Ngai Yau Wah v. The Queen
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CACC000235/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 235 OF 1980 -----------------
----------------- Coram: Power, J. in Court Date of Judgment: 2 May 1980 ----------------- JUDGMENT ----------------- 1. On 24th January 1980 in the Magistrate's Court at Tsuen Wan one Tin Shun Wong was called upon to plead to a charge of common assault upon the appellant. He denied the charge. The Court record then reads as follows:-
2. The appellant, Madam Ngai Yau Wah, now appeals against this order binding her over. 3. It is not clear what the "Brief Facts", referred to in the record, were, however, I assume that they were the "Brief Facts of the Case" which were as follows:
4. Neither in the record nor, more importantly, in the formal "Certificate of Order" does the Learned Magistrate state the facts from which an inference could be drawn that there was a danger of the appellant's committing a breach of the peace. 5. The order itself was therefore, it seems to me, bad as it did not show jurisdiction on its face. The remarks of Palles C.B. in R. (Boylan) v. Londonderry J.J. (1912) 2 I.R. 374 may well be pertinent in this regard. He there said, at 381,
However, there are other objections to matters in these proceedings which occurred prior to the making of the order which make it unnecessary for me to canvass further the lack of jurisdiction on the face of the order. Let me state at the outset that it was, in my view, quite wrong, in the circumstances, for the prosecuting Inspector to suggest to the Learned Magistrate that he, the Magistrate, should bind over both the defendant and the witness. 6. Having brought a charge of assault against the defendant the prosecutor should, if he considered that the facts warranted not only a conviction for assault but also an order binding him over to be of good behaviour, have preferred a complaint under S.61 of the Magistrates Ordinance and asked that the two complaints be heard together. 7. This having been done the prosecution should have then proceeded to call its evidence in the trial. 8. Even if no S.61 summons had been issued it might well, at the conclusion of the hearing of the assault summons, have been proper for the prosecutor to suggest to the Magistrate that he might like to consider acting under his general power to call upon both the defendant and the appellant to show cause why, in the light of the facts found, each should not be bound over to be of good behaviour. 9. It would then, of course, have been entirely in the discretion of the Magistrate whether he did so act. Even if he had refused to do so it would still have been open to the prosecutor to bring complaints under S.61 against both the appellant and the defendant. 10. Further it is most undesirable that a prosecutor make a suggestion such as this to the Court as a lay person might well be left with the impression that the prosecutor was offering the Court some from of bargain i.e. if the Court summarily bound over both the defendant and the appellant he would not proceed to trouble it further with two hearings. 11. The suggestion having been made the Learned Magistrate should have summarily rejected it and proceeded to hear the charge against the defendant. 12. I wish to make it clear that, in my view, there is no doubt that Magistrates do have a general power, on their own initiative, to bind over persons who appear to them likely to commit a breach of the peace. Whether it comes from the statute Edward III Cap. I, as the Learned Magistrate in the present case thought, or from the common law or from the Magistrates general powers as conservators of the peace, or otherwise the power to make such orders is well established. However as was observed in Reg. (Reynolds) v. Queen's County J.J. (1882) 10 L.R.IR 294 by Fitzgerald, J. at 303,
13. Even had it been proper for the Learned Magistrate to consider the use of his general power at this stage of the proceedings, and it was not, the circumstances were certainly not such as would have warranted its use against either the defendant or the appellant. An order was made against the defendant, although he had denied the charge and had never, as far as the record shows, been called upon to show cause why he should not be bound over. 14. It is true that the appellant was "called upon to say why she should not be bound over" but she was given no indication, as she should have been, as to the conduct which was causing the Magistrate to be concerned that she might thereafter cause a breach of the peace. Indeed, the only allegation that seems to have been made against her, and it could hardly be called an allegation of misconduct, was that she had been in "an argument" prior to the assault over a misunderstanding in the past. It was not suggested that she had exhibited any agression or violence during the argument or thereafter. 15. She understandably took exception to the indication that the Learned Magistrate was considering binding her over and said, inter alia, that she "was the one beaten up". 16. The Learned Magistrate then immediately bound her over. There was in my view nothing either in the facts put forward by the prosecution or in what she herself said to the Court to justify such an order. 17. The Learned Magistrate indicates in his Statement of Findings that he called upon her to show cause because he considered "that there was a real risk of breaches of the peace being initiated by this appellant, whether in revenge for her bruised eye or in furtherance of the original quarrel." I have carefully studied the record and I am unable to find any facts which would justify the conclusion that there was such a risk. 18. The Learned Magistrate went on in his Statement of Findings to say that "Having heard her, it seemed proper to bind her over and I did so". He does not state why he came to this conclusion. Did he disbelieve what she said? It seems hardly likely that he would have as her statement appears to be broadly in accord with the facts as put forward by the Crown. As I have indicated I am unable to find facts anywhere which would justify the drawing of an inference that there was a danger of the appellant committing a breach of the peace. 19. I am satisfied from the foregoing
20. The appeal must be upheld. The order is discharged.
Representation: Mr H. Poon (D.L.A.) for appellant Miss Beeson, Crown Counsel, for respondent |