Chan Kam Chau and Another v. The Queen

Case No.CACC 273/1971

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000273/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.273 OF 1971.

-----------------

BETWEEN
	CHAN KAM CHAU	Appellants
	TSENG KIU TING
	and
	THE QUEEN	Respondent

-----------------

Coram: Huggins, McMullin and Pickering, JJ.

Date of Judgment: 28th September, 1971.

-----------------

JUDGMENT

-----------------

Huggins, J.: This case originally came on before a Court of two judges and has been referred for re-hearing by a Court of three judges under s.4(4) of the Full Court Ordinance. The Applicants seek leave to appeal against the sentences imposed upon them by a judge of the Supreme Court. However, the first question raised on their behalf is whether there have been any lawful conviction and sentence at all. Counsel for the Crown has submitted that for reasons which I will set out hereafter this question cannot arise upon an appeal against sentence: he has therefore invited us to treat this as an appeal against conviction and thereupon to apply the proviso to s.81(2) of the Criminal Procedure Ordinance. Attractive as this argument may be from a practical point of view, we are satisfied that it cannot be sustained, because what is said to be defective is not merely the conviction but also the committal upon which that conviction was based. If the committal was bad we think its validity can as properly be challenged on an appeal against sentence as on an appeal against conviction. Moreover, in our view the proviso cannot be used to uphold a conviction in a case where there has been no lawful committal at all.

2. The matter arises in this way. In the magistrate's court the two Applicants were charged jointly with two other Defendants on a number of charges of robbery from banks. All four Defendants, before any evidence had been led, pleaded guilty to those charges in which they were named. Charges of robbery were not, of course, triable summarily but, by virtue of s.81B(1) of the Magistrates Ordinance,

"On the hearing of an indictable offence not punishable with death, the accused may, at any stage of the proceedings, plead guilty to the charge and thereupon the magistrate may accept or reject the plea:......"

The Ordinance proceeds to lay down certain conditions which must be fulfilled before the magistrate accepts a plea of guilty. These conditions are contained in sub-s.(3) of s.81B and, as it is upon this sub-section that the case turns, I set it out in full:

" If the magistrate does not reject a plea made under sub-section (1), the magistrate before he accepts the plea shall -

	(a)	require the prosecutor to outline to the accused, to the satisfaction of the magistrate, the alleged facts upon which the charge is based;
	(b)	explain to the accused the offence with which he is charged and the ingredients which at law constitute such offence; and
	(c)	record the outline of the alleged facts and any statement made by the accused in pleading guilty to the charge and that the offence and the ingredients which at law constitute the offence were explained to the accused,

and if the magistrate is satisfied that the accused by his plea of guilty admits the ingredients which at law constitute the offence with which he is charged, the magistrate may accept the plea and, after accepting the plea, the magistrate shall thereupon order that the accused stand committed to the Criminal Sessions of the Supreme Court to be dealt with as is hereinafter in this section provided."

3. All four Defendants were committed for sentence but when the case came on for hearing in the Supreme Court counsel for the other two Defendants requested that the proceedings against them be continued by the magistrate and those Defendants therefore dropped out of the picture. These two Applicants maintained their pleas of guilty but their counsel felt in duty bound to take the point which has now been argued before this Court. It has all along been conceded by the counsel who have argued it that the point is a technical point and it has not been suggested that even if it is valid there are any merits in it whatsoever. Nevertheless, if it is valid the Applicants have never lawfully been sentenced. Having heard argument the learned judge said:

"I am satisfied to all intents and purposes that the accused have been properly committed to this court for the purposes of sentence."

and he proceeded to pass sentence accordingly.

4. The basis of the submissions on behalf of the Applicants is that there have been breaches of the statutory requirements of s.81B(3) and it has been conceded on behalf of the Crown that there has not been a strict compliance with that sub-section. Not only is it mandatory that the magistrate, before he accepts a plea of guilty, shall explain to the accused the offence with which he is charged and the ingredients which at law constitute such an offence but he must record that this has been done. When the appeal first came before the Full Court the notes of proceedings before the learned magistrate, which clearly form the foundation of the point now under discussion, had not been included in the record, an omission which we find it hard to understand. We now have those notes of proceedings and it appears that although the charges were read to the four Defendants in the Punti dialect there is no statement that the charges were explained or that the ingredients of the offence of robbery were explained. Even if they were explained - and we have no evidence one way or the other apart from the notes of proceedings as to this - the failure to record the fact of explanation was itself a breach of the statutory provisions.

5. Counsel for the Applicants submits that such a breach of statutory conditions necessarily invalidates the committal and he relies upon a series of English cases. He cited first R. v. Gee⁽¹⁾. That was a case where in committal proceedings before magistrates the "depositions" consisted of statements previously taken from the witnesses by the police in the absence of the defendant. Before the Magistrate questions were put to each witness and the clerk checked that the answers were consistent with the previous statement. After the defendant had been given an opportunity to put questions the previous statement was read over to the witness and signed by him as his deposition. Mr. Justice Goddard, as he then was, referred at p.91 to s.2(2) of the Administration of justice (Miscellaneous Provisions) Act 1933 and continued:

"'	Committed for trial' must mean lawfully committed, and legally committed for trial. It is defined by the Interpretation Act, 1889, s.27.
	Now it seems to this court clear that the proceedings before the magistrates were so defective that there was no lawful committal for trial here at all. Consequently the provisions of the Act of 1933 were not complied with; and no bill of indictment could be preferred against these men, and accordingly the document before the learned recorder was not an indictment and these men could not be tried. The point was brought before him on Jan. 7. He expressed some doubts whether he was not bound to try the bill before him signed by the clerk. He gave the men an opportunity to move for a writ of certiorari with a view to having the proceedings quashed. They did not take that course. At the next sessions the same objection was taken on their behalf: that there was no indictment before the court. The learned recorder thought that he could not give effect to that objection, but that he was bound to try them.
	In the opinion of this court he was wrong."

It was held that there had been a mistrial. Counsel submits that while that case alone supports the contention which he has advanced it is reinforced by Reg. v. Cockshott⁽²⁾ where it was held that failure to comply with s.17(2) of the Summary Jurisdiction Act 1879, which required the justices to inform the defendant of his right to be tried by a jury, rendered a conviction bad. Mr. Justice Wright said at p.586:

"	I think it would be wrong to fritter away the protection which the section intends to give to accused persons.
	........................................
	I think it is immaterial whether in fact he knows that he has the right or not; he ought to be informed of it by the Court."

That case was applied in R. v. Kent Justices, ex parte Machin⁽³⁾, where a defendant who was represented by a solicitor and who consented to be dealt with summarily was not told that he might be committed to quarter sessions for sentence under s.29(1) of the Criminal Justice Act 1948 if the Court, on obtaining information as to his character and antecedents, were of opinion that they were such that greater punishment should be inflicted than the justices had power to inflict. Upon these authorities Mr. Sakhrani submits that it is immaterial whether the Applicants in the present case know the ingredients of the offence of robbery - and, indeed, whether the ingredients were explained to them: the failure to record the fact of such explanation was fatal. We think he is right and that R. v. Walker⁽⁴⁾, which was cited by counsel for the Respondent, is clearly distinguishable: there not only was no injustice done but there was no failure to comply with a statutory condition.

6. Counsel for the Respondent then submits that so long as we continue to treat this as an appeal against sentence our powers are circumscribed by the provisions of s.81(4) of the Criminal Procedure Ordinance, which reads:

"On an appeal against sentence the Full Court shall -

	(a)	if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence (whether more or less severe) warranted in law in substitution therefor as it thinks ought to have been passed; and
	(b)	in any other case, dismiss the appeal."

Thus, counsel says, we cannot on an appeal against sentence quash the conviction. As I said at the outset, we think that that argument overlooks the fact that although this is an appeal against sentence in truth the committal for sentence was bad and there was no jurisdiction to pass any sentence at all. Certiorari would have lain against the committing magistrate (see R. v. Gee (supra) at p.91) but it could not lie against the judge who passed sentence. Nevertheless it is contrary to justice that the sentence should stand, whether or not it was the right sentence for the offence to which the Applicants purportedly pleaded guilty. We have no doubt of our power and duty to declare the committal and subsequent proceedings in the Court below to be null and void.

7. We then have to ask ourselves what power, if any, we have to remit the case to the learned magistrate. Both counsel have assumed that if we have power to declare the committal and subsequent proceedings null and void we have power to remand the Applicants in custody and to direct that they be taken back before the learned magistrate - and it would be a very unfortunate position if we did not. However, a somewhat similar question led to a division of opinion in the House of Lords in Crane v. The Director of Public Prosecutions⁽⁵⁾. That case decided that where there was a mistrial the Court of Criminal Appeal had power to order venire do novo - and that was the power exercised by the Court in R. v. Gee (supra). The decision in Crane's Case turned, however, upon the construction of the Criminal Appeal Act 1907 and we must look, for our powers, to the statutes in force in this Colony. Apart from the Criminal Procedure Ordinance, which does not contain any provision which appears to us to cover the matter in issue, the powers of this Court in relation to all roceedings, whether civil or criminal, are indicated by s.5 of the Full Court Ordinance. The material words of that section are:

"Subject to the provisions of the Criminal Procedure Ordinance, in the exercise of its jurisdiction to hear and determine appeals, and for all the purposes of and incidental to the hearing and determination of any appeal ...... the Full Court shall have all the power, authority and jurisdiction of the Supreme Court."

The general powers of the Supreme Court are conferred by s.7 of the Supreme Court Ordinance:

" The Supreme Court shall have the same jurisdiction in the Colony as Her Majesty's Courts of Queen's Bench, Common Pleas, and Exchequer lawfully have or had in England, and shall be a Court of Oyer and Terminer and Gaol Delivery, Assize, and Nisi Prius"

The Applicants are persons who have been charged with, and still are charged with, offences of robbery and we once again have no doubt that we have, as judges of the Supreme Court, power to order their detention and conveyance before the appropriate court so that the charges against them may be duly heard and determined. We do not think that the provisions of s.81B(4)(a) can avail us in this Court any more than they would have availed the judge in the Court below, for in our view the words "judge before whom the accused is brought ...." mean the judge before whom the accused is lawfully brought in accordance with the earlier provisions of the section.

8. In view of the conclusion which we have reached on the first aspect of the appeal we do not think it would be right to say anything concerning the propriety of the sentences passed upon the Applicants. It is not without regret that we have failed to find any means whereby we can avoid the protraction of these proceedings but, if nothing else is gained, the case may serve to emphasise the necessity for strict compliance with the peremptory requirements of a statute. The appeal will be allowed and we order that the Applicants appear before the magistrate four days from today to take their trial according to law and that in the mean time they be remanded in custody. Lest there be any doubt as to what we intend, we would indicate that at the resumed hearing the learned magistrate should, if he previously explained the charges and the ingredients of the offences, record that fact and he may then accept the Applicants' pleas of guilty. If, on the other hand, he did not previously explain the charges or the ingredients of the offences, he should do what he omitted to do, record that he has done so and then, as may be appropriate, accept the Applicants' pleas of guilty or proceed with the taking of depositions.

28th September, 1971.

Representation:

Sakhrani (Ngan & Wong) for Appellants.

Duckett for Respondent.

Delivered by the President in Court.

(1) 1936 2 All E.R. 89

(2) 1898 1 Q.B. 582

(3) 1952 1 All E.R. 1123

(4) 1950 2 All E.R. 911.

(5) 1921 2 A.C. 299.