Re Honour Judge Li

Case No.HCA 3063/1984

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCA003063/1984

IN THE HIGH COURT OF JUSTICE

N0. 3063 OF 1984

	IN THE MATTER of an application for judicial review
	and
	IN THE MATTER of an order made by His Honour Judge Li on the 19th day of October, 1984 when sitting in the District Court of Hong Kong Holden at Victoria

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Coram: The Honourable Mr. Justice Penlington in Court

Date of hearing: 15th November 1984

Date of delivery of judgment: 15th November 1984

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JUDGMENT

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1. This is an originating motion brought pursurant to leave granted on the 7th of November 1984. The applicant is a detective constable who is facing two offences of soliciting an advantage contrary to the Prevention of Bribery Ordinance.

2. On the 8th October 1984 the applicant together with three other persons appeared before Judge Blackwell in the Kowloon District Court. He pleaded not guilty to both charges and was ordered to stand trial in the Victoria District Court commencing on the 6th December 1984. Application was made for bail and Judge Blackwell granted bail on the following terms.

	1.	Cash in the sum of $10,000.
	2.	To surrender his travel document.
	3.	To report daily to the Kwai Chung Police Station between the hours of 6 P.m. and 9 p.m.

There was no specific requirement that the applicant should not approach or in any way interfere with any Crown witness. I have however been informed at the hearing of this matter that this question was discussed and it was agreed that such a condition was not required as it was an implied condition in all cases where bail is granted. In my view, that is correct to this extent that it is an inherent condition in any grant of bail that the defendant will not approach any Crown witness with the intention of inducing him to give false evidence or not to give evidence at all. There is no pivity in a witness and if it is the intention that the defendant shall not have any contact at all with a witness that must be the subject of a specific condition.

3. Acting upon a complaint that the applicant had indeed approached and sought to influence a witness for the prosecution the applicant was arrested on the evening of the 18th of October 1984 and on the following day he was brought before Judge Li in the Victoria District Court. Both the applicant and the Crown were then represented by Counsel and at the commencement of the proceedings the Court was advised that the applicant had been arrested pursuant to the provisions of Section 13B of the Criminal Procedure Ordinance Cap. 221. Evidence was then called in support of an application to revoke the applicant's bail and having heard that evidence, the Judge ordered that the bail be revoked and that the applicatt be detained in jail custody pending his trial.

4. Subsequent to that hearing and after a further legal advice was obtained, the matter was brought before the Judge again on the 2nd of November. Argument was then addressed that the provisions of Section 13B of the Criminal Procedure Ordinance required that the applicant be brought before a Magistrate. That had not been done and the District Judge had in fact no jurisdiction to revoke bail. He confirmed his order.

5. The matter now comes before me on the basis that the Judge was wrong in ruling that he did have jurisdiction and that I should now quash his order and deal with the matter by referring it back to a Magistrate. In the meantime I should allow the defendant to be released on bail.

6. Counsel for the applicant has submitted that the wording of Section 13B of the Criminal Procedure Ordinance is clear, unambiguous and that whether or not it is the logical thing to do if a person has been released on bail by any Court and he has apparently been in breach of a condition of that bail, he must on arrest be brought before a Magistrate and nobody else. The relevant parts of that Section read as follows:-

"13B. (1) Any police officer may arrest without warrant any person who has been admitted to bail

	(a)	if the police officer has reasonable grounds for believing that any condition on subject to which such person was admitted to bail has been or is likely to be broken,
	(b)	on being notified in writing by any survey for that person (including a surety who has deposited a sum of money pursuant to an order under section 13AA(1)) that the surety believes that that person is likely to break the condition that he will appear at the time and place required and for that reason the surety wishes to be relieved of his obligations as surety.

(2) Any person arrested under subsection (1) shall be brought within 24 hours after his arrest or as soon as practicable thereafter before a magistrate, except where he was so arrested within the period of 24 hours immediately preceding an occasion on which he is required by virtue of a condition of his bail to appear before any court, in which case he shall be brought before that court.

7. If Mr. Mullick is correct and when a person is arrested because of the breach of a condition of his bail he must be taken before a Magistrate but not before a Judge of the Court in which he is to be tried, that is an absurd situation. Mr. Mullick has tried to justify this on the basis that such a defendant can be brought before a Magistrate more easily and more speedily than before any other judicial officer. That, of course, may well be right but in many cases as indeed happen here, it is quicker and easier to bring him before a Judge.

8. There is no doubt that a superior Court has an inherent jurisdiction to take steps to prevent any interference in the due process of its proceedings. Halsbury's Laws of England, 4th Ed., Vol. 9, page 23 reads as follows:-

"Witnesses. Any interference with a witness to a pending or imminent suit, the purpose of which is to deter the witness from giving evidence or to influence the nature of the evidence given, is a serious interference with the administration of justice and a contempt of court.".

9. Section 79 of the District Court Ordinance Cap. 336 provides that the practice and procedure of the Court in its criminal jurisdiction shall be the same as the proceedings in the High Court and in my view this covers the situation where there has been an attempt to interfere with the due administration of justice in the Court. I am satisfied that the District Judge was clearly of the view that there had been such an attempt by the applicant. I am satisfied that Section 13B of the Criminal Procedure Ordinance does not have the effect of taking away the Court's inherent power to act in the way that the District Judge did in this manner. I most certainly consider that the legislation should be amended so that the position is quite clear, but I am also satisfied that there was power for the District Judge to make the order that he did and this application must be refused.

(R.G. Penlington)

Judge of the High Court

Representation:

John Mullick (K.Y. Woo & Co.) for the Plaintiff.

G. Harris Crown Counsel for the Crown.