The Queen v. Tsang Ting-bun

DCCC000220/1977

IN THE DISTRICT COURT OF HONG KONG

HOLDEN AT VICTORIA

CRIMINAL JURISDICTION

CASE NO. 220 OF 1977

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Coram: Judge de Basto, Q.C. in Court.

Date of Judgment: 27th January, 1978

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RULING

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1. Mr Martin Lee, for the defence, has applied to the Court, after a Ruling by this Court that the accused had a case to answer, to reserve certain questions of law for the consideration of the Court of Appeal. Mr Lee makes that application on the basis of Section 81(1) of the Criminal Procedure Ordinance as applied to the District Court by virtue of Section 79 of the District Court Ordinance.

2. Section 81 of the Criminal Procedure Ordinance provides:

Provided that the Full Court may, notwithstanding that it is of the opinion that the question so reserved might be decided in favour of the convicted person, affirm the decision if it considers that no miscarriage of justice has actually occurred."

3. Subsection (4) appears to set out the jurisdiction of the Court of Appeal when a question under subsection (1) is reserved to it. The word "may" at first sight seems to be permissive and not mandatory but the word "and" at the end of subsection 4(a), instead of the disjunctive "or" seems to imply that the Court of Appeal may only have a question of law determined after an accused has been convicted.

4. Section 80 of the Criminal Procedure Ordinance, 1971 edition, appears, at first sight to be less restrictive. Section 80 (the precursor of the present Section 81) reads in part:-

"The judge may reserve for the consideration of the Full Court any question of law which may arise on the trial of any indictment, and, in case where the accused person is convicted, may ..... ( emphasis mine )

5. Subsection (2) of the former Section 80 is substantially the same as the present Section 81(4).

6. Section 78 of the 1899 Criminal Procedure Ordinance reads in part:

"The Judge may in his discretion reserve for the consideration of the Full Court any question of law which may arise upon the trial of any indictment, and, in case the accused person is convicted, may postpone judgment ....." (emphasis mine)

and the subsection goes on in similar terms to subsection (4) of Section 81 and its proviso.

7. At first sight the former Section 78 would seem to contemplate two situations (1) where the accused has not or not yet been convicted and (2) where the accused has been convicted.

8. Although it is conceded by the Crown that the word "on" in Section 81(1) means "during" and therefore, at first sight implies that a question of law may be reserved at any time during a trial for the consideration of the Court of Appeal, the present subsection (4) makes that subsection referable to subsection (1) and subsection (4) seems to confer powers on the Court of Appeal only when a conviction has taken place. The word "may" in subsection (4) at first sight seems to be purely permissive but I am persuaded that the combination of the words "may" and "and" in that subsection restricts the powers of the Court of Appeal to questions of law reserved to it after an accused person has been convicted. Mr Edwards, for the Crown, concedes that if the word "and" were to mean or could mean, "or" then he would not be in a position to oppose this application.

9. Doing the best I can I hold I have no authority, at this stage, to reserve a point of law to the Court of Appeal and the application is therefore refused.

Representation: