Clifford Wong Chun-fai v. Attorney General
Read the full judgment text of CACV 43/1977 on BabelCite. This Court of Appeal judgment.
2. Such was the factual and legislative background to the applications to the Full Bench.
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CACV000043/1977
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----------------- Coram: Pickering, J.A., Li & Cons, JJ. Date of Judgment: 7th November, 1977. ----------------- JUDGMENT ----------------- Pickering, J.A.: These appeals are from the dismissal by the Full Bench of applications for Orders of Certiorari. The factual background to the applications was lucidly set forth by the Full Bench in giving its reasons for dismissal and I take the liberty of reproducing that factual account before proceeding to a consideration of the arguments advanced to us on the appeals:-
2. Such was the factual and legislative background to the applications to the Full Bench. 3. In an earlier attack upon the system of criminal trial in the District Court (see The Queen v. Wong King Chau and Others (1964) D.C.L.R. 941) it was contended that the District Court Ordinance (then No. 1 of 1953), providing as it did for the trial of indictable offences by a judge sitting without a jury, was to that extent null and void. In the present case Mr. Leggatt does not go so far but contends that the common law right to trial by jury is not incompatible with the power given to the Attorney General to apply to a Magistrate for transfer of a case to the District Court; the two, counsel urges, can co-exist by treating the Attorney General's power to seek transfer as operable only in the event that the accused person consents or does not object to the transfer. The common law right to trial by jury, the argument continues, is not by necessary implication destroyed by section 88 of the Magistrates' Ordinance so that the Court must say that it subsists; only if the common law must die to give effect to section 88 would the Court say that the common law right had been abrogated. 4. If the section be read in vacuo there may be some colour of accuracy in the argument but it is wholly impossible to read the section in vacuo. It has to be read and construed against the background of the jurisdictional changes which were simultaneously introduced into the Courts. 5. When a community, through its Legislature, radically alters the structure of its Courts and, as a corollary to so doing, provides by a new section of an established enactment, the exclusive machinery whereby criminal cases shall reach a newly constituted Court itself obviously the subject of a wholly new contemporaneous enactment, it is idle to attempt to construe that transferal section of the existing enactment without reference to the all-pervading shift in juridical competence enshrined in the new legislation. The scheme of the legislation was clear and fragmentation of interpretation has no part in that scheme. That, I believe, must be the principle and applying it to the facts of the present case, whereas in 1953 the former Magistrate's Courts, the Supreme Court and the Full Court remained in existence there came into being, at a level between the Magistrate's Courts and the Supreme Court, a completely new jurisdictional tier in the form of the District Court in which, by the very constitution of the Court, there was no room for a jury. It was to this Court that transfer of cases from the Magistrate's Courts was contemplated and the section providing for mandatory transfer of indictable offences upon the application of the Attorney General contained no saving clause, nothing to the effect that the Attorney General must consult the wishes of the accused and nothing giving the accused any right of objection to the transfer. The discretion as to whether to apply for transfer was invested solely in the Attorney General and, upon his exercising that discretion by electing for transfer, the obligation to transfer lying upon the Magistrate was absolute. The scheme of the legislation was clear beyond a peradventure and it entailed, with equal clarity, the deprivation of the former common law right to trial by jury. 6. Mr. Leggat would have it that there is no necessity for his client to elect for trial by jury since he enjoys the right to such trial and could only be put to election by statute. For the reasons I have given it appears to me that there is no right to election and no right to trial by jury and that result has not been arrived at by what Mr. Leggatt terms "a sidewind" but by the unambiguous pattern of the legislation. It is not, with respect, correct to say that the right to trial by jury has not been taken away by either the District Court Ordinance or the Magistrates' Ordinance. Certainly it has not been wholly taken away but it has so been taken by the former Ordinance in the case of any criminal charges which are brought in the District Court whilst the latter Ordinance provides the mandatory machinery for transferring to that court such cases as the Attorney General in his unfettered discretion determines to prosecute there. 7. If support be needed for this view - and in my opinion none is - it is to be derived from section 19 of the Interpretation and General Clauses Ordinance (Cap. 1) which provides that every Ordinance
8. As we pointed out in Mirchandani v. The Queen(1) the "fairness" at which a Court must aim is not fairness in the result of the interpretation but fairness in the interpretation, that is to say, not fairness in according a trial by jury to an accused who would prefer that mode of trial but fairness in interpreting section 88 of the Magistrates' Ordinance in the context of the new structure of the Courts. I find it impossible to import into section 88 any right of objection on the part of an accused person or any inhibition of the Attorney General's right to apply for transfer to the District Court of any indictable offence not included in any of the categories specified in Part III of the Second Schedule to the Magistrates' Ordinance. 9. As it seems to me the case of Leach v. Rex(2) which Mr. Leggatt called in aid, is nothing to the contrary for section 4 of the Criminal Evidence Act, 1898, which there fell for interpretation contained only the permissive "may" in regard to the spouse of an accused being called to give evidence; the section was therefore held to deal only with competence and not compellability. Section 88(1)(a) of the Magistrates' Ordinance employs the verb "shall" which at once distinguishes it from the Leach v. Rex situation. At most that case can be relied upon for the undisputed proposition that if a common law right is to be overturned it must be overturned by a clear and positive enactment. For the reasons I have given I consider section 88 of the Magistrates' Ordinance, construed in the only context in which it is permissible to construe it, so to be clear and positive. And where that is so and the effect is to abrogate a common law right it is unnecessary to say in so many words that that is what is being done. Example exist in the various presumptions which arise under the Dangerous Drugs Ordinance (Cap. 134) the effect of which is to transfer the burden of proof to the accused upon the balance of probability. 10. I find those grounds of appeal which allege that the Full Bench was wrong in not allowing the applications because the Attorney General's motive in seeking transfer to the District Court lay in the expectation that it would be easier to obtain a conviction before that Court than before a jury, completely without merit and having had the advantage of reading what will shortly be said by my brother Cons upon that topic, I do not think that I can usefully add to his remarks. 11. There remains a ground of appeal which relates only to the applicant David Lam Shu-tsang. It is to the effect that the Full Bench of the High Court having ruled that the magistrate was wrong in thinking that he had no discretion in respect of the transfer of a summary offence to the District Court under section 88(1)(b) of the Magistrates' Ordinance, was wrong in holding that "had the magistrate been aware of his discretion in relation to the 'summary charge' he would in the exercise of that discretion have undoubtedly ordered that the 'summary charge' should be tried in the same manner and at the same time as the other charges." In my view the Full Bench was undoubtedly right; I can think of no other course which the learned magistrate might reasonably have taken and I am unable to agree that it was wrong for the Full Bench to exercise its discretion on behalf of the learned magistrate. To have returned the matter to him would have been a costly exercise in futility. 12. I would dismiss the appeals. The respondent asks for only one set of costs and is entitled to that. We are given to understand that the parties are prepared to attempt to agree the costs. So be it but if the attempt fails the costs must be taxed. Representation: Leggatt, Q.C., Patrick Yu and K. Kwok (Peter Mo & Co.) for Clifford WONG Chun-fai, appellant. Martin Lee and Philip Lee (P.H. Sin & Co.) for David LAM Shu-tsang, appellant. B. Caird for respondent. (1) Cr. App. 266/1977. (2) (1912) A.C. 305. IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 42 OF 1977 (ON APPEAL FROM M.P. 242 OF 1977) -----------------
----------------- CIVIL APPEAL NO. 43 OF 1977 (ON APPEAL FROM M.P. 276 OF 1977) -----------------
----------------- Coram: Li, Pickering J.A. and Cons, JJ. Date of Judgment: ----------------- JUDGMENT ----------------- L.J. These are appeals from the decision of the Full Bench which dismissed the application by the appellants Clifford Wong and David Lam for orders of certiorari to quash the order made by a magistrate to transfer several charges of indictable offences and one charge of a summary offence to the District Court. The facts leading to the appellant's application have been clearly put in the judgment of the Full Bench and delivered by my brother Leonard J. I shall not venture to repeat them. Nor shall I repeat the grounds of this appeal which are set out in the Notice of Appeal. 2. Suffice it to say that the main point for consideration is whether the common law right of an accused person, charged with an indictable offence, to a trial by judge and jury has been abrogated by the statute law in this Colony. Learned counsel for the appellants have argued forcefully that it has not. There is no need to refer to all the authorities cited to us in detail. The case of Reg. v. Wong King Chau (1964) District Court Law Reports 94 merely confirmed that for indictable offences an accused has the common law right of trial by jury and the merit of a trial by jury in the circumstances. However the whole case was argued and decided on the basis that for a trial in the District Court the right of an accused to trial by jury had been extinguished. The learned judge, as he then was, said at page 114:
3. The point considered in Reg. v. Tseng Ping-yee (1969) H.K.L.R. is more similar to the question now before us. It was argued in that case that Section 2 of the Criminal Evidence Ordinance 1906 (re-enacted in Section 54 of the then Criminal Procedure Ordinance Cap. 221) which made an accused person a competent witness in his own trial without providing for his right to make an unsworn statement from the Dock had by necessary implication abrogated his right to take the latter course. By majority, the then Full Court rejected this argument. Mills-Owens J. said at page 328:
4. At page 334, Huggins J. as he then was, said:
The principle I understand from this case is that where the Ordinance confers a new right on an accused person it is not to be construed as taking away his established right without express or unequivocal words. The same guidance obtains in the case of Leach v. Rex (1912) A.C. 305. I only need to refer to the short judgment of Lord Halsbury at page 310 in which he said:
5. The question whether an accused person's common law right to trial by jury has been abrogated in the case before us depends on the construction of the provisions in the Magistrates Ordinance Cap. 227 and those of the District Court Ordinance Cap. 336. Sections 88, 89 and 90 of the Magistrates Ordinance provide:
6. Section 6 of the District Court provides:
7. It is strongly contended that Section 88 of the Magistrates Ordinance contains no provision to abrogate the common law right of the appellants. As such the Full Bench should have allowed the application. It is further contended that the Full Bench has misdirected its mind to an irrelevant question viz:
8. With due respect to the Full Bench the aforesaid passage by itself might give an impression that it was considering whether trial before a judge alone against the wishes of the person accused is a trial in accordance with law. However, the judgment of the Full Bench went on to say at page 9:
9. Having considered the provisions of the aforesaid Ordinances and the authorities cited I am in agreement with the conclusion of the Full Bench subject to a slight difference. In my opinion the right to trial by jury is taken away by the combined effect of the provisions of the Sections 88, 89 and 90 of the Magistrates Ordinance as well as Section 6 of the District Court Ordinance. So far as indictable offences are concerned the magistrate's duty to transfer the charges to the District Court (where no jury trial is provided for) upon the Attorney General's application is mandatory. Section 89 provides for a stay of proceedings before the Magistrate pending transfer. Once an order of transfer is made proceedings before the magistrate touching the charge are stayed. I construe this as meaning that there should be no committal proceedings a prerequisite for a jury trial in the High Court. Section 90(1)(c) provides that the magistrate is to inform the accused of the effect of such order of transfer. I have no doubt that one important effect of which the accused should be informed is the provisions in Section 6 of the District Court Ordinance. It is true that there is no express provision in the Magistrates Ordinance to deprive an accused person's right to trial by jury. But there are clear provisions to oblige a magistrate, upon the Attorney General's application, to transfer the case to the District Court where a judge sits without a jury and such transfer operates to stay further proceedings before the magistrate. There is no appeal from such order of transfer and the application is at the discretion of the Attorney General. The language is neither ambiguous nor equivocal. Looking at the provisions of the Ordinances the intention of the Legislature is clear. The point which comes under consideration is quite different from those in the cases of Tseng Ping-yee and Leach. 10. Putting it another way, I can find no error in law or in fact on the face of the record in the order of transfer. The A.G. was exercising his right conferred by law and the Magistrate made the order under a duty imposed by law. On the other hand the applicants are relying on their common law right. I am of the opinion that this common law right had been abrogated by the necessary implication of the provisions in the Ordinances unless I can read into Section 88 of the Magistrates Ordinance the extra words : "the A.G.'s application is conditional upon the appellant's consent or acquiesance". I find no justification to do so. 11. In passing I like to add that I come to this conclusion not without some misgivings. For myself, I feel strongly in principle, against the prosecution being given the sole and absolute right to choose the forum. This is not done in England in respect of indictable offences. In this day an age when the executive is wielding more and more power one safeguard is that an absolute power conferred upon an executive in matters concerning the administration of justice should be made subject to judicial review at the instance of the person affected. The right to choose the forum of trial here is so one sided that it does not seem to be in accord with the maxim that justice must be seen to be done. However I realise that my function is to administer the law as it stands despite my personal feelings. If what I observe makes sense to others the remedy lies with the Legislature in which there is no shortage of legal luminaries. Having said this I feel constrained to say that the appellant's appeal on the first three grounds of appeal must fail. 12. The second point is whether, in the circumstances of the case, the Full Bench should interfere with the Attorney General's application by inferring that he was acting unfairly especially when the A.G. declined to give reasons for his application. The background of this case and the law applicable thereto have been dealt with adequately in the judgment of the Full Bench. I agree with their conclusion. 13. As to the interference with the A.G.'s exercise of discretion I respectfully adopt Lord Upjohn's observation in Padfield and Others v. The Minister of Agriculture, Fisheries and Food and Others (1968) A.C. 997. At page 1058 he said:
The A.G. has given no reason for his exercise of his right to apply for a transfer. It is not for us to rule arbitrarily that he has acted unfairly only because he gives no reason. In this connection one must see the background of this case together with the circumstances in which the District Court Ordinance (giving such discretion to the A.G.) was enacted. The District Court Ordinance was enacted in 1953 at a time when committal proceedings for indictable offences were often long and protracted. Further delay would be caused by having to fit in two court diaries. The Magistrates Ordinance giving the A.G. the power to apply for a transfer to the District Court had at least the merit of saving time and expenses even though such measure brought on the unfortunate result that the A.G. was allowed to choose the forum. In exercise of this power I cannot consciously say that the A.G. has taken a course which is contrary to the intention of the Legislature so as to warrant our interference. 14. It is also contended that the A.G. in fact, had exercised his discretion on the 4th April 1977. At that time he had not heard the representation of the appellants. His letter dated the 6th April 1977 merely stated that having considered representations by counsel for the appellants he would not seek to withdraw his application. As such the exercise of his discretion must be related back to the 4th April 1977. The circumstances in this case are very similar to those in Chan Ching-cheung v. The Queen Criminal Appeal No. 600 of 1976. In that case the Appeal Court held that a flat given by the A.G. to initiate proceedings against the appellant before he received full explanation was invalid and as a result the trial was a nullity. The logical conclusion is that this case is on all fours with the Chan Ching-cheung case in which Huggins J.A. said:
15. I do not find the letter dated the 6th April 1977 makes any difference. By its own terms the A.G. has not made a new application after he had considered the representations. He merely persisted in his former application. On this ground it may be said that orders of certiorari should issue to quash the order of transfer for want of jurisdiction because the application was made before the A.G. considered the appellant's representations. However, it is appreciated that prerogative orders are in the discretion of the Court. Even if the present order of transfer is quashed there is nothing to prevent the A.G. making a new application. For this reason I am not inclined to quash the order of transfer on a technical irregularity. 16. Having made my observations aforesaid it remains for me to say that the 4th and 5th grounds of appeal must also fail. 17. The last point to be considered is whether the Full Bench, having found that the magistrate was wrong in thinking that he had no discretion in respect of the transfer of a summary offence to the District Court, was wrong in exercising that discretion in place of the magistrate. As to this point the judgment of the Full Bench said at page 7:
Before this Court however, Mr. Lee for the appellant Lam takes up this point. In the case of Reg. v. Southampton Justices (1972) 1 W.L.R. 277 the Divisional Court in England refused to exercise the discretion on behalf of the justices who failed to exercise it. The Lord Chief Justice even refused to give any guideline for the exercise. At page 280 he said:
18. Order of certiorari and order of mandamus are both prerogative orders and are discretionary. On my part I am inclined to follow the Divisional Court of England. There is a difference between quashing the order of transfer on the ground that the A.G.'s application was invalid and the quashing of the said order because the Magistrate erred in law. Indeed both have the effect of rendering the order of transfer a nullity. However, in the former case it is reasonably certain that the A.G. may persist with his application. In the latter case I cannot anticipate the exercise of the magistrate's discretion. The provisions in Section 66(1) of the Criminal Procedure Ordinance give a discretion to the trial judge when a person is committed for trial through error. It is not a discretion given to the Full Bench which is not hearing the merit of the case. There being an error on the face of the record I am of opinion the appeal in respect of this point relating to the summary offence must be allowed. 19. In summary, I would dismiss the appeals against the decision of the Full Bench dismissing the appellant's application for orders relating to the indictable offences but allow the appeal against the dismissal of the order relating to the summary offence. Representation:
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----------------- Coram: Pickering, J.A., Li and Cons, JJ. Date of Judgment: 7th November 1977. ----------------- JUDGMENT ----------------- Cons, J.: I too would dismiss the appeals. But as matters of some importance have been raised I think it appropriate that I should outline the paths by which I have arrived at my conclusions. 2. Let me say at once that I accept without hesitation the submission that no statute is taken to deprive a man of his liberty or established rights or privileges unless it does so with clear words. This principle is well established. Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, does not detract from it in any way. At the same time, however, I am not persuaded that in order to do so the legislature is bound to use any particular set form of words. It is sufficient, as the learned editor of Maxwell on The Interpretation of Statutes puts it (12th edition p.116), that the legislature "expresses its intention with irresistible clearness". 3. As I understand the argument before us the appellants do not complain that trial in the District Court would as such deprive them of their right to be tried by a jury. Their complaint is against something which happened before that, namely the application of the Attorney General to transfer their case to that court; that application could not be refused, so that the automatic effect was to take away their common law right. They say that the legislation has not given the Attorney General power to do that against their wishes. 4. The legislation in question is what is now section 88 of the Magistrates Ordinance, Cap. 227. I will not read it again. It became law nearly twenty-five years ago as an integral part of the legislation which then created the District Court. This was a major step in the judicial history of Hong Kong. A completely new level of jurisdiction was to be established, with new procedures on both the civil and criminal sides. On the latter side trial was to be by a judge sitting alone without a jury, although the judge was on each occasion to place on record the reasons for his verdict. There were to be no prior committal proceedings before a magistrate. Instead there would be a simple transfer upon application by the Attorney General. There was no provision for the defendant or anyone else to make application. Or to object. The magistrate was given no discretion in the matter and appeal against his order to transfer was expressly excluded. It was a comprehensive scheme of legislation. What is now section 88 was part of it. I do not for my own part find it ambiguous. I do not find it "capable of being construed in different ways", as Earl Loreburn L.C. found the legislation that faced him in Rex. v. Leach(1). To my mind it is clear that by that section the legislature deliberately intended, when setting up the new court, to give to the Attorney General alone the right to decide which criminal cases should be dealt with before it. In doing so the legislature overturned to some extent a right deep seated in the common law. But I am satisfied that they did so by the "clear, definite and positive" legislation that Lord Atkinson demanded in the same case. I should add that I find no assistance in the comparison drawn between the mandatory nature of paragraph (a) and the discretionary nature of paragraph (b). Paragraph (b) was not part of the original legislation. It was added later to meet certain difficulties that were found to arise in practice. 5. A second point is whether we should interfere with the choice that the Attorney General has actually made in this particular case. It is settled now that a court can interfere in such matters and will do so if the choice is being made unfairly by taking into account extraneous matters or failing to consider matters which should properly be considered: In re H.K. (An infant)(2) and Chan Ching-cheung v. Reg.(3). The error need not necessarily be apparent from the reasons given by the person responsible. In appropriate circumstances the court will interfere even where no reasons are given. This was said in Padfield and Others v. Minister of Agriculture, Fisheries and Food and Others(4). One quotation will suffice. At p.1053G Lord Pearce said this:
6. In the present instance the Attorney General has not given any reason and it is said that all the considerations point so clearly in favour of jury trial that we should infer that he has no good reason, that he has acted solely in the belief that a jury will be more likely to acquit the appellants than will a single judge. 7. The considerations suggested are these:
8. It is also pointed out that there are no particular features which would make the charges pre-eminently suitable for trial by a judge alone. 9. The wishes of a particular defendant may of course vary from case to case. But apart from this it seems to me with every respect to counsel that the other considerations urged are not particularly individual. They could be urged in most of the cases that come regularly before the District Court. The weight given to them will depend to a large extent upon what view is held generally as to the advantages of trial by jury. On the other hand the District Court provides a system which is swift and convenient in comparison with trial on indictment following committal proceedings. The Attorney General would certainly bear this in mind in the public interest. Taking all in all I am of the opinion that the circumstances do not point so irresistibly towards trial by jury that it must be inferred that the refusal of such trial was necessarily made from an improper motive. 10. It is also briefly argued that the initial application on the 4th April effectively disposed of the whole matter as far as the Attorney General was concerned, either because he would thereafter be unable dispassionately to consider the submissions made on behalf of the appellants or alternatively that he thereby exhausted the one and only opportunity given to him by the legislation. The first ground presupposes a degree of irresponsibility that I find impossible to accept and it was not, I think, seriously pressed. As to the second ground it is common practice to seek and be given leave to withdraw applications of all kinds. I see no reason to make an exception here. In my opinion the Attorney General was entitled to reconsider and if he thought fit to come back at any time before his application to the magistrate had been acted upon. The position is not quite the same as in Chan Ching-cheung v. Reg.(3) where there was no question of reconsideration. 11. I wish to add nothing on the final point which was raised only in respect of David Lam except to say that I agree with the conclusion of the learned President. Representation: Leggatt, Q.C., Patrick Yu and K. Kwok (Peter Mo & Co.) for Clifford Wong Chun-fai, appellant. Martin Lee and Philip Lee (P.H. Sin & Co.) for David Lam Shu-tsang, appellant. B. Caird for respondent. (1) [1912] A.C. 305 at 310 (2) [1967] 2 Q.B. 617 (3) Cr. App. No. 600 of 1976 (4) [1968] A.C. 997 |