Re David Lam Shu Tsang

HCMP000242/1977

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 242 OF 1977

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MISCELLANEOUS PROCEEDINGS NO. 276 OF 1977

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Coram: Full Bench (Leonard and Zimmern, JJ. and Mr. Commissioner O'Connor)

Date of Judgment: 8 July 1977

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JUDGMENT

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1. These applications were brought with leave for orders of certiorari for the removal into the High Court of the above captioned cases for the purpose of quashing an order made on the 6th April 1977 transferring charges against the applicants and another to the District Court.

2. The applicants were jointly charged in the Magistrates Court with one David Wilkinson with conspiring to pervert the course of public justice by means of a false pretence to mislead the Independent Commission Against Corruption in its investigations into possible offences by Mr. Wilkinson contrary to the Provisions of the Prevention of Bribery Ordinance (Cap. 201), an indictable offence. The applicant, Clifford Wong, was further charged with two counts of bribery of Mr. Wilkinson (indictable offences) and the applicant, David Lam, with giving a false statement to officers of the I.C.A.C. contrary to section 13B(b) of the Independent Commission Against Corruption Ordinance (Cap. 204), a summary offence. They first appeared before a magistrate, Mr. Corfe, on the 30th March 1977 when the Crown sought and obtained an adjournment until April 4th 1977 on the ground that an application would then be made for a transfer to the District Court. Before the hearing of the 4th April, 1977 counsel for Mr. Wong had a discussion with an officer of the I.C.A.C. and counsel for Mr. Wong and Mr. Lam were, as a result left under the impression that the application for transfer would not be made immediately the case was called upon but that an opportunity would be afforded to them to make representations to the Attorney General that the charges should not be transferred to the District Court but that the applicants should be committed for trial in the High Court and so afforded trial by jury. Due to some misunderstanding between two I.C.A.C. officers involved in the prosecution when the magistrate sat an application for transfer of the charges to the District Court was immediately made to him. This application came as a surprise to counsel for the applicants and they asked for and were granted an adjournment of the application until 6th April 1977 so that they might have opportunity to make representations to the Attorney General. They did make such representations stressing the desire of the applicants to be tried by jury and suggesting

"that the case being one essentially built on the word of an accomplice and not one, say, involving a large volume of documents or a long hearing was eminently suitable for trial by jury."

As a result of these representations the Attorney General informed counsel that he would let them have an answer on the 6th April 1977. On the 6th April 1977 the Acting Attorney General by letter to counsel for Mr. Wong stated:

"I have considered carefully what you and Mr. Martin Lee" (Counsel for Mr. Lam) "said to me on Monday afternoon. I have decided not to seek to withdraw the application at present before the court for the removal of the case against your client Mr. Clifford Wong, to the District Court."

The application which was brought under section 88 of the Magistrates Ordinance continued on the 6th April 1977 and the learned magistrate transferred the charges. In doing so he was clearly under the impression that all the charges were indictable. In this he was wrong; one of them was summary in nature. He held that section 88(1) of the Magistrates Ordinance under which the application for transfer was made was mandatory. In fact the section is clearly not mandatory insofar as summary offences are concerned.

3. It reads:

"(1) Notwithstanding anything contained in any other provision of this Ordinance, whenever any person is accused before a magistrate of an indictable offence not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Attorney General -

Section 89 reads:

Section 90 deals with the procedure to be followed by a magistrate on making an order of transfer and we need not concern ourselves with it.

4. These three sections are the only sections in the Magistrates Ordinance dealing with transfer to the District Court and form a separate part (Part IV) of the Ordinance.

5. In the Definition Section "District Court" is defined as meaning "the District Court of Hong Kong established by the District Court Ordinance". Section 3 of the District Court Ordinance (Cap. 336) provides for the establishment of the District Court of Hong Kong as a Court of Record and that it shall have such civil criminal jurisdiction and powers as are conferred on it by that Ordinance and by any other enactment for the time being in force. Section 6(1) provides that every proceeding in the District Court and all business arising thereout shall be heard and disposed of by a judge sitting alone. Section 74 confers on the District Court criminal jurisdiction:

"to hear and determine ... all such charges as the Attorney General may lawfully prefer under the provisions of section 75."

and section 75(1) provides:

"Where a charge on complaint has been transferred to the Court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance, the Court shall have jurisdiction and powers over all proceedings in relation to the offence therein alleged similar to the jurisdiction and powers the Supreme Court would have had if the accused person had been committed to that court for trial on indictment."

Subsection 2 provides that where a charge has been transferred

"the Attorney General shall unless he enters a nolle prosequi deliver to the Registrar a charge sheet setting forth the charge or charges preferred in the name of Her Majesty against the accused person and any such charge may allege the commission of any indictable offence not included in Part III of the Second Schedule to the Magistrates Ordinance and any offence triable summarily only, whether or not the offence was included in the order transferring the charge ..."

It is then to this court so constituted that charges or complaints are to be transferred under Part IV of the Magistrates Court. It follows that the transfer of charges if effective will have the effect of rendering those charges triable by a single judge without a jury.

6. The grounds on which Mr. Wong seeks an order here as set out in the statement made pursuant to Order 53 rule 1(2) of the Rules of the Supreme Court are:

"In making the order of transfer, the learned magistrate erred in law, or alternatively, acted without jurisdiction or alternatively exceeded his jurisdiction in holding that he was bound by law to make the transfer upon application on behalf of the Attorney General for transfer, and in so doing, he failed to consider adequately or at all:

The grounds on which Mr. Lam seeks an order were originally almost identical with these grounds but they were amended to provide for the addition of a further sub-paragraph (e) reading:

We think it proper to indicate at once that we believe the contentions in sub-paragraph (e) are well grounded. Clearly the magistrate did not realize he was dealing not only with charges alleging indictable offences but, in the case of Mr. Lam, also with a charge alleging a summary offence. He did not realize that he had a discretion insofar as this charge was concerned and hence the order having been made under a misapprehension was vulnerable. A Full Bench differently constituted granted leave to apply for an order of certiorari on that account being of the opinion that the order was indivisible. We are not of the opinion that the order was not indivisible.

7. In The King v. Phillips & Quayle⁽¹⁾ Quayle was first brought before the committing justices alone and later Phillips brought before them as a co-defendant. Meanwhile 35 witnesses had been examined regularly in the presence of Quayle but as their evidence incriminated Phillips also it became necessary to repeat their evidence when Phillips was brought before the court. Their evidence related to the charges which subsequently became Counts 1 - 7 of an indictment containing 17 counts on which both were ultimately committed. The procedure adopted for the re-examination of the 35 witnesses in question was irregular and so irregular as to invalidate the committal insofar as counts 1 - 7 were concerned but it was held that when justices committed for trial on several counts the committals were several and distinct and if one was had the others were not necessarily invalidated thereby so that the committal insofar as the remaining counts were concerned was good. This case was followed in Reg. v. County of Stafford Quarter Sessions, ex parte Allen and Gilbert⁽²⁾. Both of these cases depended to some extent on relevant English Statutes but having regard to the fact that what the Ordinance is concerned with here is the transfer of charges we consider we should not regard the order as an indivisible one but as severable. We are further convinced that had the magistrate been aware of his discretion in relation to the "summary charge" he would in the exercise of that discretion have undoubtedly ordered that the "summary charge" should be tried in the same manner and at the same time as the other charges. Nothing therefore turns on this point and it was not pursued by Mr. Lee before us. It is pre-eminently a point for the exercise of our discretion.

8. Mr. Leggatt's primary attack on the order of transfer was based on the submission that trial by jury was a valuable right evolved from the common law enshrined in Magna Carta and such that a court will not readily infer that a prosecutor can deprive an accused person of it. We have no doubt that at Common Law there is, in the case of indictable offences, a right to trial by jury although the right enshrined in Magna Carta is to trial "by the lawful judgment of his peers or by the law of the land". We have equally no doubt that in Hong Kong the right is to trial in accordance with law. This is a result of the application of English Law Ordinance section 3(1) of which provides:

"The common law and the rules of equity shall be in force in Hong Kong -

The essential question for our consideration on this ground is whether our Ordinances have provided for the trial of indictable offences by forums other than those composed of judge and jury or to put it another way is the trial of charges for indictable offences by a single judge sitting alone against the wishes of the person accused trial in accordance with law.

9. It is abundantly clear that section 6 of the District Court Ordinance so contemplates but counsel before us confined their considerations to section 88 of the Magistrates Ordinance arguing that section 88 had not taken away the right to trial by jury with "irresistible clearness".

10. Mr. Leggatt placed particular reliance on Leach v. Reg.⁽³⁾ in support of his contention that it had not. The essential question arising there was whether the common law right of one spouse to refuse to give evidence against the other had been taken away by section 4 of the Criminal Evidence Act 1898 which read:

"The wife or husband of a person charged with an offence under any enactment mentioned in the Schedule to this Act may be called as a witness either for the prosecution or defence and without the consent of the person charged."

In arguing that a spouse was a compellable witness Sir J. Simon S.G. argued that to say a person "may be called" related to the power of the person calling the witness. If a person may be called the legal consequence is that he must submit to examination. This argument was advanced on the basis that the Act had "eschewed" the use of the word "compellable" and the controversy then surrounding its use and that the words of earlier statutes were "competent but not compellable" and not "competent and compellable" and where the word "competent" is used without more the inference is that the witness is compellable. Earl Loreburn L.C. dispatched this argument rapidly saying:

"The difference between leave to give evidence and compulsion to give evidence is recognised in a series of Act of Parliament. Does then the 4th section ... deprive the wife of this protection. It is capable of being construed in different ways and it may hereafter lead, for all I know, to various other difficulties but the present question is does it deprive this woman of this protection? My Lords, it says in effect that the wife can be allowed to give evidence even if her husband objects. It does not say she must give evidence against her own will. It seems to me that we must have a definite change of law in this respect, definitely stated in an Act of Parliament before the right of this woman can be effected."

Lord Halsbury entirely concurred with the judgment of the Lord Chancellor:

"and particularly with that part of it in which he said that such an alteration of the law as this ought to be by definite and certain language."

We do not consider that section 88 of the Magistrates Ordinance contains any ambiguity as did section 4. It must be read with the constitution of the District Court in mind. A person tried in the District Court pursuant to the transfer of the charge which "shall" be made by the magistrate is tried in accordance with the law of Hong Kong. It is the District Court Ordinance that takes away the right to trial by jury in respect of offences tried before the District Court and it does so in the most unequivocal of terms. Cases must reach the District Court through some channel and the channel chosen by the Legislature is the magistrates court. The way in which charges are pilotted through that channel is again stated unequivocally in section 88. No ambiguity is created by the introductory words "Notwithstanding anything contained in any other provisions of this Ordinance" nor by the omission from this phrase of a reference to Common Law rights for one does not expect any reference to disturbance of the Common Law right to trial by jury here. One might look for it in section 6 of the District Court Ordinance but that section is so unequivocal that it is there unnecessary. The Common Law applies: "subject to any amendment thereof made ... by any Ordinance". A curtailment to the right of trial by jury had been made by the District Court Ordinance just as it had been made by "Part V" of the Magistrates Ordinance which deals with summary trial of indictable offences. Neither Part V of the Magistrates Ordinance nor any section of the District Court Ordinance conferred any right to elect trial by jury. It is doubtful if there can be said to have been such a right to elect at Common Law. Indeed when considering the right to jury trial at Common Law it is well to remember that that right originated not as a privilege but as an obligation. As Maitland in his Constitutional History of England says:

"It became law that an indicted person who, when asked how he would be tried, stood mute of malice, that is refused to answer 'By God and my country' might be pressed and starved to death. I need not give details of this, the peine forte et dure, but one should think of it whenever one hears talk of trial by jury as of an obviously just institution. Our ancestors did not think so."

If what began as an obligation became a cherished right the power to elect trial by jury as distinct from summary trial was, as indeed was the entire concept of summary offences and summary trial of them, the creature of statute in England. The election at common law, if it can be called an election, was a choice between defending oneself by battle, trial by ordeal, and putting oneself on one's country. The right to elect as now known did not arise in England until the eighteen seventies: It was conferred by Statute.

11. In Hong Kong in 1845 by Ordinance No. 8 of that year entitled "An Ordinance to regulate Criminal Proceedings" it was provided that an indictment signed by the Attorney General should be as valid and effectual as if the same had been presented by a grand jury and that "every prisoner, upon being arraigned upon or charged with any indictment or information by pleading generally thereto the plea of 'not guilty' shall without further form be deemed to have put himself or herself upon the country for trial. "The country" was then a jury of 6 persons (Ordinance No. 6 of 1845).

12. Ordinance No. 6 of 1847 enabled the magistrates to take cognizance of any criminal charge where it appeared to him that

"the ends of justice would be answered by the infliction of a fine not to exceed in any case the sum of fifty pounds and imprisonment not to exceed three calendar months... to try and determine the case in a summary manner."

It is perhaps needless to say that this Ordinance contains no clause empowering a person brought before a magistrate to elect trial by jury. Such a right is not to be found so far as I am aware anywhere in our legislation.

13. In view of all this it is not surprising that in section 88 of the Magistrates Ordinance no reference is made to the right to trial by jury for the right to elect it was not known to the common law nor to earlier statutory law in Hong Kong.

14. Section 88 in itself it does not take away the right to trial by jury although its operation has the effect of removing charges for indictable offences which an accused person faces to the court of a single judge as soon as the Attorney General applies for an order to that effect. This is in our view the clear unambiguous and intended effect of the section. It is capable of no other interpretation and we cannot interfere with its operation unless the decision of the Attorney General to apply for a transfer under it be successfully attacked. Section 88 is primarily procedural although its direction to the magistrate to act "upon application made by or on behalf of the Attorney General" necessarily enables the Attorney General, in the exercise of his discretion, to make application.

15. It is clear from the judgment of the Court of Appeal in CHAN Ching-chung (Criminal Appeal No. 600) that the exercise of a statutory discretion by the Attorney General may be attacked on the ground that he has acted unfairly. Mr. Leggatt placed considerable reliance on this case and also on H.K. an Infant⁽⁴⁾: In that case Parker L.C.J. had this to say:

"Good administration and an honest or bona fide decision must, as it seems to me, require not merely impartiality nor merely bringing ones mind to bear on the problem, but acting fairly; and to the limited extent that the circumstances of any particular case allow, and within the legislative framework under which the administrator is working, only to that limited extent do the so-called rules of natural justice apply, which in a case such as this is merely a duty to act fairly. I appreciate that in saying that it may be said that one is going further than is permitted on the decided cases because heretofore at any rate the decisions of the courts do seem to have drawn a strict line in these matters according to whether there is or is not a duty to act judicially or quasi-judicially."

In Padfield and Others v. The Minister of Agriculture, Fisheries and Food and Others⁽⁵⁾ the matter under consideration was a discretion conferred the Minister to be used to promote the policy and objects of the Act. The facts are complicated and it is not necessary to set them out since Mr. Leggatt did not contend that they were in any way similar to the facts in the instant case but relied on various passages in support of his general contention that we should infer the Attorney General had in the present case acted unfairly. At page 1032 Lord Reid had this to say:

"It was argued that the Minister is not bound to give any reasons for refusing to refer a complaint to the Committee, that if he gives no reasons his decision cannot be questioned, and that it would be very unfortunate if giving reasons were to put him in a worse position. But I do not agree that a decision cannot be questioned if no reasons are given. If it is the Minister's duty not to act so as to frustrate the policy and objects of the Act and if it were to appear from all the circumstances of the case that that had been the effect of the Minister's refusal, then it appears to me that the court must be entitled to act."

Again at page 1053 Lord Pearce had this to say:

"I do not regard a Minister's failure or refusal to give any reasons as a sufficient exclusion of the court's surveillance. If all the prima facie reasons seem to point in favour of his taking a certain course to carry out the intentions of Parliament in respect of a power which it has given him in that regard, and he gives no reason whatever for taking a contrary course, the court may infer that he has no good reason and that he is not using the power given by Parliament to carry out its intentions."

Again at page 1058 Lord Upjohn had this to say:

"He may have good reasons for refusing an investigation, he may have, indeed, good policy reason for refusing it, though that policy must not be based on political considerations which as Farwell L.J. said in Rex v. Board of Education (1910) 2 K.B. 165, 181 are pre-eminently extraneous. So I must examine the reasons given by the Minister, including any policy upon which they may be based, to see whether he has acted unlawfully and thereby overstepped the true limits of his discretion, or as it is frequently said in the prerogative writ cases, exceeded his jurisdiction. Unless he has done so, the court has no jurisdiction to interfere. It is not a Court of Appeal and has no jurisdiction to correct the decision of the Minister acting lawfully within his discretion, however much the court may disagree with its exercise."

In order to appreciate the relevance of these passages it is necessary to have some regard to the nature of the Crown's case against the applicants. Mr. Leggatt assures us that it is to be the Crown's case that while certain negotiations for the grant of a permit relating to land at Shatin were in progress a bribe in the form of certain trust units was offered by Mr. Wong to Mr. Wilkinson who was concerned in the negotiations as a Crown servant and that this offer was refused. Later when Mr. Wilkinson was on leave he received a number of bearer certificates for the units in question and decided to keep them. It is to be alleged that they emanated from Mr. Wong. Mr. Wilkinson had faced charge of having assets disproportionate to his income, the questioned assets being these certificates. It was Mr. Leggatt contended further to be noted that it was the Crown's case that when the fact that Mr. Wong and Mr. Lan to give such a false explanation. Mr. Wilkinson pleaded guilty to having had assets disproportionate to his income. he was sentenced to one year's imprisonment which had been suspended for one year. It was further the intention of the Attorney General to enter a nolle prosequi against Mr. Wilkinson in the conspiracy charge so that he could give evidence on behalf of the Crown. The facts to be alleged by the Crown were denied by Mr. Wong and Mr. Lam and it was, argued Mr. Leggatt, clear that for proof of them the Crown would be obliged to rely heavily on the evidence of Mr. Wilkinson, In the circumstances he argued this was preeminently a case suitable for jury trial. The questions raised were he suggested question of fact and of whom to believe. He pointed to the gravity of the allegations which involved the reputation of Mr. Lam and Mr. Wong and to their expressed wish to be tried by a jury. Mr. Leggatt did not suggest that it was a case which was unsuitable for trial by a single judge. Indeed he acknowledged that the District Judges had time and again in corruption cases most properly indicated their independence and their concern as guardians of the liberties of the individual. What he did suggest however was that Mr. Wong and Mr. Lam as laymen might feel apprehension, however unfounded, as to the likelihood of a fair trial before a single judge since almost all the witnesses would be Crown servants. We do not find it necessary to comment on any of these factors for there is no reason to suppose on the papers before us that each of them was not considered by the Attorney General prior to his having decided to apply for transfer of the charges or between the 4th and 6th April 1977. It is not for us to evaluate the advantages which trial by jury may have over trial by a single judge nor vice versa. We are concerned with the exercise of his discretion by the Attorney General and it is for the applicants to show us, if they are to succeed, that that discretion has been exercised unfairly. The expressed wishes of the applicants would be a factor for the Attorney General's consideration, the fitness of the case for trial by jury would be a factor. So would its fitness for trial by a single judge. So too would be the time involved in obtaining a date for trial the pressures on a limited number of available jurors and many other matters. We do not know what factors engaged his mind or what weight he may have given to any one factor. It was suggested before the learned magistrate that the only reason he could have had was that he thought that it would be easier to secure a conviction in the District Court than in the High Court in a case of this nature. We don't know if it is or if he thought so but if we were satisfied from all the surrounding circumstances that this was his reason, we would have granted the application; for such a reason would be just as extraneous as would a political reason. But we are not so satisfied. The Attorney General has not been provoked into giving his reasons. The refusal to be provoked does not indicate to us that the reasons must have been improper. The surrounding circumstances are not such as to drive us to that conclusion as they were in Padfield's Case⁽⁵⁾.

16. There is one other matter which has caused us concern. That is the misunderstanding between the two I.C.A.C. officers to which we referred in our opening remarks. Had the matter ended with the application on the 4th of April 1977 and had no opportunity to make representations been granted to counsel for Mr. Wong and Mr. Lam or had it been beyond the power of the Attorney General to nullify the effect of the application if he had wished to do so as a result of the representations made to him we would have been disposed to issue the order. However even if it was beyond the power of the Attorney General to withdraw the application for transfer once it had been made (a question it is not essential to decide) the same effect could have been achieved by his entering a nolle prosequi and starting again and this possibility must have been known to all concerned. It is expressly referred to in section 76 of the District Court Ordinance. We consider that even if some degree of unfairness is shown to have arisen by reason of a misunderstanding between the two I.C.A.C. officers involved this is removed by the fact that full opportunities to make representations were granted between the 4th and 6th April 1977 and we would accordingly exercise our discretion in respect of that irregularity. These applications are accordingly dismissed with costs.

Representation:

Martin Lee (P.H. Sin & Co.) for Applicant

Leggat, Q.C., Patrick Yu & Kenneth Kwok (Peter Mo & Co.) for Applicant

B.T. Caird, S.C.C. for Crown/Respondent

(1) (1939) 1 K.B. 63.

(2) (1958) C.L.R. 818.

(3) (1912) A.C. 305.

(4) (1967) 2 Q.B. 617.

(5) (1968) A.C. 997.