that it is uncertain whether or not the District Court has the jurisdiction to hear and determine these charges because it is uncertain whether or not the learned magistrate has the jurisdiction to make the order transferring these 3 charges to the District Court, and that for the sake of avoiding the issue of lack of jurisdiction to be raised in the District Court now or in the higher courts in the future, it will be in the interests of justice, as well as for the benefits of all parties concerned, for all charges to be transferred to the Court of First Instance for adjudication since the Court of First Instance possesses unlimited jurisdiction.

Transfer of charges to and from the District Court

7.According to sections 74 and 75(1) of the District Court Ordinance, the District Court has jurisdiction to hear and determine those charges that are transferred to it by a magistrate “in accordance with the provisions of Part IV of the Magistrates Ordinance”.

8.Part IV of the Magistrates Ordinance deals with transfer of certain indictable offences by a magistrate to the District Court. Part IV contains sections 88 to 90. Section 88(1)(a) provides that “whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule”, the magistrate shall, upon application made by or on behalf of the Secretary for Justice, make an order transferring the charge or complaint in respect of the indictable offence to the District Court.

9.There are 8 categories of indictable offences set out in Part III of the Second Schedule to the Magistrates Ordinance. The second category refers to “any offence which is punishable with imprisonment for life” with a number of exceptions specified therein.

10.In other words, if the charge is for an indictable offence punishable with imprisonment for life and it is not within the exceptions specified, a magistrate will have no jurisdiction to order its transfer to the District Court. A transfer ordered by a magistrate without jurisdiction will render the proceedings in the District Court a nullity: HKSAR v Tang Siu Kwong & Another[1].

11.After the transfer or purported transfer of charges from the magistrates’ court to the District Court, the Secretary for Justice may apply to the District Court for an order to transfer the proceedings to the Court of First Instance (or to the magistrates’ court to be tried summarily, as the case may be) pursuant to section 77A(1) of the District Court Ordinance. Sections 77A(1), (2) and (3) stipulate when the application shall be made and what procedures are to be followed.

12.Section 77A(4) provides that the district judge to whom an application is made under section 77A(1) may either allow or refuse the application “if he considers it fit having regard to the interests of justice”, and may make such order as to costs as he considers appropriate.

The subject offence

13.The offence of homosexual buggery with a man under the age of 16 is created by the statute under section 118C of the Crimes Ordinance (“section 118C”). As it appears at this moment in the statute book, section 118C is in the following terms:

“A man who—

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for life.”

14.Section 118C in its statutory form has therefore created two offences, i.e. (a) homosexual buggery with a man under the age of 16, and (b) homosexual buggery by a man under the age of 16, and the maximum sentence for each of them is identical, i.e. imprisonment for life.

15.Since an offence under section 118C in its statutory form is punishable with imprisonment for life and it is not within the specified exceptions, the learned magistrate would have no jurisdiction under section 88(1)(a) of the Magistrates Ordinance to order the transfer of these 3 charges to the District Court.

16.It is however common ground between the parties that the courts will not interpret section 118C according to its statutory form. The parties agree that since the decisions given by Mr Justice Au (as he then was) in Yeung Chu Wing v Secretary for Justice[2] on 30 May 2019 and by the Court of Appeal in HKSAR v Yeung Ho Nam[3] on 25 September 2019, the provisions of section 118C have to be given the following remedial interpretation so as to make them consistent with the Basic Law and the Hong Kong Bills of Rights (“BOR”):

“A man who—

(a) commits buggery with a man under the age of 16; or

(b) being under the age of 16 commits buggery with another man,

shall be guilty of an offence and shall be liable on conviction on indictment to (a) imprisonment for life if the buggery is committed with a boy under the age of 13; or (b) imprisonment for 5 years if the buggery is committed with a boy under the age of 16 but is of or above the age of 13.”

17.According to these decisions, section 118C in its statutory form has infringed the right to equality before the law under article 25 of the Basic Law, and the right to equal protection of the law under article 22 of the BOR because it differentiates between homosexual intercourse and heterosexual intercourse. First, it criminalizes a man aged under 16 for committing buggery with a man, whereas no criminal liabilities will be imposed on a man aged under 16 for having sexual intercourse with a female. Second, under section 118C in its statutory form, a man committing buggery with a man aged under 16 is liable to imprisonment for life, whereas a man having unlawful sexual intercourse with a girl aged under 16 but not less than 13 is liable to imprisonment for 5 years only under section 124 of the Crimes Ordinance. Section 118C in its statutory form is therefore unconstitutional and will be struck down unless it is given the above remedial interpretation.

18.Despite its statutory form, section 118C has therefore been interpreted by the courts to have created only one offence, namely, a man committing buggery with a man under the age of 16, but provided the maximum sentence in two limbs: (a) imprisonment for life if the victim is under the age of 13, and (b) 5 years’ imprisonment in other cases.

19.According to the summary of facts, the defendant committed buggery on 3 occasions with the same victim who was at the material times aged under 16 but over 13. Hence, the maximum sentence that may be imposed on the defendant for each charge is 5 years’ imprisonment according to the remedial interpretation of section 118C by the courts.

The issue and submissions

20.The issue, as raised by the prosecution, is whether or not the current case law and the statute have left it ambiguous as to whether the District Court has jurisdiction to hear and determine these 3 charges.

21.The prosecution stresses that it has no qualms with the fact that the maximum sentence of the subject offence is read down to 5 years’ imprisonment “as a matter of case law”, but submits that “the essence of the remedial interpretation of Yeung Chu Wing rests on how the provisions and the maximum sentence of the subject offence shall be treated in a gender neutral manner by the Courts as a matter of practice, rather than an authority overriding the need of a legislative amendment, or a strict guideline onto the selection of venue of trial”.

22.The prosecution takes the view that it is not the intention of the Courts to override the need for legislative amendment by the remedial interpretation in Yeung Chu Wing, and that the remedial interpretation is only meant to render the subject offence constitutional in future cases by providing equal treatment to homosexual males. On the other hand, up to this moment, there has been no legislative amendment to section 118C which remains an offence punishable with imprisonment for life according to the statute book.

23.The prosecution considers that it is at least ambiguous as to whether or not legislative amendment is required to stipulate that the maximum sentence for a man committing buggery with a boy under the age of 16 but of or over the age of 13 is 5 years’ imprisonment instead of imprisonment for life. On this basis, it must also be ambiguous whether the learned magistrate has the jurisdiction to transfer and the District Court has the jurisdiction to hear and determine the 3 charges against the defendant. Hence, it will be in the interests of justice to transfer these charges to the Court of First Instance which has unlimited jurisdiction.

24.The defence disagrees with the prosecution. It submits that it is impossible for the decisions in Yeung Chu Wing and Yeung Ho Nam to be overturned now because the remedial interpretation is in fact proposed by the Secretary for Justice, accepted by the Court of Appeal, and beneficial to any defendant who may be charged with the subject offence. Citing re Spectrum Plus Ltd.[4] and HKSAR v Hung Chan Wa & Another[5], the defence submits that it is well-established under the common law that a judgment determining a legal question operates retrospectively as well as prospectively. Hence, ever since the decision in Yeung Chu Wing, the law has been changed, and the maximum sentence for each charge that may be imposed on the defendant is only 5 years’ imprisonment. Hence, each of the 3 charges against the defendant is no longer for an offence punishable with imprisonment for life, and can be properly transferred by the learned magistrate to the District Court which has the jurisdiction to hear and determine these charges. The defence stresses that the 3 charges against the defendant are in fact prepared by the prosecution according to the remedial interpretation of section 118C by the courts.

25.The defence also argues that if the prosecution’s application is granted, it will be another unequal treatment against homosexual males because a man having unlawful sexual intercourse with a girl aged between 13 and under 16 may have his trial heard in the District Court, but a man committing unlawful buggery with a boy also aged between 13 and under 16 will be barred from this venue of trial.

Discussion

26.Under article 63 of the Basic Law, the Department of Justice of HKSAR shall control criminal prosecution, free from any interference. Hence, the prosecutorial choice of venue of trial is not subject to judicial control unless truly exceptional circumstances exist such as the Secretary for Justice has been acting outside her constitutional powers: RV v Director of Immigration[6], Chiang Lily v Secretary for Justice[7].

27.However, it is clear that the prosecution’s unfettered right to choose venue of trial is not engaged in the determination of this application. The prosecution does not say that this case should be heard in the Court of First Instance for reasons like the sentencing power of the Court of First Instance is greater than that of the District Court. It makes the application just out of abundance of caution to remove any possibility that the proceedings against the defendant might be held to be a nullity in the future. Since the application is made pursuant to section 77A of the District Court Ordinance, this Court is at liberty to allow or refuse the application, having regard to “the interests of justice”.

28.As to whether or not the District Court has jurisdiction to hear and determine the 3 charges against the defendant, the deciding factor is whether each one of them is for an offence punishable with life imprisonment. If it is, it is not excepted from the second category of offences in Part III of the Second Schedule to the Magistrates Ordinance.

29.If the judicial remedial interpretation of section 118C in Yeung Chu Wing and Yeung Ho Nam prevails over section 118C in its statutory form, a man committing buggery with a boy under the age of 16 but of or above the age of 13 will be liable to imprisonment for 5 years at the most. If so, the learned magistrate will have jurisdiction to transfer and the District Court will have jurisdiction to hear and determine the 3 charges against the defendant. If not, neither the learned magistrate nor the District Court will have jurisdiction to perform their respective functions. The prosecution takes the view that it is ambiguous as to which view is correct, and in the absence of legislative amendment of section 118C to incorporate the judicial remedial interpretations into the statute, the safest course to take is to have the 3 charges to be heard by the Court of First Instance which has unlimited jurisdiction.

30.Having considered the submissions, I am of the view that the alleged ambiguities as perceived by the prosecution do not exist because since 25 September 2019 when the Court of Appeal delivered its decision in Yeung Ho Nam, section 118C can only exist in the laws of the HKSAR according to the remedial interpretation given to it by the courts, and any parts of section 118C in its statutory form that are not consistent with that remedial interpretation have become invalid. I find that such changes to section 118C are brought about by the courts when they perform their constitutional role under the Basic Law to ensure that section 118C are Basic Law-compliant as well as BOR-complaint, and that no legislative amendment is required to be made to section 118C to effect these changes. To explain this finding, it is necessary to understand the constitutional role played by the courts of HKSAR.

31.First, the courts of HKSAR have a positive duty to ensure that the laws they are applying are consistent with the Basic Law because no legislation, subsidiary legislation and the common law may contravene the Basic Law: see articles 8, 11 and 18 of the Basic Law. If such laws contravene the Basic Law, it is the duty of the courts to declare them invalid. In Ng Ka Ling & Others v Director of Immigration[8], Li CJ made the following authoritative statements in relation to the constitutional jurisdiction of the courts in HKSAR and the proper approach to follow in the interpretation of the Basic Law:

“ The Region is vested with independent judicial power, including that of final adjudication (art. 19(1)). The courts of the Region at all levels shall be the judiciary of the Region exercising the judicial power of the Region (art. 80).

In exercising their judicial power conferred by the Basic Law, the courts of the Regions have a duty to enforce and interpret that law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid at least to the extent of the inconsistency. Although this has not been questioned, it is right that we should take this opportunity of stating it unequivocally. In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.”[9] (Italics for emphasis).

32.Second, while the courts of HKSAR will defer to the Legislature which is in the better position to assess the needs of society whenever it passes legislation, there are limits to this margin of appreciation accorded by the courts to the Legislature, and the courts are under a duty to strike down any unconstitutional legislation. In Leung v Secretary for Justice[10], Ma CJHC (as he then was) said:

“ There are, however, limits to the margin of appreciation that can be accorded to the Legislature. Where there is an apparent breach of rights based on race, sex or sexual orientation, the court will scrutinize with intensity “the reasons said to constitute justification”: see Ghaidan v Godin-Mendoza [2004] 2 AC 557 at p.568 (para.19) per Lord Nicholls of Birkenhead. Where the court does not see any justification for the alleged infringement of fundamental rights, it would be its duty to strike down unconstitutional laws, for while there must be deference to the Legislature as it represents the views of the majority in a society, the court must also be acutely aware of its role which is to protect minorities from the excesses of the majority. In short, the court’s duty is to apply the law; in constitutional matters, it must apply the letter and spirit of the Basic Law and the Bills of Rights.”[11] (Italics for emphasis).

33.Third, when any legislation is found to be unconstitutional, the courts should endeavour to give it a remedial interpretation so as to uphold the validity of the legislation, and it is only when it is not possible to do so should the legislation be struck down. In doing so, the courts are not legislating, but just making it possible for the existing legislation to continue with its operation, even though it may be in a reduced or an altered form. In HKSAR v Lam Kwong Wai & Another[12], Sir Anthony Mason NPJ had the following to say:

“77. Courts have traditionally, and for very good reasons, been reluctant to engage in what may be seen as legislative activity. That is why, in earlier times the courts stopped short of engaging in remedial interpretation which involves the making of a strained interpretation. The justification for now engaging in remedial interpretation is that it enables the courts, in appropriate cases, to uphold the validity of legislation, albeit in an altered form, rather than strike it down. To this extent, the courts interfere less with the exercise of legislative power than they would if they could not engage in remedial interpretation. In that event, they would have no option but to declare the legislation unconstitutional and invalid. Indeed, it can be safely assumed that the legislature intends its legislative provision to have a valid, even if reduced, operation than to have no operation at all, so long as the valid operation is not fundamentally or essentially different from what it enacted.”[13] (Italics for emphasis).

34.Fourth, when the courts engage in remedial interpretation of any legislation found to be unconstitutional so as to give it validity, the court may employ the well-known techniques of severance, reading in, reading down and striking out. Hence, the legislation after remedial interpretation might appear in a reduced or an altered form in accordance with the following principles of remedial interpretation summarized by the Court of Appeal in Keen Lloyd Holdings Ltd. v Commissioner of Customs and Excise[14], and followed by Au J (as he then was) in Yeung Chu Wing:

(a)  Subject to the limitations in (c) and (d) below, the court can exercise the power of remedial interpretation to depart from the unambiguous meaning of the legislative provision in order to give a Basic Law-compliant effect to the same;

(b)  In adopting a remedial interpretation, the court can interpret language in a statutory provision restrictively or expansively. It can also read in word which change the meaning of the provision;

(c)  However, the court cannot adopt a meaning inconsistent with a fundamental feature of the legislative scheme or its essential principles. Whether an element in the statutory provision constitutes a fundamental feature or essential principle must be determined with regard to its place in the overall scheme of the legislation;

(d)  Remedial interpretation does not empower the courts to make decisions for which they are not equipped such as choosing between various options which requires legislative deliberation or adopting a meaning which has important practical repercussions which the court is in no position to evaluate.

35.Fifth, the power of the courts in HKSAR to give remedial interpretation to a statutory provision in order to give it validity derives from the Basic Law as Sir Anthony Mason NPJ has explained in Lam Kwong Wai[15]. The power is conferred impliedly by the Basic Law upon the courts of HKSAR. The following passages in the judgment are particularly relevant:

“67.  The next question is: does the Basic Law confer on the courts a power of remedial interpretation? The Basic Law established this Court as the Court of Final Appeal of the HKSAR and invested it, in common with the other courts of the Region, with the judicial power of the HKSAR (arts.8, 11, 18, 19, 80, 85, 158 and 160). That judicial power is independent judicial power (arts.19 and 85). The jurisdiction of the HKSAR courts extends to all cases in the HKSAR, except that restrictions imposed by the legal system and principles previously in force shall be maintained (art.19(2)). …

68.  The Basic Law neither sets out the powers of the courts nor the remedies which they may grant. ….”

“70.  The grant of judicial power and, for that matter, the investing of jurisdiction in a court, carry with them all those powers that are necessary to make effective the exercise of judicial power and jurisdiction so granted. “Necessary”, in this context, means “reasonably required” … These powers will include power to grant and employ such remedies as may be appropriate. …”

“73.  In the context of the Basic Law, which arms the HKSAR with a modern constitution including entrenched rights and freedoms, the concept of judicial power necessarily includes the making of remedial interpretations in the sense already discussed. It is recognized as an incident of the exercise of judicial power in other jurisdictions.”

“78. Accordingly, I do not accept the argument against implying a power in the Basic Law to enable the courts of the Region to make remedial interpretation of legislation to ensure that it is Basic Law-consistent. The arguments which have been discussed are in essence sound arguments why a court should exercise extreme caution in the exercise of its powers rather than arguments that such a power should not be implied at all. The Court must proceed on the footing that the courts of the Region, including this Court, possess all necessary powers to deal with all manner of questions which may legitimately arise in connection with the interpretation and enforcement of the provisions of the Basic Law, including their impact on Hong Kong legislation. It follows that the implied powers of this Court include the obligation to adopt a remedial interpretation of a legislative provision which will, so far as it is possible, make it Basic Law-consistent. Only in the event that such an interpretation is not possible, will the Court proceed to make a declaration of contravention, entailing unconstitutionality and invalidity.

79. This implied obligation extends to making a legislative provision BOR-consistent because art.39 of the Basic Law gives constitutional force to the ICCPR provisions “as applied to Hong Kong” by the BOR and provides that they “shall remain in force”. Article 39 goes on to provide that any restrictions on BOR rights and freedoms shall not contravene art.39(1).”

36.With this understanding of the constitutional role played by the courts of HKSAR, it will be easy to explain why I dismiss this application by the prosecution.

37.The courts of HKSAR have a positive duty and obligation to scrutinize whether or not section 118C as enacted by the Legislature is Basic Law and BOR-compliant. The courts in Yeung Chu Wing and Yeung Ho Nam have conducted the scrutiny exercises. Both courts hold that section 118C in its statutory form has infringed the right to equality before the law under article 25 of the Basic Law, as well as the right to equal protection of the law under article 22 of the BOR. Section 118C in its statutory form is therefore liable to be struck down for its unconstitutionality, and this is the position despite the margin of appreciation accorded to the Legislature by the courts.

38.Before the courts declare section 118C invalid and strike it down, the courts in performing the constitutional role are under a duty to give section 118C a remedial interpretation, if possible, so as to uphold the validity of the legislation. This is what the courts in Yeung Chu Wing and Yeung Ho Nam have done. They have given section 118C the remedial interpretation in the form set out in paragraph 16 above. The techniques of striking out, reading down and reading in have been employed in this remedial interpretation: striking out the offence of homosexual buggery by a man under the age of 16, reading down the maximum sentence to 5 years’ imprisonment in the case of homosexual buggery with a boy under the age of 16 but of or above the age of 13 while maintaining life imprisonment as the maximum sentence for homosexual buggery with a boy under the age of 13; and reading in additional words to specify the punishment in two limbs. In so doing, certain part of section 118C in its statutory form has been reduced, while other parts have been altered and expanded. It is not only permissible but also mandatory for the courts when discharging their duties to apply the law to interpret section 118C in this manner so as to make it Basic Law and BOR-compliant and the validity of the legislation can be upheld.

39.As to the validity of such remedial interpretation to section 118C, upon the reasons explained by Sir Anthony Mason NPJ, it is clear that the courts in Yeung Chu Wing and Yeung Ho Nam have the power impliedly conferred upon them by the Basic Law to engage in such remedial interpretation. In other words, the judges have the power from an independent source bestowed upon them by the Basic Law to give section 118C the necessary remedial interpretation, even if in so doing, they have repealed certain part of the statutory provision and amended the other parts. Such remedial interpretation is valid and binding because the judges are equipped with the power to do so by the Basic Law, which is the highest law in HKSAR. Hence, it is not necessary to go through any legislative process in the Legislature to incorporate or validate the remedial interpretation of section 118C by the courts. The prosecution’s concern that legislative amendment to section 118C might be required to bring about the effect of the judicial remedial interpretation is unfounded.

40.It is not disputed that under the common law, a judgment determining a legal question including interpretation of a statute operates both retrospectively and prospectively. Under the doctrine of stare decisis, Yeung Chu Wing being a decision of a court of first instance has only persuasive value, but Yeung Ho Nam being a decision of the Court of Appeal is binding on all lower courts until it is overturned. Hence, the remedial interpretation given by the Court of Appeal to section 118C in Yeung Ho Nam on 25 September 2019 must have become part of the laws in HKSAR from that day onwards. This must also be the understanding of the prosecution at the time when the charges are laid against the defendant. As it appears on the charge sheet, in each of the 3 charges, the statement of offence is described as “homosexual buggery with a man under the age of 16, contrary to section 118C(b) of the Crimes Ordinance”. The prosecution could not have referred to section 118C in its statutory form because section 118C(b) in the statutory form refers to homosexual buggery by a man under the age of 16. The prosecution is clearly referring to the remedial interpretation given by the courts to section 118C as set out in paragraph 16 above, where section 118C(b) refers to a man committing buggery with a man under the age of 16 shall be guilty of an offence and shall be liable on conviction on indictment to imprisonment for 5 years if the buggery is committed with a boy under the age of 16 but is of or above the age of 13.

41.It must also be right to point out that it is inconceivable that the decision in Yeung Ho Nam will be overturned by the Court of Final Appeal. So long as a man having unlawful sexual intercourse with a girl under the age of 16 but of or above the age of 13 is liable to only 5 years’ imprisonment under section 124 of the Crimes Ordinance, there cannot be any basis for exposing a man committing homosexual buggery with a boy under the age of 16 but of or above the age of 13 under section 118C to imprisonment for more than 5 years without infringing the constitutionality of the legislation.

42.For the above reasons, I find that at the time when the learned magistrate orders the 3 charges to be transferred to the District Court, there is only one offence under section 118C, namely, a man committing buggery with a man under the age of 16, and that there are two limbs to the maximum punishment, namely, life imprisonment for homosexual buggery with a boy under the age of 13, and imprisonment for 5 years for homosexual buggery with a boy under the age of 16 but of or above the age of 13.

43.Hence, I find that each of the 3 charges against the defendant is for an indictable offence but not punishable by imprisonment for life, and is therefore not included in Part III of the Second Schedule to the Magistrates Ordinance. It follows that the learned magistrate has the jurisdiction to order the 3 charges to be transferred to the District Court under section 88(1)(a) of the Magistrates Ordinance, and the District Court has the jurisdiction under sections 74 and 75 of the District Court Ordinance to hear and determine these charges.

44.As there is no ambiguity about the jurisdiction of the District Court in hearing and determining these charges, I see no reason why the defendant should be sent to the Court of First Instance to answer the prosecution. It is noted that the prosecution has originally brought the charges against the defendant in the magistrates’ court, and that it is only upon the concern raised by the presiding magistrate as to whether the case should be heard in the magistrates’ court in light of its limited power that the prosecution applies for transfer of the charges to the District Court. The charges have by now been properly transferred to the District Court. There is therefore no good reason to order the defendant to hop over to another court. All in all, I find that it will not be in the interests of justice to order these charges to be transferred to the Court of First Instance for disposal. I therefore dismiss the application.