Gerald Arthur Harknett v. Rodney Brian Venning Esq Permmanent Magistrate

HCMP001345A/1983

The Commissioner of I.C.A.C. applied under S.17A of the Prevention of Bribery Ordinance for a notice to be issued to a suspect requiring him to surrender his travel document -- the suspect applied under S.104(1) of the Magistrates Ordinance for a review of the decision of the Magistrate to issue the said notice -- the Magistrate granted an order for review and ordered the travel document to be returned to the suspect -- the Commissioner applied for a declaration that the Magistrate's order for review "was made unlawfully and without jurisdiction"

Full Bench (by majority):

Declaration granted in terms.

No. 1345 of 1983

IN THE HIGH COURT OF JUSTICE

FULL BENCH

MISCELLANEOUS PROCEENDINGS

BETWEEN

Coram: Hon. Liu, Jackson-Lipkin and Barnes JJ in Full Bench

Date: 25th & 26th July 1983, 21st September 1983 and 1st November 1983.

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J U D G M E N T

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LIU J.:

1. Under section 17A of the Prevention of Bribery Ordinance Cap.201, a magistrate may, on the application of the Commissioner of I.C.A.C., by a notice in writing require a suspect to surrender his travel documents to the Commissioner. On the 19th April this year, the Commissioner applied for the issuance of a notice under that section not merely for the surrender of travel documents of the suspect but for the surrender of his travel documents for a period of 6 months.

2. On the 1st August 1983, in a separate proceeding intituled M.P. 1484/83 G.A. Harknett v. M.D. Hills, Esq. Permanent Magistrate, this Full Bench addressed itself, inter alia, to the aspects of whether a like notice, once issued, had become spent and if not, what power was reposed in a magistrate to withdraw the same. The learned Magistrate in the instant case did not purport to withdraw his notice. He sought exclusively to invoke his power of review under section 104 of the Magistrates Ordinance Cap. 227. In his amended Notice of Motion, the applicant prays for a declaration that the Magistrate's order for review "was made unlawfully and without jurisdiction".

3. The learned Magistrate in these proceedings was also invited to and did obligingly issue the said notice in the form of an order. That had not drawn much real criticism from either party before us, and we were not assisted on the impact of section 40(1) of the Magistrates Ordinance.

4. Marginal notes, such as that of "summary order" to section 40 of the Magistrates Ordinance, have been decidedly excluded for the purpose of statutory interpretation, but whatever purpose "summary order" in the margin of section 40 was devised to serve, the language of section 40(1) itself is worthy of note. It reads:

"Where a power is given by any future enactment to a magistrate of requiring any person to do.... any act or thing, ..... and no mode is prescribed of enforcing such requisition, a magistrate may exercise such power by an order and may annex thereto any conditions as to time or mode of action which he may think just, and may suspend or rescind such order on such undertaking being given or condition being performed as he may think just, ......."

5. In the instant case, as has been indicated, the learned Magistrate merely called in aid his power of review under section 104(1) of the Magistrates Ordinance, whereby the magisterial power of review is exercisable only with reference to a "determination in any manner by a magistrate of any matter which he has power to determine in a summary way". The real question to be asked is, therefore, whether the issued section 17A notice fell within the meaning of a determination of such a matter.

6. Consequently, stripped of all irrelevancies, the central issue before this Full Bench was whether the said notice given under section 17A of the Prevention of Bribery Ordinance Cap.201 on the 19th April was revlewable under section 104 of the Magistrates Ordinance Cap. 227.

7. Section 104(1) of the Magistrates Ordinance is set out below:

"104(1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter."

8. The words "in a summary way" have consistently been understood to mean "summary jurisdiction". As early as 1897, Lord Davey said of these words with reference to justices as being an exercise of their summary jurisdiction in these terms:

"There were, however, a great many Acts by which jusitces were authorised to deal with certain specified matters in a summary way, and in most of which a mode of procedure was prescribed. Doubts appear to have been entertained whether the section applied to such cases, and it was considered desirable to assimilate the procedure in all cases of summary jurisdiction."⁽¹⁾

9. It can readily be seen that in their ordinary sense the words "in a summary way" are inherently allied to the term "summary jurisdiction". Taken independently, a summary determination or a determination made summarily means a decision or a conclusion reached without much ado, but arriving at a determination "in a summary way" within the ambit of the Magistrates Ordinance carries a different connotation and is a far cry from provisionally accepting as sufficient evidence on certain elementary prerequisites presented as required by law.

10. Under section 17A of the Prevention of Bribery Ordinance, there is no prescribed time limit for the service of the notice for the surrender of travel documents. Subsection (2) merely requires a notice under subsection (1) to be served personally on a person to whom it is addressed. Turning back to section 104(1) of the Magistrates Ordinance, the time limited for invoking the power of review is 14 days. Thus, there is a distinct possibility that at the expiration of such 14 days' period, the Commissioner of I.C.A.C. may not even have served his section 17A notice. Again, under section 104(5), on his own initiative and within such 14 days' period, a magistrate may review his decision. If in fact the section 17A notice had yet to be served by that time, the very concept of confidentiality would be destroyed. Furthermore, section 104(8) enables a magistrate to secure the attendance of the "parties" and witnesses for the purposes of his review. If he should resort to this course, the provisions in section 17A, Cap. 201 for an ex parte application would be rendered wholly meaningless.

11. In its universally accepted meaning in the context of the Magistrates Ordinance, a matter which a magistrate "has power to determine in a summary way" is a matter which he has power to decide as a court of summary jurisdiction. Summary jurisdiction is a creature of statute. It is well settled that magistrates do not in all cases function as a court of summary jurisdiction. One must look to the purpose and spirit of the enactment whereby a magistrate is empowered to act. Moreover, when section 104 of the Magistrates Ordinance is more closely examined, it is plain that the section calls for the continued participation of the adverse parties in an adjudication. After all, the essence is to have the case re-opened.

12. Returning once more to section 17A of the Prevention of Bribery Ordinance: Before the service of the issued notice, the suspect may be said to be involved, but in no way can he intervene or participate. At least prior to proceedings consequential upon the service of the issued notice, in acceding to the request of the I.C.A.C. Commissioner, a magistrate cannot be adjudicating in a summary way.

13. In conclusion, I take the view that the issuance of the notice was not a matter which the learned Magistrate had power to determine as a court of summary jurisdiction or in a summary way. The learned Magistrate was simply satisfied with the materials placed before him on the Commissioner's application under section 17A of the Prevention of Bribery Ordinance. Hence, his order was not reviewable under section 104 of the Magistrates Ordinance.

14. Were it not for the undertaking given by Crown counsel to desist from reinstating the effect of the section 17A notice, I, for my part, would feel constrained to seriously consider whether judicial discretion should be exercised in the light of section 40(1) of the Magistrates Ordinance and section 46(c) of the Interpretation and General Clauses Ordinance, but in the circumstances I would grant the declaration sought.

(1) Boulter v. Kent Justices [1897] AC 556 at p.572

Representation:

Mr. Graham, Mr. Strawbridge and Mr. Kilgour, Crown Solicitor, for the Applicant.

Mr. Sedgwick instructed by the Registrar Supreme Court as amicus curiae for Respondent on 25th July 1983.

Mr. Ronny Tong instructed by the Registrar Supreme Court as amicus curiae for Respondent on 21st September 1983.

Ms. Quan instructed by Messrs. Philip K.H. Wong for the passport holder on 25th July 1983.

FULL BENCH

Miscellaneous Proceedings

BETWEEN:-

Coram: The Honourable Mr. Justice Liu, The Honourable Mr. Justice Jackson-Lipkin, and The Honourable Mr. Justice Barnes

Date: 1st November 1983

Time: 9.30 a.m.

Appearances:      Graham, Strawbridge and Kilgour for the Applicant. Sedgwick and Ronny Tong as     amici curiae and for the Respondent.

(Miss) Quan for the passport holder.

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J U D G M E N T

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15. On 25th of July 1983 Mr. Graham and Mr. Kiltour moved by leave of Hunter and Mantell, JJ., granted on 24th June 1983, for an Order of Certiorari to quash a decision of the Respondent made on 13th May 1983, whereby the Respondent, on the application of the person directed by my brother Liu to be called "the passport holder", invoked his powers under s. 104 of The Magistrates Ordinance to review an "Order" made by the Respondent on 19th April 1983.

16. In order properly to understand the astonishing position in which we found ourselves, and the tortuous path which we were obliged to follow, it is necessary to review the history of this matter.

17. On 19th April 1983 the applicant, purportedly acting under the provision of s. 17A of the Prevention of Bribery Ordinance, issued a notice of application on Form ICAC 113 directed to the Western Magistracy. I say "purportedly", because the ICAC 113 did not follow the format required by s. 17A(1), in that certain additional words had been added in typescript, words which, in this matter, assumed great significance. Those words were as follows, "for a period of six months/for a further period of three months." after the words "in his possession" at the end of both the printed document and the sub-section, to which I have referred. In support of that application, two Informations, each numbered 488/83, were sworn by John Gordon Bacon of the I.C.A.C. on 18th April 1983. There were added to the end of the second of those Informations, Exhibit G.H.3. to the affidavit of the applicant sworn on 16th June 1983, the following words, "for a period of six months from this date.". The same words also appear on the first of the two Informations, Exhibit G.H.2. to the applicant's said affidavit, but do not appear so obviously to have been added subsequent to the original typ'ing, as in Exhibit G.H.3..

18. On 19th April 1983, the Respondent, instead of "by written notice" requiring the passport holder "to surrender to the Commissioner any travel document in his possession", gave notice to the passport holder that "AN ORDER" had been made by him that he surrender to the Commissioner any travel documents in his possession for a period of six months. The learned Magistrate was quite clearly led into error in making an Order, as opposed to a written notice, because the form presented to him for signature was an ICAC 114(S), on which were printed the words "AN ORDER" and "for a period of six months/for a further period of three months.".

19. All those bizarre errors went unnoticed until the hearing of Harknett v. Hill, a judicial review numbered 1484/83, in which we gave judgment on 1st August 1983. They do, however, have some bearing on this application, and to such bearing I will come in a moment.

20. On 13th May 1983, the passport holder went before the Respondent and applied for a review of the "Order" of 19th April, principally on the basis that the totality of the circumstances had never been provided to the Respondent. The Crown's submissions appear on pages 2-3 of that decision, which is to be found as Exhibit C.K.C.1 to the affidavit of Chan Kwok-ching sworn in this Motion on 25th July 1983. In it, the Respondent refers to having "made an Order", but describes that as "a routine administrative matter on the provision to the Court of information that the applicant was under investigation.". The Respondent indicated that, if the material had been before him when the original application under s. 17A was made, he would have declined the application: Accordingly he reviewed his earlier decision and rescinded his "Order" under s. 17A. The Crown then, apparently, raised the point that, as the original application under s. 17A had been made ex parte, the passport holder was not strictly a party and, corsequently, was not entitled to apply for a review. The Respondent rejected that submission, which incidentally, was revived before us.

21. When the Motion was called on before us on 25th July, Miss Quan for the passport holder raised a preliminary objection, namely that the provisions of O. 53 r. 9(2) had not been complied with, and that the Order of the Respondent, which the applicant was seeking to have quashed, had not been lodged. The Crown applied later that day, 25th July, to lodge the affidavit of Mr. Chan Kwok-ching, to which I have referred above, exhibiting, as C.K.1, the decision of the Respondent. He dealt with that application and dismissed it, and gave our reasons for so doing on 25th July.

22. However, rather than have the matter fail in limine, we gave leave to the Crown to amend its Statement, lodged under O. 53 r. 3(2), and its Notice of Motion, lodged on 1st July 1983, to add, as an alternative to the prayer for an Order of Certiorari, an additional prayer for a Declaration that the Respondent had acted without jurisdiction in purporting to review his decision pursuant to the powers contained in s. 104 of The Magistrates Ordinance. Having given that leave, we dismissed the original prayer (that is, the one for Certiorari), made an Order for costs in favour of the passport holder and, inter alia, stood over the Motion to a date to be fixed. The Amended Motion, or, rather, what remained of it, came back before us on 21st September, that is to say in The Long Vacation, for reasons that, speaking for myself, I do not understand. Leave to amend the original Motion had been given on an undertaking of the applicant by his Counsel that, whatever the result, no attempt would be made on 19th April. There was, accordingly, no urgency, and nothing to justify the Motion being restored as "Vaction Business", although, we were informed, the Crown had managed to persuade the Chief Justice that it was a matter of urgency (sic).

23. Having completed my recitation of the chronology, I now pass to the merits.

24. The Crown's first submission was that, once an Order had been made under s. 17A, it was spent, and thereafter the detention of travel documents was a matter for the exercise of the Commissioner's discretion, and that his decision could be challenged by way of Judicial Review in appropriate circumstances. That argument failed by reason of the "bizarre" events to which I have referred above, namely the wording of the ICAC 113 (Exhibit G.A.H.1), the two H.K.M. 102(S.) (Exhibits G.A.H.2 and 3) and the "Order" on ICAC 104(S) (Exhibit G.A.H.4.): It may well have been am argument sound in law if the application had been made in proper form, asking for such relief as was envisaged by s. 17A(1), and if the Respondent had acted in accordance with s. 17A(1), and not made "an Order", or one with a fixed time limit. In the circumstances it does not fall to me to say more on that, save that, before us, the Crown abandoned that argument for the purposes for the present Motion.

25. S. 104(1) of The Magistrates Ordinance reads, "Within 14 clear days after the determination in any manner by a Magistrate of any matter which he has power to determine in a summary way, it shall be lawful for either party thereto to apply to the Magistrate to review his decision in that matter.". Five points on that sub-section were raised before us, namely:-

(a) Was the action of the Respondent on 19/4/83 a "determination"?

(b) What is the significance of the word "in any manner", and could those words cover an ex parte application?

(c) What is the meaning of "any matter", and can it cover an application under s. 17A of the Prevention of Bribery Ordinance?

(d) What is the meaning of "any matter which he has power to determine in the summary way", and can or does it extend to cover up an application under the said s. 17A and

(e) What is the significance of the words "either party thereto", and is it an irresistible inference that the presence of those words in this sub-section precludes a Magistrate from entertaining an application by a person affected by an Order under s. 17A(1), but who was not present, as the application was, by its nature, made ex parte.

26. I will deal with (e) first. In my judgment, those words were intended to and must refer to any party affected by the original decision. It is, in essence, no different from the position of a Respondent to an ex parte injunction or an Anton Piller order, which, by its very nature, must be made ex parte in the first instance. It was submitted, on behalf of the applicant, that, at the making of the application, there was only one party, at the making of the decision there was only on party, but that, once the decision had been made, there were two parties, and, consequently, there having been only one party to the making of the decision, it was not open to the person "aggrieved" or "affected" to apply for a review. In my judgment, as a matter of both common sense nd simple construction, such an argument is untenable. The wording, of course, precludes, for example, an aggrieved spouse from applying for a review and seeking either a harsher or lighter sentence for her or his spouse, a Government Department with an interest in the decision but not a party to it seeking a review to have the decision varied, and so on.

27. I now pass to (a). It was argued on behalf of the Crown that, being ex parte and "administrative", the "Order" of 19/4/83 was not a "determination". In my judgment, that argument is also untenable. What s. 17A(1) does not say is, "A Magistrate shall on receipt of a written notice on behalf of the Commissioner require a person ........". The use of the word "may" by the Legislature makes it clear beyond preadventure that the Magistrate has a discretion, which, of course, he must exercise judicially, to decide "on the application of the Commissioner" whether or not to issue a written Notice. He may not be satisfied with the information put before him: Although it is difficult to imagine circumstances where that may be so, the sub-section clearly envisages such a situation, and, consequently, in my judgment any decision by the Magistrate to issue a written Notice in the light of the wording of that sub-section must be, and can only be, a "determination".

28. With regard to (b), the words "in any manner" are as wide as can be. They cover such divers methods as a hearing in Court or a hearing in Chambers, a hearing of a written application and a hearing of an oral application, a hearing of evidence on oath or a hearing on sworn information. Those are not exhaustive, but it would be difficult to envisege a phrase of wider application. I fully appreciate that, in some pleadings, one encounters such words as "whatsoever" following "in any manner". Such words, however, add nothing to "in any manner" and, in the context of the criminal law, could not enlarge the meaning of the phrase "in any manner" so as to include a wholly capricious or injudicious manner.

29. (c) can be said to fall within the same category as (b). "Any matter" means "any matter", and I resist the temptation to add the word "whatsoever" as it is implicit in the phrase itself. The words, subject to the following phrase to which I shall come in a moment, embrace everything that may lawfully come before a Magistrate.

30. I now come to (d), the most important, and, indeed, the most difficult, of the Crown's submissions. The Crown says that the decision of a Magistrate on an application under s. 17A of the Prevention of Bribery Ordinance under s. 17A of the Prevention of Bribery Ordinance is not susceptible to the provisions of s. 104(1) of The Magistrates Ordinance for two reasons:-

(i) The Prevention of Bribery Ordinance provides a complete and entire code of its own, in which there is no room for the power of review under s. 104(1).

(ii) In any event, proceedings under the Magistrates Ordinance to exercise the power conferred on Magistrates by s. 17A on the Prevention of Bribery Ordinance do not, and can not, in law, amount to a determination "in a summary way".

(i) The first part of that argument depends on construction of the Prevention of Bribery Ordinance. S. 14A of the Prevention of Bribery Ordinance empowers the Commissioner to direct a suspect not to dispose of or to deal with his property without the Commissioner's consent. An appeal against the refusal of such consent is provided by s. 14B. S. 14C provides for the Commissioner to apply ex parte to the Court for a restraining order, and s. 14D(2) provides an "appeal" procedure, whereby the person upon whom such a restraining order has been served may apply to the Court for it to be revoked or varied. S. 33A(1) empowers the Court to prohibit the employment of a convicted person, and sub-section (2) of that section provides an "appeal" procedure by way of application to the Court for variation or cancellation of the Order at any time during its continuance in force. S. 18 of that Ordinance, provides for the granting of bail where the Commissioner applies for a warrant against a suspect (not, it is to be noted, a person charged), and sub-section (7) of that section provides that Part VII of The Magistrates Ordinance shall apply to appeals against an order or determination of a Magistrate under that section. The Crown submits that, as a matter of construction, the combination of those "appeal" procedure in the Prevention of Bribery Ordinance indicates that the Legislature clearly intended to exclude the powers of review under s. 104 of The Magistrates Ordinance and, therefore, Respondent had no jurisdiction to entertain an application under s. 104 of The Magistrates Ordinance in respect of his decision under s. 17A of the Prevention of Bribery Ordinance. In my judgment that is not so. There is a fatal flaw in the argument. The sections to which I have just referred are in the nature of "enabling" sections, and are not prohibitory in nature. S. 14B provides for an application to the Court by a person aggrieved by an order under s. 14A where such person would otherwise have no right so to apply to any Court, but would be left only with the remedy of Judicial Review. Thus s. 14B bestows an additional power on the Court, which it otherwise would not have; s. 14D(2) empowers the Court which has made a restraining order, at any time during the currency of that order, (and, consequently, possibly outside the "14 clear days" of s. 104(1) of The Magistrates Ordinance) to revoke or to vary the order - thus enabling the person aggrieved to go back to the same Court, instead of having to apply to a higher Court either on appeal or by the way of Judicial Review. In other words, it is bestowing additional jurisdiction on the same Court that made the order in the first place, a power which it otherwise would not have; s. 33A(2) in like manner enables the Court to entertain an application for cancellation or variation, which it otherwise would not have, thus obviating the necessity for an appeal or an application for Judicial Review; and s. 18(7) applies the appeal procedures of The Magistrates Ordinance to the act of a Magistrate under s. 18(1) to which, otherwise, the appeal procedures of The Magistrates Ordinance would have no application at all, the "person" not otherwise being subject to the criminal law, no Complaint or Information having been made or laid against him. In my judgment, therefore, there is nothing in the Prevention of Bribery Ordinance of which it can be properly said that it demonstrates, in clear and express terms the intention of the Legislature to exclude the powers conferred on Magistrates under s. 104 of The Magistrates Ordinance.

(ii) The question then remains is this a determination "in a summary way". The Crown avers that it is not, and points to the lack of a Complaint or Information, to the deeming provisions of s. 18(7) of the Prevention of Bribery Ordinance and further says that this is not such a matter as was contemplated by the Legislature when it used the term "in a summary way" in s. 104 of The Magistrates Ordinance. I will deal with s. 18(7) first. Sub-section (7) must be read as a whole, and due weight must be given to the words "and, accordingly," in the fourth line thereof. Quite clearly the whole section is designed to give a right of appeal under the procedures in Part VII of The Magistrates Ordinance, and the earlier wording constituting the "deeming", on which the Crown relies, must be interpreted in that context. The deeming is that the proceedings fall within the provisions of ss. 105 and 113(3) of The Magistrates Ordinance, and "accordingly" the appeal provisions apply to an order made under s. 18 of the Prevention of Bribery Ordinance. It follows from what I have said that I have gained no assistance from s. 18, and that, in my judgment, it can not be taken as a clear and express intention of the Legislature to preclude the application of s. 104 of The Magistrates Ordinance to a decision under s. 17A of the Prevention of Bribery Ordinance.

There now remains the vexed question of whether or not action taken by the Magistrate under s. 17A of the Prevention of Bribery Ordinance is an exercise of his summary jurisdiction: Has he made his determination, exercising his discretion judicially, to accede to the Commissioner's application under s. 17A "in a summary way".

31. It is pertinent, I believe, to note that neither the Interpretation and General Clauses Ordinance nor The Magistrates Ordinance provides Hong Kong with a definition of "Court of summary jurisdiction" or "summary jurisdiction" or even "summary way". The definition in s. 13(11) of the Interpretation Act 1889, therefore, affords me no assistance, and I must take it that the powers of a magistrate are only those to be found in s. 5 of The Magistrates Ordinance. S. 5(2) provides that "a Permanent Magistrate shall exercise all the jurisdiction and powers conferred on a Magistrate by any enactment in force in the Colony and also such jurisdiction and powers has made from time to time be conferred on a Permanent Magistrate.", and, consequently, one can not look at such textbooks as Halsbury's Laws of England or such authorities as Boulter v. The Justices of Kent & Ors. [1897] A.C. 556, R. v. East Riding of Yorkshire Quarter Sessiong ex parte Newton & Ors. [1968] 1 Q.R. 43 and R. v. Justices of Clamorganshire: R. v. Justices of Pontypool [1892] 1 O.B. 621 (which survived the Boulter Case (supra): See p. 52 of the East Riding O.S. Case) for anything more than guidance of the most general nature. When s. 104 of The Magistrates Ordinance says "any matter which he has determined in the summary way", must I construe that in its ordinary sense of "any matter" which the Magistrate can deal with in a "summary way", or must it be confined within the established definitions in England of the exercise of "summary jurisdiction". Quite clearly it is something different from that contemplated in s. 105, which is restricted to complaints, informations, charges or other proceedings (construed sui generis) and s. 113(3) which is confined to complaints or other proceedings (construed sui generis). In England, the Summary Jurisdiction (Appeals) Act 1933 used the phrase "conviction, sentence, order, determination or other decision", thus clearly demonstrating the difference between these various acts of Magistrates, and I must ask myself why the Legislature in Hong Kong chose to use wording so widely different in s. 104 from that in ss. 105, 113(1) and 133. In my judgment the Legislature must, on a straightforward construction of s. 104(1), have intended the power to review to extend to everything that a Magistrate did, other than acts of a purely administrative nature or anything done while sitting as a Committing Magistrate under Part III of The Magistrates Ordinance or as a transferring Magistrate under Part IV. I know of no other power in a Magistrate than to perform administrative acts, to determine matters before him in a summary way, to commit for trial or to transfer to the District Court, and no others have been advanced us on this Motion. Into which category, therefore, does a "decision" under s. 17A of the Prevention of Bribery Ordinance fall? It can only be an administrative act or a determination in a summary way. Administrative acts are referred to in numerous textbooks and include such matters as stopping-up streets, listing of cases, distribution of work, disposal of Court funds, disposal of exhibits, permitting public meetings or processions and the like. I have already dealt with the word "determination", and I find myself forced to the conclusion that what the Respondent did on 19th April 1983, was to exercise his judicial discretion judicially, qua Permanent Magistrate, in the exercise of his powers under the Ordinance. If, therefore, he was not acting administratively, the only thing he could have been doing, because there is nothing else, was acting in a summary way under the provisions of the Ordinance. I have looked carefully through the Summary Jurisdiction Act 1848, the Corrupt Practices Prevention Act 1854, the Corrupt Practices Prevention Act 1863, the Summary Jurisdiction Act 1879, the Corrupt and the Legal Practices Prevention Act 1883, the Summary Jurisdiction (Appeals) Act 1933 and the Magistrates' Courts Act 1952, Volume 21 of the 2nd Edition of Halsbury's Laws of England and Volume 29 of the 4th Edition, as well as the authorities to which I have referred above, and I can not believe that the Legislature intended, by s. 104 of The Magistrates Ordinance, to confer an entirely new and distinct power on the Magistrates of Hong Kong hitherto unknown and undefined, and, in my judgment there is no such power. It follows that, in my judgment, the Respondent acted lawfully and within his jurisdiction and I would discuss what remains of the amended Motion.

32. The foregoing judgment was written as a draft before I became aware that it would be in a minority. It is not, therefore, drawn as felicitously as becomes a dissenting judgment. I have thought fit, however, in all the circumstances, in nowise to alter it.

Solicitors:      Crown Solicitor for the Applicant. Registrar of the Supreme Court instructing the amici     curiae for Respondent. Phillip K.H. Wong for the passport holder.

No. 1345 of 1983

IN THE HIGH COURT OF JUSTICE

FULL BENCH

MISCELLANEOUS PROCEEDINGS

BETWEEN

Coram: Hon. Liu, Jackson-Lipkin and Barnes JJ in Full Bench

Date: 25th & 26th July 1983, 21st September 1983 and 1st November 1983.

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J U D G M E N T

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BARNES J.:

33. Section 17A of the Prevention of Bribery Ordinance provides as follows:-

"17A. (1) A magistrate may, on the application of the Commissioner, by written notice require a person who is the subject of an investigation in respect of an offence alleged or suspected to have been committed by him under this Ordinance to surrender to the Commissioner any travel document in his possession."

34. Pursuant to an application by the Commissioner dated 19th April 1983 a magistrate did by written notice require a person ("the passport holder") to surrender his passport. After service of the notice the passport holder applied to the magistrate under section 104 of the Magistrates Ordinance to review his decision to issue the notice. The magistrate considered that he had power under that section to review his decision and proceeded to hear submissions on behalf of the Commissioner and the passport holder. After hearing those submissions the magistrate concluded that he would not have issued the notice had he had the advantage of hearing those submissions at the time of the original application. He therefore "directed" that the passport, which had been surrendered in compliance with the notice, be returned to the passport holder.

35. It is the Attorney-General's contention that a magistrate has no power to review a decision made pursuant to an application under section 17A of the Prevention of Bribery Ordinance.

36. Section 104 of the Magistrates Ordinance empowers a magistrate to review his decision in any matter determined by him in any manner provided the matter is one which he has power to determine in a summary way. If an application under section 17A of the Prevention of Bribery Ordinance is a matter which a magistrate has power to determine in a summary way then clearly by section 104 of the Magistrates Ordinance he was empowered to review his decision.

37. Whilst in ordinary usage the phrase "in a summary way" connotes a procedure which is both informal and expeditious, in the language of the law it seems to have the narrower meaning of a statutory procedure to determine disputes without a trial by jury. This is the common theme which runs through the following definitions:

"Summary Jurisdiction. The jurisdiction of a judge of magistrate to try accused persons without a jury. Since jury trial was, save in exceptional cases, the only mode of trial permitted by common law, summary jurisdiction is entirely statutory and dates from 1848-49." (The Oxford Companion to Law, p.1197).

"A summary proceeding is such as is directed by several acts of parliament (for the common law is a stranger to it, unless in the case of contempts) for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these cases there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute hath appointed for his judge, as one or more justice of the peace, etc. See Black. Com. 4 V. 277, etc." (New Law Dictionary, 1782 edition).

"Summary jurisdiction, the jurisdiction of a court to give a judgment or make an order itself forthwith, e.g., to commit to prison for contempt, to punish malpractice in a solicitor, or, in the case of justices of the peace, a jurisdiction to convict an offender themselves instead of committing him for trial by a jury. The mode of exercising this latter jurisdiction, which is given in particular instances by very numerous particular statutes, is regulated by the Magistrates' Courts Act, 1952 ......." (Jowitt's Dictionary of English Law, 2nd edition, Vol.2, p.1719).

"Summary proceedings. Summary procedure in civil matters is set in motion where a complaint is made to a justice upon which a magistrates' court has power to make an order. See Magistrates' Courts Act 1952, s.50. In criminal cases, summary proceedings are those which may be had and concluded before a magistrate or justices of the peace, as opposed to regular proceedings by indictment or information and trial by a jury. See the Magistrates' Courts Act 1952, Part I." (Osborn's Concise Law Dictionary, 6th edition, p.317).

"........... the words 'summary jurisdiction' appear to me to refer to a procedure primarily, at all events, criminal, wherein the Court does not proceed on the finding of a grand jury or information by the Attorney-General, but has the power to deal with an offence without those provisions which the ordinary constitution of this country enforced as a security for the subject against criminal procedure." (Boulter v. Kent Justices, [1897] A.C. 556, per Lord Halsbury, L.C., at p.563).

38. The reason for this narrower meaning is to be found in the history of the development of the office of justice of the peace.

Justices of the peace "were instituted originally to see to the observance of the statutes passed to maintain the peace but they were soon given many other duties". (Holdsworth, A History of English Law, Vol. IV, p.134). Although the range of those duties became multifarious they could be classified under five important heads, namely, 'criminal jurisdiction, civil jurisdiction, administration, trade, and religion". (ibid. p. 138). Most of their duties were performed at General or Quarter Sessions. As the legislature gave no directions as to how they should proceed to perform their duties the justices resorted to the use of the "old machinery of the jury of presentment". But with the increase in the number of duties statutorily imposed on two or more justices to inflict penalties for statutory breaches, justices constituted another type of sessional court which eventually came to be called "Petty Sessions". These were the courts of summary jurisdiction referred to in the quotation from New Law Dictionary (supra). They did not resort to the use of the "old machinery" but apparently followed some procedure created by themselves. The quotation from the Oxford Companion to Law (supra) implies that the Summary Jurisdiction Act of 1847 saw the birth of summary jurisdiction but there was undoubtedly a summary jurisdiction exercised by justices long before then. The real importance of that Act was that it laid down for the first time a statutory procedure to be followed in the exercise of summary jurisdiction. Holdsworth says that the Act codified the law regarding that procedure. In any event, the fact is that since the passing of that Act "the summary way" has been delineated by statute. That way begins with an information or a complaint, it envisages that two parties will travel it -- an informant or a complainant on one side and a defendant on the other -- and it proceeds to a hearing before and then a determination by the justices of the matter of the information or complaint. (See Paley on Summary Convictions, etc., 10th edn., p.1; Hagmaier v. Willesden Overseers, [1904] 2 K.B. 316, per Lord Alverstone, C.J., at p.319).

That procedure in all its fundamentals is the statutory procedure in Hong Kong under the Magistrates Ordinance. Consequently, when a statute refers to the power of a magistrate to determine a matter in a summary way it is referring to his jurisdiction to hear and determine a matter brought before him by way of a complaint, information or charge.

39. In my view, a section 17A application is not such a matter. It is therefore not one which a magistrate is empowered to determine in a summary way.

I would accordingly make the declaration sought.

Representation:

Mr. Graham, Mr. Strawbridge and Mr. Kilgour, Crown Solicitor, for the Applicant.

Mr. Sedgwick instructed by the Registrar Supreme Court as amicus curiae for Respondent on 25th July 1983.

Mr. Ronny Tong instructed by the Registrar Supreme Court as amicus curiae for Respondent on 21st September 1983.

Ms. Quan instructed by Messrs. Philip K.H. Wong for the passport holder on 25th July 1983.