The Queen v. Choi Yan Kwong

HCMA000679/1988

BETWEEN

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Coram: Hon. Kempster, Hunter & Power JJ.A.

Date of hearing: 16 March 1989

Date of judgment: 16 March 1989

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J U D G M E N T

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Kempster, J A :

1. The Attorney General appeals by way of Case Stated against the purported conviction of the respondent, Choi Yan Kwong, at Sai Po Kong Magistrates Court on 18 May 1988. The matter was reserved to this Court by Ryan J on 20 January 1989 oursuant to section 118(1)(d) of the Magistrates Ordinance (Can 227).

2. Every judge and magistrate swears to "do right to all manner of people after the laws and usages of this Colony without fear or favour, affection or ill will"; thereby affirming the right of an individual accused of crime or involved in civil proceedings to he tried or to have his litigation determined according to law rather than to individual caprice, malice or good intentions, to the yardstick of perceived public opinion, or to the wishes of Government or others wielding power And influence. Even if a person holding Judicial office finds some aspect of the law of Hong Kong distasteful there is no discretion to ignore or override it. For example, a High Court judge conscientiously opposed to capital punishment accepts appointment on the premise that when a jury has brought in a verdict of guilty on a charge of murder, treason or piracy with violence it will fall to him, as to any of his brethren, to pronounce sentence of death regardless of whether such sentence may or may riot be commuted.

3. The history of the matter presently unhappily suggests that the principal magistrate whose disposal of a particular case is impugned was so determined to frustrate what she regards as a policy of delay and procrastination generally adopted those prosecuting on behalf, of the Attorney General that she blinded herself to the demands of her judicial oath as well as to the effect p specific procedural provisions in the ordinance with which she must have beep familiar. As a result she usurped a Jurisdiction not available to her in law. Put in the most charitable light Mrs Marjorie Chui, perhaps over-influenced by the laudable passage on Magna Carta

"We will not deny or defer to any man either justice or right"

allowed her heart to rule her head. The Great Charter also, it may be observed, contains the words

"… nor will we deal with (a free man) … but by lawful judgment of his peers or by the law of the land".

4. Contrary to the advice given by this Court on 20 July 1988 another appeal from the same magistrate, Attorney General v Chong Yuen Wah Magistracy appeal no 1049 of 1987, Mrs Chui can hardly he said to have adopted a dispassionate approach in stating the Case even after it had been amended by Duffy J on 26 October 1988 pursuant to the provisions of section 112 of the ordinance. None the less the relevant facts can briefly be stated. On 17 May 1988 the respondent was arrested. The next day he was brought before the magistrate pursuant to section 52(1) of the Police Force Ordinance (Cap 232) charged under section 10(l) of the Theft Ordinance (Cap 210) with a robbery committed in a public place shortly before his arrest. The amount of money involved was HK$90. The victim was threatened and cut with a knife. The lay prosecutor, representing the public interest in ensuring that those reasonably suspected of wrongdoing should be brought before the appropriate tribunal, asked that no plea he taken and that the respondent be remanded in custody for 3 days to permit an identification parade, material to a different offence, to be held. This was a sensible request having regard to the desirability of an, accused being charged with and standing trial for all offences of which he is suspected at the same time None the less, it was refused. The prosecutor thereupon sought an adjournment of 14 days for heal advice. The magistrate declined to accede to this application also and, in the absence of any further initiative on the part of the Crown, purported to try the case summarily. She accented the respondent's plea of "guilty" and sentenced him to imprisonment for 18 months. No opportunity to secure copies of the respondent's antecedents, if any, was afforded.

5. The offence with which the respondent was charged was indictable within the meaning of sections 2, 71A, and 85(2) but, in certain circumstances, triable summarily pursuant to section 92 of the Ordinance at the magistrate's discretion. That discretion was subject to the terms of section 94A which reads :

"Notwithstanding anything contained in sections 91, 92 or 94 an indictable offence shall not be dealt with summarily, unless the consent of the prosecutor has heen obtained".

There is no ambiguity and the terms of other sections cited in the Case are neither here nor there.

6. From the facts outlined it is apparent that the Crown had not consented either specifically or by implication to the summary trial of the respondent. Consent, invariablly signified, we are toted, by a request from the prosecutor that the plea be taken, as required by section 19(1), will always he entered on the record. It was not so entered in the instant case and hardly could have been having regard to the prosecutor's express application that no plea be taken. No mote had the Crown elected as between the other available choices of having the respondent committed for trial in the High Conrt, to be signified by requiring the appointment of a return day" under section 80A(1), or of applying for a transfer to the District Court under section 88; a step requiring the direct or delegated authority of the Attorney General. In the circumstances of the applications made to her and being well aware that the Crown might need to assess the evidence, procure translations and the respondent's antecedents, which would be germane to the choice of venue, the magistrate should have granted an adjournment of what were, at that stage at least, committal proceedings. The following sections of the Ordinance are material :

"79(1) If in the course of committal proceedings, it becomes necessary or desirable in the opinion of the magistrate –

(a) to defer any stage of those proceedings; ... the magistrate before whom the accused appears or is brought may from time to time by his warrant remand the accused to a prison or, some place of security, for such time as the magistrate may think reasonable, not exceeding 8 clear days, unless the accused and the prosecutor consent to a longer remand or if the remand is for a time not exceeding 3 clear days, it shall be lawful for the magistrate verbally to order the police officer or other person in whose custody the accused may then be, or any other Police officer or person to be named by the magistrate in that behalf, to continue and keen the accused in his custody and to bring him before the same magistrate at the time appointed for continuing the committal proceedings.

93. Where an indictable officence is triable summarily –

(a) the procedure shall, until the magistrate assumes the rower to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence .....".

7. The magistrate's execise of her undoubted judicial discretion to refuse applications for adjournment was perverse and must have involved a failure to take into account the considerations already canvassed and excessive reliance upon the desirability of avoiding delay or upon considerations that were irrelevant. It amounted to an error of law. The purported conviction is a nullity for want of jurisdiction.

8. In summary, I am satisfied that the magistrate erred in law

(1) in refusing to grant the Crown's applications for adjournment; and

(2) in purporting to try the respondent summarily without the consent of the prosecutor.

9. I would direct that the respondent be brought back before a magistrate at San Po Kong as soon as is practicable.

Hunter, JA:

10. I agree with the order proposed by my lord. What happened in this case is quite indefensible.

Power, JA :

11. I also agree with all that has fallen from the President of the Court and from my brother hunter and have nothing to add.

Representation:

A P Duckett & Ada Chung for Crown/Appellant

Alexander King (DLA) for Respondent

W N C Stirling Esq Amicus Curiae