HKSAR v. Tsoi Kei Lung and Another

HCMA000340/2000

HCMA340/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.340 OF 2000

(ON APPEAL FROM ESCC 3613/1998)

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Coram: Hon Gall J in Court

Date of Hearing: 4 May 2000

Date of Judgment: 24 May 2000

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J U D G M E N T

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1. The appellants have been charged with various offences, contrary to the Trade Descriptions Ordinance and the Copyright Ordinance.

2. On 9 March 2000, the parties came before Mr C.R. Mackintosh, a magistrate at Eastern Magistracy. That date was the return day for summonses which had been issued against the appellants and a company and others who are not involved in this appeal. On the return day, submissions were made by counsel for the appellants that the magistrate had no jurisdiction to hear summonses on the ground that they were invalidly issued and that they were bad for duplicity.

3. On 10 March 2000, the magistrate ruled on the submissions and ruled the summonses valid and not duplicities. The appellants were put to election and elected to have a preliminary enquiry pursuant to section 80C(1) of the Magistrates Ordinance, and the committal hearing was set down for eight weeks commencing on 3 July 2000. Other defendants to the summonses, the company (the 1st defendant) and further defendants (the 4th to 6th defendants) have already been committed to the Court of First Instance for trial without preliminary enquiry. The appellants now appeal the ruling by the magistrate that the summonses before him not be struck out for want of jurisdiction and that some of the summonses were bad for duplicity.

4. There is no need for me to go into the facts which have given rise to these charges. The only issue for me to decide is whether or not I have jurisdiction to hear an appeal from a magistrate's ruling made in the course of a committal proceedings. The only avenue of appeal from the magistrates court is pursuant to statutory provision and that provision is to be found at section 113 of the Magistrates Ordinance, Cap.227, which provides :

" (1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connection with an offence either party thereto may appeal from such order or determination of such magistrate to a judge."

5. In this case, there has not been a plea of guilty, nor has there been the hearing and determination of any complaint or other proceedings which a magistrate has power to determine in a summary way. The only section, therefore, that can apply in respect of this appeal is section 113(1). The matter has been considered in R. v. Cheung Chi Keung [1986] HKC 653 where Roberts CJ said (at 655) :

" I accept the argument that s 113 is intended to give a right of appeal to the High Court against a conviction, order or determination of a magistrate only at the conclusion of proceedings before him. It cannot have been intended to be used to overturn rulings or determinations reached in the course of the trial and before its conclusion. The only way of challenging interim rulings is by way of judicial review."

Further, in R. v. Taj Malook and Another [1992] HKLR 209, O'Connor J held (at 212) :

".... it could not have been intended that every incidental decision or order of a magistrate could be immediately taken on appeal before the proceedings had terminated, with all the fragmentation of the proceedings and practical problems that would thereby arise."

He further went on to say (at 213):

".... It is the finality of the proceedings that matters, that is whether the issue in the proceedings has been determined or adjudicated upon. We are not concerned with whether the task of the magistrate, whose role is in itself only concerned with an interlocutory matter, has been determined, but with the ultimate decision in the case; ...."

and, further (at 214) :

".... The committal order is interlocutory in a real sense and does not fall within s. 113 of the Ordinance. ..."

6. I have no difficulty, in respect of the appeal before me, in holding that the decisions made by the magistrate on the return day of the summonses where matters necessary to the proper conduct of the committal proceedings were heard and were for the purposes of those committal proceedings, that any decision made or the nature made in this case by the magistrate were in the nature of interlocutory decisions. I equally have no difficulty in holding that section 113(1) of the Magistrates Ordinance does not apply to interlocutory decisions of a magistrate but only to final determination of the substantive matter before him.

7. I rule, therefore, that I have no jurisdiction to hear this appeal and I decline to do so.

Representation:

Mr Daniel Fung, SC, leading Mr Dominic Yeung, instructed by Messrs George Tung, Jimmy Ng & Valent Tse, for the Appellants

Mr Ian McWalters, SADPP and Miss Maggie Yang, SGC, for HKSAR