Re Cheung Shu

IN THE SUPREME COURT OF HONG KONG

Criminal Jurisdiction

Case No. 42 of 1975

Coram: Huggins, J

Date of Judgment: 16th August 1975.

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RULING

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Huggins, J.:

1. The Attorney General applies ex parte under s.24A(1)(b) of the Criminal Procedure Ordinance for consent to the preferring of an indictment containing one count of arson. The person against whom the indictment is to be preferred was charged before a magistrate and committed for trial, but it is said that the magistrate erred in failing to comply with the provisions of s.82(3) of the Magistrates Ordinance and that in consequence the committal was a nullity. The record of the proceedings in the magistrate's court indicates expressly that the magistrate did comply with the provisions of sub ss.(1) and (2) of s.82, that is to say the Defendant was duly asked whether he wished to say anything in answer to the charge and was told that he was not obliged to say anything. It is then recorded that "The Defendant has nothing to say at this stage". Sub-section (3) requires that "Whatever the accused says in answer to the charge shall be taken down in writing ......". I indicated to counsel who appeared for the Attorney General that it did not appear to me that there had been any failure to comply with the provisions of sub-s.(3) in view of the fact that the Defendant had not said anything in answer to the charge, but he drew my attention to Reg. v. MOK Chung Criminal Case No. 11 of 1975 where Trainor, J. had held, in circumstances which were indistinguishable from the present in any material particular, that the committal was a nullity. It is true that there the magistrate not only stated that "The defendant has nothing to say at this stage" but proceeded to record, not on Form 78 but in the notes of proceedings, the exact words in which the defendant had indicated his intention, which entry was not separately signed either by the defendant or the magistrate: nor did it appear that the magistrate had read back to the defendant the words recorded. The learned judge appears to have assumed that what the defendant had said was "in answer to the charge" and he then rightly considered himself bound by the decision of the Full Court in CHAN Kam-chau v. Reg. 1971 H.K.L.R. 383 (where there was a failure to comply with the provisions of s.81B on a committal for sentence) to hold that the committal was a nullity. However, there is nothing in his judgment to show that it was ever suggested to him that the assumption upon which his whole decision was based could not be justified. My attention has since been drawn to Reg. v. CHAN Chi-hung Criminal Case No. 142 of 1974 where another judge, making a similar assumption, likewise held that a committal was bad.

2. It is a common practice, and one which is certainly to be encouraged, that where a defendant states that he does not wish to say anything in answer to the charge his ipsissima verba shall be recorded on Form 78, read over to him and signed by the defendant and by the magistrate. Nevertheless s.82(3) does not say "whatever the accused says shall be taken down in writing" but "whatever the accused says in answer to the charge shall be taken down in writing" and if he does not say anything in answer to the charge it can never properly be said that the magistrate has failed to comply with the provisions of sub-s.(3). That seems to me to be the position here and, with all respect to the judges who have held otherwise in similar cases, I take the view that there was no fatal error by the magistrate and that the committal was good. As I am not following the previous decisions I would have liked to obtain a ruling from a Full Court, but there is no convenient procedure whereby this could be done, for s.81 of the Criminal Procedure Ordinance applies only where an indictment has been filed. Before reaching my decision I have, however, consulted all the judges of the Court who are at present in the Colony and I rule that no consent to the filing of an indictment is necessary.

3. I would repeat that the practice of recording the ipsissima verba of the defendant on Form 78 and of treating them as though they were "in answer to the charge" has much to commend it: since his own signed statement will be on the record, it will help to forestall any attempt by a defendant to contend at his trial that he was not given an opportunity to say anything in answer to the charge or that he did in fact say something in answer to the charge which was not recorded.

16th August 1975.