Attorney General v. M. Chui, A Principal Magistrate

HCMP001792/1988

1988 MP No. 1792

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANCEOUS PROCEEDINGS

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BETWEEN

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Coram: Hon. Duffy, J. in Court

Date of hearing: 20th October 1988

Date of delivery of judgment: 26th October 1988

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DECISION

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1. The Attorney General seeks relief from a refusal by the Principal Magistrate at San Po Kong Magistracy to amend a case stated. The relief sought is an order of certiorari to quash her decision to refuse to amend and an order of mandamus requiring her to amend the case stated.

2. This matter arises from a hearing before the Principal Magistrate on 18th May 1988 when a Chinese male Choi Yan-Kwong appeared before her on a charge of robbery, he having been arrested on that charge the previous day. The Crown represented by a lay prosecutor, George Chung Kay-Man, applied to the Principal Magistrate to adjourn the matter without plea for 3 days during which time the Defendant would be placed on identification parades in relation to other offences. The Principal Magistrate refused this Application. The Crown then made an alternative application that the matter be adjourned for fourteen days so that legal advice could be obtained. This application was also refused, and, in the absence of any other applications, the Magistrate proceeded to take a plea, and that being one of guilty, to sentence the Defendant to 18 months imprisonment.

3. The Attorney General was unhappy about the Magistrate dealing with the case summarily, without the prosecutor's consent, so applied to her to state a case pursuant to Section 105 of the Magistrates Ordinance. As is usual she accepted the Attorney General's offer to draft the case for her.

4. The first draft was forwarded to her on 7th June. It was as follows :-

"         This is a case stated by the undersigned, a magistrate of Hong Kong, under Section 105 of the Magistrates Ordinance, Chapter 227, for the purpose of appeal to a Judge of the high Court on a question of law which arose before me as hereinafter stated.

At the Magistrates Court in the said territory at San Po Kong on the 18th day of May, 1988, the Respondent appeared before me charged on information in the following terms :

STATEMENT OF OFFENCE:

Robbery, contrary to Section 10(1) of the Theft Ordinance, Cap 210, Laws of Hong Kong.

PARTICULARS OF OFFENCE :

CHOI Yan-kwong, you are charged that on the 17th day of May, 1988, outside the staircase No. 94, Shun Ning Street's rear lane, Kowloon, Hong Kong, you did rob cash $90- Hong Kong currency of LAM Mok-ping.

Detective Inspector T P Deakin was the informant.

The said information was heard and determined by me. The Respondent pleaded quilty to the charge contained in the information. I sentenced the Respondent to 18 months' imprisonment.

AND WHEREAS the Appellant, being dissatisfied with my determination upon the hearing of the said charge and alleging himself to be aggrieved by such determination as being erroneous in point of law, has, pursuant to section 105 of the Magistrates Ordinance, duly applied to me in writing to state and sign a case setting forth the facts and the grounds of such determination as aforesaid, in order that he may appeal therefrom to a judge of the High Court.

NOW THEREFORE I, the said magistrate, in compliance with the said application and the provisions of the Magistrates Ordinance, do hereby state and sign the following case :

CASE

When the matter was called on before me, the charge contained in the information was read and explained to the Respondent. The Court Prosecutor appearing for the Attorney General before me applied for a remand in custody to 21st May, 1988 in order that the Police might be able to conduct ran identification parade. In answer to a question from me, the Court Prosecutor told me that the identification parade related to offences other than that charged in the said information. I refused the application.

The Court Prosecutor asked for a remand in order to obtain legal advice. I refused that application. I informed him that I would take a plea from the Respondent if no other applications were forthcoming. No applications were made by the Prosecutor.

Thereupon, the charge was again read and explained to the Respondent. He pleaded guilty. The facts which are set out below were read to him and he admitted them.

The facts read to the Respondent were :

On 17.5.88, PW1 (DPC 6989) and PW2 (DPC 4807) was on plainclothes anti-crime patrol. At 1500 hrs on the same day, whilst PW1 and 2 patrolled to Ning Yuen St (outside Bossini Boutique), they heard cries of 'Robbery' and then saw an unknown male, later   identified as the defendant running out from the said back alley chased by PW3 (LAM Mok-ping). PW3 then pointed at the defendant and kept on shouting out Robbery. PW1 and 2 then gave chase and managed to stop the defendant outside 15, Ning Yuen Street, the defendant was then taken back to where PW3 was and was positively identified by PW3. On searching the defendant, the exhibit 1 (cash HK$90) was found held inside the right hand of the defendant and was identified by PW3 as belonging to him.

PW3 was holding exhibit 2 fruit knite, 8" in length with traces of food wrapped in one white polythene bag (exhibit 3) in his hands and disclosed that the defendant used it to threatened him. During the robbery, PW3 attempted to grab hold of exhibit 2 from the defendant and as a result, sustained the below injuries:

Right thumb - lacerated measuring 2 cm.

Left index finger - lacerated measuring 2 cm.

Exhibit 3 was then used by PW3 to stop his wound from bleeding. The defendant was then cautioned and arrested for the above offence by PW1 seizing the exhibits.

The defendant was then taken back to Wong Tai Sin Police Station for post arrest documen-tation. Under caution, the defendant said he understood. The defendant was then charged for the above offence by the undersigned.

The Respondent had nothing to say in mitigation.

I sentenced the Respondent to 18 months' imprisonment.

The charge in the information is an indictable one.

At no time did the Appellant consent to the charge being heard and determined by me.

The appearance of the Respondent before me was the first court appearance by him in relation to this charge.The offence was committed the day before his appearance before me.

The questions of law on the above statement for the opinion of this Honourable Court therefore are :

5. Through her clerk the Magistrate responded in a memorandum dated 17th June with which she returned the case for redrafting. I will set out this memorandum in full because in my view its terms seem to encapsulate the attitude of the Magistrate to this affair and do her no credit, displaying in her either a worrying lack of understanding of the points in issue, or an equally worrying determination to practise naivety in the face of what she might have considered to be a disturbingly clear statement of these issues in the first draft of the case forwarded to her by the Attorney General.`

6. It is notorious that cases from her court on more or less the same points that arise in the instant case have been the subject of four appellate tribunal decisions in the fairly recent past. In Magistrates Appeal No. 680 of 1987 Wong Ho Ying and Others v. the Attorney General the decision was handed down by Roberts C.J. on 1st September 1987. In Magistrates Appeals 817 - 827 of 1987 all heard together by O'Dea J. he handed down his decision on 12th October 1987. In Magistrates Appeals Nos 140-142 of 1988 Hooper J. handed down his decision on 12th May 1988. Magistrates Appeal No. 1050 of 1987 was pursuant to Section 118(1)(d) of the Magistrates Ordinance referred to the Court of Appeal whose decision was handed down on 20th July 1988. All of these cases related to the Magistrate's discretion to adjourn cases, to her right to try cases summarily without the Attorney General's consent in accordance with Section 94A of the Ordinance, to her exercise of discretion in striking out cases for want of prosecution, when the prosecution applied for adjournments which she refused, and to her awarding costs against the Crown on their seeking adjournments of cases before her. The ratio decidenti of these cases will no doubt be discussed when the appellant tribunal comes to consider the instant case, but I refer to them at this stage merely to make the point that the issues had been thoroughly canvassed before courts of higher jurisdiction, could not have been clearer, and were in my view concisely and accurately set out in the Attorney General's first draft. However the memorandum went as follows :-

"         After considering the attached draft Case Stated, the Principal Magistrate Mrs. M. Chui made the following comments:

'The Case Stated as drafted is vague. It does not show why consent of the prosecution to the charge being heard and determined by the magistrate was necessary. Is it alleged that the charge was not brought before the magistrate to be heard and determined, and if it is so alleged, the Case Stated should show clearly why the case was brought before the magistrate, for what purpose, and under what law. The Case Stated as it is does not state what point of law the Crown wants the magistrate to state, nor how it is alleged that the magistrate err on the point of law.'

2.        The Case Stated is returned herewith and I am directed to ask you to re-draft it."

7. The Attorney General then sent her a second draft which included some minor amendments accompanied by a letter dated 20th June 1988 which explained these amendments. These specifically referred to Section 94A of the Magistrates Ordinance, though it must have been obvious from the outset that the whole case was about that Section, and also Section 52 of the Police Force Ordinance with which all Magistrates are or ought to be routinely familiar.

8. The next communication from the Principal Magistrate was a memorandum dated 8th July 1980 forwarding a copy of the case stated already signed by the Principal Magistrate. The case as stated by the Magistrate was significantly different from the two drafts previously submitted by the Crown, and yet the Principal Magistrate gave the Crown no opportunity to reflect upon or suggest amendments to the case, as she stated it, before signing it. The case was stated as follows :-

"               This is a case stated by the undersigned, a magistrate of Hong Kong, under Section 105 of the Magistrates Ordinance, Chapter 227, for the purpose of appeal by the Attorney General to a judge of the High Court on a question of law which arose before me as hereinafter stated.

At the Magistrates Court in the said territory at San Po Kong on the 18th day of May, 1988, the Respondent appeared before me charged with robbery, contrary to Section l0(1) of the Theft Ordinance, Cap. 210, Laws of Hong Kong. The Respondent pleaded guilty and was sentenced to 18 months imprisonment.

AND WHEREAS the Appellant, being dissatisfied with my determination as being erroneous in point of law, has, pursuant to Section 105 of the Magistrates Ordinance, applied to me in writing to state and sign a case setting forth the facts and the grounds of such determination as aforesaid, in order that he may appeal therefrom to a judge of the High Court.

NOW THEREFORE I, the said magistrate, in compliance with the said application and the provisions of he Magistrates Ordinance, do hereby state and sign the following case :

CASE

1.              The Appellant is the Attorney General of Hong Kong. Section 12 of the Magistrates Ordinance provides:

'The Attorney General is hereby entrusted with the duty and discretion of conducting the prosecution of all offences cognizable by a magistrate:

Provided :

Section 13 of the Magistrates Ordinance Provides :

'The Attorney General may appoint any public officer or class of public officer to act as public prosecutor or prosecutors and to conduct generally on his behalf any prosecution before a magistrate or any specified classes of prosecutions or any particular case. Any public prosecutor so appointed may without any written authority appear and plead before a magistrate any case of which he has charge is being inquired into, tried or reviewed.'

2.             On the 18th day of May, 1988, the Respondent stood charged before me in the dock with robbery, contrary to section 10(1) of the Theft Ordinance. The particulars of offence were that the Respondent, on the 17th day of May, 1988, at outside the staircase of No. 94, Shun Ning Street rear lane, Kowloon, Hong Kong, robbed LAM Mok-ping of cash $90. Through his prosecutor, the Appellant asked me not to take a plea from the Respondent, but to remand him in custody for 3 days for the police to conduct an identification parade.

3.             Upon enquiry by me, the Appellant said that the identification parade was not in relation to the offence with which the Respondent stood charged before me. No reason was given by he Appellant as to why having been charged with the said offence and brought before the court, the Respondent could not be dealt with according to law.

4.             As the Appellant had given no reason why justice should be delayed, I refused to giant his application for adjournment. Furthermore, an accused person should not be remanded in custody without a plea simply on the asking of the Appellant.

5.             As is usual, the Appellant would not take no for an answer, and immediately renewed his application, and for an even longer period of 14 days, changing the reason for adjournement to 'for legal advice'.

6.             The Appellant brought the prosecution, but the Appellant wanted justice to be delayed because he had not yet considered his legal position. No explanation was given as to why this should not be considered before the prosecution was brought, still less why a simple case of robbery of $90 would take the Appellant 14 days or 336 hours to consider.

7.             The Appellant should not charge a person before he or those to whom he has delegated his power to prosecute have duly considered it. Adjournments must not be treated as automatic. There is no High Court ruling that a magistrate must grant the Appellant's first application for adjournment, however unjustified it may be. Detention without plea, which is tantamount to detention without trial, is contrary to our system of justice. Many applications for adjournment and repeated adjournments are made by the Appellant each day. While reasonable requests are granted, others are not.  In refusing to grant some of these adjournements, I acted at all times in accordance with the spirit as well as the letter of the law, considering that detention without plea is contrary to our system of justice, and considering also that justice delayed is justice denied.

8.             The Appellant had not shown why having put the machinery of justice in motion by charging the Respondent with the said offence and bringing him to court, the machinery of justice should be halted to suit the Appellant. Still less had the Appellant shown why an accused person whom the law presumes to be innocent until proven guilty should be held in custody without plea at the Appellant's pleasure.

9.             As the Appellant had not given any good reason why an adjournment should be granted, if was refused.

10.              Robbery is an indictable offence triable summarily. The Appellant has the right to decide whether it is to be tried summarily in the Magistrates Court, or indictably in the District Court or in the High Court. In view of that, I gave the Appellant the opportunity to exercise his right when the adjournment was refused. I asked the Appellant if he had any other application to make, such as application for transfer of the case to the District Court for trial or for a return date to be fixed for committal proceedings to the High Court. I indicated to the Appellant that I would take a plea from Respondent and deal with the case summarily if there was no such application by the Appellant.

11.             No application for transfer to the District Court or for return date to be fixed for committal proceedings was made by the Appellant. The Appellant expressed no intention of having he offence dealt with indictably. Thereupon, the charge was read and explained to the Respondent. Upon his plea of guilty and admission of the facts I convicted the Respondent.

12.              After having asked the Respondent if he had anything to say in mitigation, and after the Respondent had indicated that he had nothing to say in mitigation, I sentenced him to 18 months imprisonment.

13.              The Appellant now seeks to argue that the offence being an indictable one, I had no jurisdiction to deal with it unless the consent of the Appellant had been obtained. He relies on Section 94A of the Magistrates Ordinance, Chapter 227.

14.              Section 94A of the Magistrates Ordinance reads as follows:

'Notwithstanding anything contained in section 91, 92 or 94, an indictable offence shall not be dealt with summarily, unless the consent of the prosecutor has been obtained'.

15.              Sections 91 and 94 concern the jurisdiction of a special magistrate, but Section 92 reads as follows :

'Whenever any person is accused before a permanent magistrate of any indictable offence except an offence specified in the first part of the Second Schedule, the magistrate, instead of committing the accused for trial before the court, may deal with the case and convict the accused summarily, and on conviction may sentence the accused to imprisonment for 2 years or to a fine of $l0,000:

Provided that nothing in this section shall affect any greater punishment specifically provided for in any other Ordinance.'

16.            Sections 91, 92 and 94 may at first sight appear to undermine the power of the Appellant to choose the venue of trial of an indictable offence, a situation which Section 94A may at first sight appear to remedy. However, a careful examination of the Magistrates Ordinance will show that neither Section 91, 92 nor 94 affects this power of the Attorney General. What Sections 91, 92 and 94 in fact do is to set out the level of punishment which a magistrate may impose in respect of indictable offences dealt with summarily by him. Sections 91; 92 and 94 do not override Section 80A and Section 88 of the Ordinance, which require magistrates to deal with indictable offences in accordance with the declared intention of the Appellant.

From this it is clear that in respect of an indictable offence, a magistrate must appoint a return day for committal proceedings to the High Court if the Appellant so required. Sections 91, 92 and 94 have done nothing to change that.

From this it is clear that a magistrate must transfer an indictable offence to the District Court if so required by the Appellant.

Again, Sections 91, 92 and 94 have done nothing to change that.

19.             It would therefore be illogical to interpret Section 94A as meaning that whenever any indictable offence is brought before a magistrate, the magistrate must obtain the consent of the prosecutor before he can deal with it summarily. Consent to deal with any indictable offence is unnecessary in view of Section 80A and Section 88 which require a magistrate to deal with indictable offences in the way provided in Section 80A and Section 88. Indictable offences are brought before magistrates everyday and are dealt with summarily by magistrates everyday without any express consent having been obtained from the prosecutor. Consent would be implied in the absence of application under Section 80A or Section 88. At no tine in my experience had any prosecutor ever expressly consent to any indictable offence being dealt with summarily by a magistrate before he dealt with it. The fact that an indictable offence is brought before a magistrate other than for committal proceedings must mean that the offence is to be dealt with by the magistrate in the exercise of his summary jurisdiction, in the absence of any application to the magistrate to have the offence transferred to the District Court.

20.              Furthermore, it is important to note that indictable offence has its own meaning in the Ordinance. Section 2 defines an indictable offence as any crime or offence for which a magistrate is 'authorised' or 'empowered' or 'required' to commit the accused person for trial. An indictable offence for which a magistrate has not been authorized', 'empowered', or 'required' to commit the accused person for trial is not therefore the type of offence contemplated by the legislature in Section 94A.

21.              Section 94A therefore applies only to indictable offences as defined by the Ordinance, i.e. offences for which a maigistrate is authorised or empowered or required to commit the accused person for trial, when those of offences are to be converted to summary trial under the procedure laid down in Section 93. Section 94A was added to cater for the Section 93 type of situation, namely conversion to summary proceedings in the course of committal proceedings. It follows that Section 94A requires the consent of the prosecutor, express or implied, to be obtained by a magistrate only in cases where committal proceedings are to be converted back to summary proceedings. There is no requirement for a magistrate to obtain the consent of the prosecutor when he deals with any indictable offence which he has not been authorised, empowered, or required to commit an accused person for trial.

22.             The general principles of interpretation of an ordinance is that it shall receive such fair large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit - Section 19 of the Interpretation and General Clauses Ordinance, Cap. 1.

23.             An interpretation that would allow the Appellant to use Section 94A to force a magistrate to remand an accused person for as long as the Appellant desires would not be a fair, large and liberal interpretation of Section 94A. Such an interpretation would mean that the appellant can have any person charged with an indictable offence - and numerous offences are summary as well as indictable - remanded without trial until such time the Appellant gives consent to the magistrate to deal with him, and the magistrate would be powerless to do anything about it. Such an interpretation would take justice out of the hands of magistrates and consequently out of reach of accused persons.

24.              Once a case is brought before a magistrate, the magistrate should be in control of its progress, not the police or the Appellant. If Section 94A were to be interpreted in the way the Appellant has suggested that it should be, the Appellant, rather than the magistrate, would be in control of the speed with which justice is dispensed. Such could not have been the intention of the legislature.

25.              When the adjournment under different names was refused, I gave the Appellant every opportunity to choose whether to proceed with the case indictably in the District Court or in the High Court. However, no application was made by the Appellant for trial on indictment either in the District Court or in the High Court. It must be noted that a transfer to the District Court could only be made on application - Section 88 of the Magistrates Ordinance.

26.             In Case Stated SPK 14532 of 1987 (Magistracy Appeal No. 680 of 1987) Roberts, C.J. said that a date for trial or a return date, as the case might be, should be fixed when an adjournment was refused. He said at page 6 :

'The usual practice of magistrates faced with what they regard as unreasonable delays is to do what I suggest the Principal Magistrate should have done in this case, that is to say, a date for trial or a return date as the case may be, should be fixed and the prosecution warned that if they were not in a position to proceed on that date there was a risk that the proceedings would be discharged.'

27.              Acting in accordance with that decision of Roberts, C.J., I indicated to the Appellant that in the absence of any application by the Appellant to fix a return date for committal proceedings, I would take a plea from the Respondent, and set a date for trial should the plea be one of not guilty. In the event, a plea was taken from the Respondent and the case dealt with summarily, there being no application for transfer of the case to the District Court, either. As the offence involved only a sum of $90, it would be inappropriate for me to fix a return date for committal proceedings to the High Court, involving the expense of trial by judge and jury, in the absence of application by the Appellant that this was to be so.

The questions of law on the above statement for the opinion of the judge of the High Court are :

Dated this 7th day of July 1988."

9. Not surprisingly there then followed on 26th July 1988 an application in terms of Section 107 of the Magistrates Ordinance by the Attorney General to the Principal Magistrate to amend the case as she had stated it to include a statement of the facts of the robbery case as well as a separate reference to the circumstances of the Defendant's appearance before the Magistrate. The Attorney General also asked that one of the questions of law he amended.

10. On 15th August what was termed a "Rider" was forwarded to the Attorney General by the Principal Magistrate and this in general terms stated why the Magistrate refused to amend the case stated, except in relation to one of the two questions of law.

11. I am not, of course, here asked to make any ruling on the merits of the case, however it is stated, but, as Mr Whaley on behalf of the Attorney General pointed out, I am asked merely to deal with the narrow point of the form and content of the stated case.

12. There is in Attorney General v. Leung Chi-Kin⁽¹⁾, per Huggins J. a clear enunciation of the correct form that a case stated should take. He said :-

"The case stated should contain in numbered paragraphs:

13. As an editorial note at the beginning of the report properly states, the form of a case stated is in any event prescribed in Form 97 in Part V of the Schedule to the Magistrates (Forms) Rules.

14. Huggins J. and Form 97 concur in their requirement that the facts must be set out or so much of them as are required to raise the points of law. The points of law in this case were whether the Magistrate properly refused the Crown's applications for adjournment and whether the Magistrate was right in the circumstances to deal with the matter summarily. Any facts, therefore, relevant to these issues should clearly be included in the stated case.

15. I am bound to say that in style, form content the case as stated by he Magistrate seem to offend against at least the spirit both of the directions of Huggins J. in Attorney General v. Leung Chi-Kin⁽¹⁾ supra and Form 97 of the Magistrates (Form) Rules. However, the Attorney General confines his complaints to those contained in his application to amend of 26th July 1988. The Attorney General contends that the facts of the robbery offence are highly relevant and should be included in the case stated. He says that the applications for adjournment, or certainly the one asking for fourteen days to apply for legal advice, relate inter alia to legal advice upon the selection of venue for the case which it was not within the authority of George Chung Kay-man to determine. The argument goes on that one of the points of law is whether the Magistrate should have granted the adjournment, in other words did she properly or reasonably exercise her discretion in refusing the adjournment. The Attorneys General's argument concludes that as the selection of venue is determined inter alia by the seriousness of the offence, then the facts describing how the offence was committed are highly relevant to the issue of venue and should be included in the case stated.As well as which he says, the fact that the offence had only been committed the previous day, and that this was the Defendant's first appearance, is also relevant in deciding whether the Principal Magistrate acted reasonably, and that reference to the circumstances of the Defendant's appearance should therefore be highlighted in the case stated.

16. I consider the Crown's arguments to be unanswerable on these points, and find inexplicable the Principal Magistrate's refusal to amend the case accordingly and as requested in the Crown's application to amend dated 26th July 1988 so far as the facts are concerned. The so-called "Rider" Iregard with the same level of concern as I do the memorandum of 17th June. In it the Magistrate (l) misstates the position, (2) shows a lack of understanding of case stated procedure,and (3) demonstrates an apparent failure to grasp the issues.

17. Dealing with each of these matters in turn: (1), she states in paragraph l : "The question of consent of the prosecutor being necessary before any indictable offence could dealt with summarily was never raised in the proceedings before me". In the case stated which she drafted she sets out in Paragraph 2 .... "Through his prosecutor, the Appellant asked me not to take a plea from the Respondent, but to remand him in custody for 3 days for the police to conduct an identification parade ....” She knows or ought to know that it is at least arguable that that was a clear indication from the prosecution that it did not wish her to proceed with the case summarily that day, and by necessary implication therefore was a clear reference to the prosecutor's consent or absence of it.

(2), when dealing in this rider with the circumstance's of the offence she fails to appreciate that the case stated itself should contain references to all necessary and relevant facts.She says : "The Brief Facts of the Case forms part of the record."

18. And (3) in stating that ..... "The circumstances of the offence is in fact irrelevant to the appeal"..... She clearly fails to grasp the relevance of these facts to the exercise of her discretion in refusing the adjournment, and therefore to the first question of law.

19. It is my view that the questions of law is drafted by the Attorney General in his first and second drafts were clear and unambiguous as well as being accurate. The way in which the Magistrate herself drafted the second question of law concerning her dealing with the case summarily is more an extension of her argument than an accurate statement of the real legal issue, which was whether she had acted in accordance with Section 94A of the Magistrates Ordinance. In my view the Attorney General quite properly asked her to make the question a wider one than the one she had drafted. It seems to me, however, that she has done that by agreeing that the words "considering Section 94A of the Magistrates Ordinance" be added to her draft of the question. While the draft of the second question might then be unnecessarily clumsy,the appellate court could be in no doubt as to what the question of law was. I therefore do not agree with Mr Whaley's submission that in regard to that question of law also she has refused to amend the case stated when she ought not to have refuse.

20. I believe these proceedings have been made necessary by the intractable attitude of the Magistrate throught out this whole unhappy episode. Her apparent determination to advance her own arguments in full in the case stated blinded her to the need to follow proper procedure as well as to allow the Attorney General, who is the appellant after all, to include in the case those matters he wished to advance in support of his appeal. The Attorney General's suggested amendments to her case in relation to the facts are in my view necessary, perfectly proper, and reasonable and it is my view that she ought to accede to them.

21. I therefore grant the relief sought being an order of certiorari to quash the decision of the Magistrate expressed in the form of "the rider" save that reference to her refusal to amend the second question of law shall be ommitted. There shall also be an order of mandamus directing her to amend the case stated in accordance with the Attorney General's Application to amend dated 26th July 1988 save again that reference to the amendment of the second question of law will be ommitted.

22. The Attorney General did not ask for costs but I was happy to have Mr Whaley's assurance that such forebearance would not necessarily be practised in future. I cannot think that it is right that the public purse should be opened to meet the costs of an application such as this.

(1) [1974] H.K.L.R. 269.

Representation:

Mr. B. Whaley for Crown.