Whitney Gill Newton v. Ernest Edward Walker
Read the full judgment text of CACC 218/1975 on BabelCite. This Court of Appeal judgment.
1. I held that I had no jurisdiction to entertain this appeal and, the point being of importance, I now amplify the brief reasons for so holding which I gave in court.
|
CACC000218/1975 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 218 OF 1975 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 3rd April, 1975. ----------------- JUDGMENT ----------------- 1. I held that I had no jurisdiction to entertain this appeal and, the point being of importance, I now amplify the brief reasons for so holding which I gave in court. 2. The history of the attempted appeal is that on 20th August 1974 two separate informations were sworn by two gentlemen called respectively Walker and Bailey, Mr. Walker is the respondent in this appeal. Both informations related to precisely the same facts and alleged precisely the same offence, namely the making, by the appellant, on oath, of contradictory statements, contrary to s.39 of the Crimes Ordinance (Cap.200). 3. On the same date, 20th August 1974, two separate summonses were issued pursuant to the two informations; the learned magistrate before whom the summonses eventually came on, was of the opinion that only one summons should have been issued in respect of the two informations filed and that the issue of two summonses was a procedural error. 4. When the appellant first appeared in answer to the two summonses, his solicitor raised objection to the apparent duplicity thereof and the learned magistrate in the plea court intimated to the informants, Messrs. Walker and Bailey, who were unrepresented, that proceedings should continue under one summons only. Both summonses were then adjourned for hearing in another court in which court the appellant entered pleas of not guilty to each summons. Thereupon Mr. Bailey indicated that he would offer no evidence on his particular information with the result that the court dismissed the charge levelled under that information and acquitted the appellant thereof. After that order was made Mr. Walker, the present respondent, was invited to proceed on his information but, before he commenced to adduce evidence, the appellant entered a plea of autrefois acquit by virtue of the dismissal of the summons issued upon Mr. Bailey's information. The learned magistrate subsequently ruled that the plea of autrefois acquit failed and it is against that ruling that the appellant endeavours to appeal. 5. The foundation for the attempted appeal is to be found in s.113(1) of the Magistrates Ordinance (Cap. 227) which reads:
6. It was a consideration of this subsection which led me to doubt my jurisdiction to entertain the appeal and, the respondent being unrepresented, I raised this matter of my own motion with Mr. Charles Ching, Q.C., counsel for the appellant, and referred him to certain authorities which appeared to me to be more or less pertinent. My doubt was as to whether the subsection authorised any appeal at an interlocutory stage of a criminal proceeding before a magistrate. 7. Mr. Ching, in seeking to assert jurisdiction in the court, contrasted the language of s.113(1) with, on the one hand s.105 and on the other hand s.113(3). Section 105 has reference to appeals by way of case stated and s.113(3) to appeals in civil proceedings before a magistrate. It is sufficient to say that both the section and the subsection provide in clear language that the appeals contemplated thereby can arise only after a hearing and determination by a magistrate. No such similar specific language appears in s.113(1) which fact, Mr. Ching argued, indicated that the subsection did in fact contemplate appeals upon interlocutory matters. 8. Why equally clear language as that employed in s.105 and in s.113(3) - both of which contain the words "after the hearing and determination" - was not employed in s.113(1) I do not know but I am quite sure that the subsection was not intended to open the floodgates to appeals on interlocutory matters in magistrates' courts. It is Mr. Ching's contention that the word "determination" in s.113(1) is not to be read ejusdem generis with the preceding words "conviction, order or". In Reg. v. Chan Yuk Chun(1) Huggins, J. said:-
9. With that observation Mr. Ching says that he cannot disagree. Again in Chan Foo v. Reg.(2) it was held that an appeal by way of case stated under s.103 (now s.105) of the Magistrates Ordinance does not lie against a decision on a preliminary objection. If that be the case it is difficult to see the principle whereby an appeal under the alternative procedure provided by s.113 should lie against such a decision. In the Chan Foo case it was held that the words "other proceeding" must be construed ejusdem generis the words "complaint, information" and "charge" which preceded them. Going one step further, in Reg. v. The Magistrate Kowloon(3) it was decided that not only the phrase "other proceeding" but the amplified phrase "determination or other proceeding" in what is now s.105 must be construed ejusdem generis the preceding words "conviction or order". 10. The last two mentioned cases were both concerned with what is now s.105. A case concerning the very section with which we are concerned, s.113, was Chai Kwan Sing v. Reg.(4). In that case, Briggs, J., as he then was, held that the word "order" in the phrase "conviction, order or determination" fell to be construed ejusdem generis the word "conviction" so that the "orders" there referred to meant orders consequent upon conviction, i.e. orders, in the words of the section "in connection with the offence" and not orders in connection with the trial of the offence. In that case the order sought to be appealed was the refusal of an adjournment. 11. Mr. Ching concedes that "order" in s.113(1) means an order after conviction. But if the word "order" has to be construed ejusdem generis "conviction", why must not also the subsequent word "determination" be so construed? It has been held that this is so where the same phrase arises in s.105 and I can see no reason for adopting a different construction in s.113. 12. Counsel contends that the word "determination" must relate to something which has preceded conviction and argues that what follows conviction are "orders" but not "determinations". A determination, he says, is a mental process leading up to conviction or acquittal. In one sense so it is, but there are other "determinations" which do in fact follow conviction and it is this type of determination which is referred to in s.113(1). As an example, where a magistrate finds the offence proved but decides, in exercise of his power under s.36 of the Magistrates Ordinance to give the offender an absolute discharge, his next task is to decide whether or not any conviction shall be recorded. If he decides that a conviction should be recorded, he makes no order but simply reaches the mental "determination" to let the ordinary process of registration take its course. 13. I am far from saying that s.113(1) might not have been more clearly expressed but reading that subsection as a whole and in the context of other forms of appeal, I am fully satisfied, and hold, that it is not the intention of the subsection to permit appeals upon interlocutory matters arising in magistrates' courts. Were it otherwise appeals would proliferate like mushrooms at dawn to the impediment of the disposal of the work of the criminal courts. 14. The appeal fails for want of jurisdiction. 15. That is not to say that the magistrate's ruling upon the plea of autrefois cannot be challenged. But the time has not yet arisen and will not arise unless and until the appellant is convicted upon the charge which he faces. I direct that the papers be returned to the learned magistrate and the charge heard. Representation: Charles Ching, Q.C. and A. Sakhrani (J.S.M.) for appellant. Respondent in person. (1) (1965) H.K.L.R. 693 @ 698 (2) (1958) H.K.L.R. 349 (3) (1959) H.K.L.R. 91 (4) Cr. App. 505/68 unreported. |