Ko Chun Pong and Another v. The Queen

CACC000213/1982

BETWEEN:

Coram: Roberts, C. J. (in Chambers)

Date: 23 March 1982

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D E C I S I O N

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[Application in writing under Section 114A of the Magistrates Ordinance.]

1. The first applicant was convicted of manufacturing and distributing, and the second applicant of selling, an unregistered pharmaceutical product, contrary to the Pharmacy and Poisons Regulations.

2. The applicants were convicted on 3rd February, 1982 and fined $2,500 and $1,000 respectively. The fines were paid on the same day.

3. Notice of Appeal was despatched by the solicitors for the applicants on 4th February, 1982 and received in the Magistrates Court on 5th February.

4. The appeal was thus entered within the period of 14 days after conviction, permitted by section 114(a) of the Magistrates Ordinance (Cap. 227). The magistrate supplied a copy of his statement of findings to the applicants on the 24th February.

5. Section 114(c), however, provides that the applicants shall, within 10 days after the day on which the notice of appeal was given -

"enter into a recognizance in the sum of $250, unless a magistrate otherwise orders, conditioned to prosecute his appeal with diligence, to abide by and duly perform the order of the judge or of the Court of Appeal and to pay such costs as may be awarded by the judge or by the Court of Appeal."

6. The applicants failed to enter the recognizance within the permitted period, due to an oversight by their solicitor. On 26th February, the latter wrote to the magistrate, asking him either -

(a) to exercise his discretion not to require a recognizance; or

(b) to extend time under section 114A(1), to file an appeal out of time.

The magistrate, through his clerk, replied that he was of the opinion that -

7. I do not disagree with the magistrate's conclusion that he cannot dispense with the requirement for recognizances when the 10 day period had elapsed. What is the effect of such failure?

8. Without the benefit of argument on the matter, I consider that a failure to comply with the mandatory provisions of section 114(c) must have the effect of stultifying the appeal. If this were not so, they could be ignored with impunity.

9. I also agree that the power to extend the time for an appeal, contained in section 114A, arises only if there has been a failure to enter an appeal within the time allowed by section 114(a).

10. There is, however, a way round the impasse, which I am inclined to adopt, since I would prefer not to see the client lose his chance of appeal because of an error by his solicitor in what is essentially a formal requirement.

11. If I am correct in concluding that the present appeal is nugatory, by virtue of the applicants' failure to enter recognizances, it would be open to them to apply to me, or to the magistrate, under section 114A for an extension of time to enter a fresh notice of appeal.

12. If such an application came to me, I would be prepared to grant it.

13. I add, for future consideration, that I wonder if the requirements for recognizances or security, contained in sections 110 (with regard to a case stated) and section 114(c) are necessary. They appear to erect procedural hurdles of little practical use.

14. If the applicant fails to observe a judge's order, he will be in trouble without any need for a recognizance. If he has to pay costs, a recognizance of $250 is hardly realistic. And if he doesn't prosecute his appeal, he will be the loser.