Attorney General v. P H O'Donnell Permanent Magistrate

HCMP000198/1984

BETWEEN

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Coram: Hon. Barnes, J. in Court.

Date: 30 January 1984

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JUDGMENT

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Introduction

1. This case is concerned with the extent of a magistrate's power to remand a person accused of the commission of an indictable offence.

Background

2. The Criminal Procedure (Preliminary Proceedings on an Indictable Offence) Ordinance 1983 ("the new Ordinance") amended the Magistrates Ordinance ("the Ordinance") to eliminate the need to hold a preliminary examination unless the accused required such an examination. The new procedure became effective on and from 1 January 1984.

3. On 18 January 1984 two men arrested and charged jointly by the police with an indictable offence were brought in custody before a magistrate. The prosecutor applied for a remand in police custody for three clear days "for further enquiries and an identification parade". The learned  magistrate's notes of what then occurred is as follows:-

"Prosecution do not indicate venue of trial at this stage. Court for reasons set out in written decision given this morning does not consider it has jurisdiction to entertain this application under Section 79(1) of the [Ordinance]"

In the written decision referred to the learned magistrate said : -

"......in introducing the new procedure for dealing with committal proceedings, Section 79(1) was amended by replacing the opening words of this section, namely, 'If, on the hearing of an indictable offence,' with these words 'If, in the course of committal proceedings, it becomes necessary or desirable in the opinion of the Magistrate -'. The difficulty for Magistrates in relying on this provision is to establish whether or not in the words of the amended section 'it is in the course of committal proceedings' when an accused first appeared in Court and the Prosecution are not ready to request a return day for the committal proceedings to proceed. In the opinion of this Court it is straining plain language of the amended section to suggest that committal proceedings commence when an accused first appears in Court because it is not unusual after legal advice has been sought to either seek leave to withdraw the charge for lack of evidenee or some other reason or to enter a Nolle Prosequi and, in either case, the accused would be discharged forthwith."

The learned magistrate then purported to "assume jurisdiction to deal with [the accused] summarily under Sections 92 and 93 of the [Ordinance]" and invoke Section 20(3) ..... without the consent of the Prosecutor under Section 94A". He then ordered that they be remanded under section 20 in jail custody until 25 January 1984.

4. The Attorney-General by way of an Application for Judicial Review now seeks an order of certiorari to quash the order purportedly made pursuant to section 20 of the Ordinance, an order of mandamus directing the magistrate to exercise the jurisdiction conferred upon him by section 79 and a declaration that on the true cnnstruction of that section a Permanent Magistrate has jurisdiction under it to remand in custody any person who appears before him accused of an indictable offence.

5. The Ordinance is divided into Parts. Parts II and III deal generally with the procedure in respect of summary and indictable offences respectively. I say, "generally", because there are provisions in Part II which also apply to proceedings under Part III either because there are specific provisions in Part III applying them, mutatis mutandis, (e.g., ss. 76, 77) or because the wording of a provision in Part II makes it clear that it is equally, applicable to Part III proceedings (e.g. s.15). Apart from such overlapping provisions, however, the procedure for dealing with indictable offence is to be found in Part III unless, at some stage during those proceedings, the Attorney-General applies for a transfer to the District Court, or the magistrate, with the consent of the prosecutor, assumes the power to try the offence summarily. If an order for transfer to the District Court is made that order operates as a stay of the proceedings under Part III (s. 89(1)). If the magistrates assumes the power to try the offence summarily the proceedings under Part III cease and the Part II procedure is thereafter followed (SS. 92, 93, 94A).

6. A magistrate's power to remand an accused during Part III proceedings is spelt out in section 79 of the Ordinance. Before the section was amended by the new Ordinance it provided, insofar as its provisions are material to this decision, as follows: -

7. No one ever appears to have doubted that that provision empowered a nagistrate to remand an accused in prison or police custody subject to the qualifications therein set out during Part III proceedings.

8. As amended by the new Ordinance the material parts of the section now read as follows:-

the magistrate before whom the accused appears or is brought may from time to time ...... 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, ....... , to continue and keep the accused in custody and to bring him before the same magistrate at the time appointed for continuing the committal proceedings: ......"

9. The new Ordinance also introduced into Part III, inter alia, two new sections, namely, 71A and 80A. Under section 71A "'committal proceedings' means proceedings under [that] Part for the committal of an accused". Section 80A provides by subsection 1 as follows:-

"80A. (1) When the accused appears or is brought before a magistrate upon an allegation of the commission of an indictable offence the magistrate may, and shall if the prosecutor so requires, appoint a day for the continuation of the committal proceedings (hereinafter referred to as 'the return day')."

10. Further provisions introduced into Part III by the new Ordinance prescribe a procedure whereby before that return day the prosecution is required to serve on the accused a copy of the charge, copies of the statements of the witnesses the prosecution intends to call at the trial, copies of documentary exhibits and a list of exhibits. On that return day the accused has the right to elect to have an "old style" preliminary examination with witnesses being called to give oral evidence or with their statements being read out in court or with a combination of the two. If he does not opt for the "old style" procedure in any of its forms the magistrate is empowered to commit him for trial or sentence, as the case may be, forthwith.

11. It may be that, in order to avoid debate about whether the latter procedure of peremptory committal could be accurately described as the "hearing of an indictable offence", the Legislature decided to avoid the use of that phrase in the new section 79. In any event, whatever the reason for the change in verbiage, a conceptual difficulty has been created for the learned magistrate. He cannot see how "committal proceedings" can sensibly be regarded as having commenced at any time prior to the appointment of a return day.

The nature of committal proceedings

12. Originally, committal proceedings involved no preliminary examination at all. They were committal proceedings because generally all that a justice did after having had a suspect arrested and brought before him was to order his committal to prison until trial. Later, with the increase in the range of "bailable" offences and legislative concern over the ease with which justices were granting bail, a statutory procedure to govern the granting of bail was introduced into the justice's committal proceedings. This procedure took the form of an inquisitorial preliminary examination which proved so effective in building up a case against the prisoner that it was extended to committal proceedings in respect of "non-bailable" offences as well. The essential feature of the committal proceedings, however, was not the preliminary examination, but ensuring that the accused would appear at his trial. The substitution in the 19th century of a judicial in place of an inquisitorial preliminary examination was a civilized reform in the procedure in that it provided for an earlier discharge of a prisoner where the evidence did not warrant his being put on trial. That change in the nature of the prelimary examination changed the underlying purpose of the committal proceedings only to the extent that whereas originally the aim was to ensure that everyone charged with an indictable offence would appear at his trial in a higher court, the new aim became merely to ensure the appearance of those charged against whom the evidence was sufficient to warrant their being so put on trial. (Sir Carleton Kemp Allen, The Queen's Peace, p. 148; Holdsworth, History of English Law, Vol. I, pp. 296-7; Vol. IV pp. 528-9; Vol. V, p. 191 ).

Part III before the new Ordinance

13. Before the enactment of the new Ordinance Part III had, at its aim, essentially the same aim as committal proceedings have had over the centuries. Part III set out the procedure for magistrates dealing with indictable offences, that is, offences "for which a magistrate [was] authorized or empowered or required to commit the accused person to prison for trial before the [High Court]" (s. 2 of the Ordinance). Thus, Part III envisaged that, unless one of other of the two supervening events mentioned earlier occurred, there would be a preliminary examination followed by a decision to commit or discharge. A failure to commit after a preliminary examination would not have altered the character of the proceedings begun on first appearance: nor would the failure to hold a prelimary examination. A person brought before a magistrate on a charge of having committed an offence for which the magistrate was required to commit for trial must unquestionably have been before the magistrate in the course of Part III proceedings - he could not have been there for any other proceeding known to the Ordinance. A person brought before a magistrate on a charge of having committed an offence for which the magistrate was empowered to commit must equally have been there in the course of Part III proceedings. The former would remain subject to Part III proceedings until either committal or discharge; the latter would also remain so subject unless one or other of the two previously mentioned events occurred before committal or dicharge.

Part III as amended

14. Although thennew Ordinance has amended Part III extensively the effect can be shortly stated as the introduction of a pre-16th century peremptory type committal procedure adapted so as to accord with modern ideas of criminal justice (by, e. g., revealing to the accused the whole of the prosecution case), while retaining as an alternative available at the election of an accused the modern judicial form of prelimary examination bearing the new label of "preliminary inquiry". But the underlying purpose in bringing before a magistrate a person accused of the commission of an indictable offence remains, namely, so that, unless admitted to bail, he may be committed to prison until delivery by due course of law. The committal proceedings thus begun may be halted by the entering of a nolle prosequi by the Attorney-General (s. 15), stayed by an order of transfer (s. 89), merged with Part II proceedings (s. 93) or continued until terminated by either a committal order (ss. 80C, 81B, 85(2)) or an order dis-charging the accused (s. 85(1)). Consequently, in my view, the amendments to section 79 have not created any doubt about the extent of a magistrate's power to remand an accused under Part III.

15. The application by the prosecutor in this case was an application made in the course of committal proceedings. It was, in effect, an application to defer a stage in those proceedings, namely, the stage where a return day for the continuation of those proceedings is appointed.

16. Mr. Mok argued that the definition of "committal proceedings" added by the new Ordinance implies that "Part III proceedings" and "committal proceedings" are not synonymous terms, that, if they were, the definition should have simply read, " ...... proceedings under this Part". The addition to the definition of the words, "for the committal of an accused", revealed, so he submitted, that the Legislature recognised a dichotomy of proceedings under Part III - an innominate proceeding while the accused was in limbo, as it were, waiting for a decision to be made as to whether committal or other proceedings would ensue, and committal proceedings proper. If it were decided to proceed other than by way of a preliminary examination the innominate proceeding ended. The court, as a result, never entered upon a "course of committal proceedings". Section 79 would then have no application and a magistrate would have to look to section 20 for his power to order a remand.

17. This argument, as with all the submissions made by Mr. Mok, was ably advanced and persuasively put, but was not convincing. It is true that there are proceedings under Part III which are not proceedings for the committal of an accused but they are not implied innominate proceedings undertaken prior to the commencement of committal proceedings; they are specific procedures to be followed by a magistrate after a committal (e. g., s. 85A). There is therefore no ambiguity in the definition of "committal proceeding" and no reason to infer that some form of innominate pre-committal proceeding was envisaged by the legislature when framing that definition.

18. I have not set out the other submissions made by Mr. Mok because, in my view, they are flawed by their failure to take account of what I consider to be the underlying purpose of committal proceedings.

The provisions as amended can, in my view, be sensibly understood when read in the context of the inherent nature of the proceedings. Read that way the clear meaning of section 80A is that committal proceedings begin as soon as an accused appears or is brought before a magistrate upon an allegation of the commission of an offence in respect of which a magistrate is authorized, empowered or required to commit him "to prison until delivery by due course of law".

19. Section 79 spells out in clear terms a magistrate's powers in the course of such proceedings so that section 20 does not apply "in the course of committal proceedings".

20. I therefore make orders in the terms of the application set out above.

Representation:

Mr. Duffy, Deputy Crown Prosecutor and Mr. Osborne, Senior Crown Counsel, for the Attorney General.

Mr. Y. C. Mok instructed by the Registrar, Supreme Court, as amicus curiae for the respondent.