Attorney General v. D.A. Davies

CACC000034/1970

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 34 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 2 April 1970

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JUDGMENT

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1. This is an appeal brought by way of case stated at the instance of the Attorney General. The facts giving rise to the appeal may be briefly stated. On the 8th November, the learned magistrate had before him a defendant charged with a traffic contravention. To that charge the defendant pleaded not guilty and the case was then and there set down for trial on the 11th November at 2.30 p.m. The main prosecution witness was a police constable, P.C. 10092. At the date and time fixed for the hearing the defendant was present but no prosecution witness. The prosecuting officer informed the magistrate that P.C. 10092 was believed to be on duty at a particular place. The learned magistrate, instead of dismissing the charge as he might well have done under the provisions of section 20(2) of the Magistrates Ordinance, granted an adjournment of half an hour. Upon the resumed hearing, a police corporal (a minor witness in the case) gave evidence and by the time he had completed his testimony - which was sometime before 3 p.m. - P.C. 10092 had arrived at the Court. Upon being asked to give an explanation as to why he had not been present at the Court at the proper time, the police constable said that he had been transferred to another police station, that he had lost what he described as his "witness summons", that he had telephoned a more senior police constable to find out the time and date of the hearing of the case but had not received the information required. Police witnesses are not in fact served with Witness Summonses; they are issued with a notice of hearing of the case by the duty officer of the station by, or from, which the charge against the appellant had been laid. The learned magistrate took the view that if the police constable had taken the trouble to inquire, whether from the staff of the court or from the police inspector in charge of proceedings at the court, he could have ascertained the date and time of hearing of the case and could have been available at the court at the proper time. He appreciated that the matter could probably have been dealt with disciplinarily if he, the magistrate, had made a report but he took the view that it was a matter which directly affected the court and it was more convenient and satisfactory to deal with it in open court in the same way as he could and would have dealt with any other witness who had failed punctually, and without reasonable excuse, to obey a summons issued to him to attend the court at a specified time and date. Accordingly, he imposed a fine of $25.

2. Section 21 of the Magistrates Ordinance provides for the issue of summonses to witnesses and for the provision of a penalty where the person so summoned refuses or neglects to appear. No Witness Summons had, in fact, been issued in this case but the magistrate, in supporting his decision in the Case Stated now before me, rightly or wrongly, has sought to equate the issuing of a notice to a police witness by the responsible police officer to the issuing of a Witness Summons by the court authorities. Alternatively, the magistrate, rightly or wrongly, has sought to support his decision by a reference to section 40 of the Magistrates Ordinance which makes provision for orders of the court to require any person "to do ...... any act or thing" and section 40(2) lays down a penalty for default. The learned magistrate seeks to stress that there is nothing in that section which prescribes the manner in which the order is to be communicated to the person subject thereto.

3. I do not propose to be drawn - certainly at this stage - into the issue as to whether or not the learned magistrate, in the absence of a formal Witness Summons having been issued to the police constable, had any power to impose a fine upon him or as to whether the provisions of section 40 are in any way applicable to the circumstances of the case. At this stage I am solely concerned as to whether or not the appeal brought by, and in the name of, the Attorney General is properly before me. The learned magistrate expressly stated that if it had not been for the proviso contained in section 111 of the Magistrates Ordinance, he would have refused to state a case.

4. An appeal by way of case stated from a decision of a magistrate lies where any person aggrieved by that decision desires to question it on the ground that it is erroneous in point of law or that it is in excess of jurisdiction. Section 111 provides that a magistrate may refuse to state a case if he is of the opinion that the application is merely frivolous; but he may not refuse where the application is made to him by or under the direction of the Attorney General.

5. It should be emphasized that the right of an aggrieved party to apply to a magistrate to state a case on a point of law is wholly independent of the undoubted right of that party to appeal against any conviction or sentence imposed upon him by a magistrate: procedure by way of case stated is an alternative method of appeal in the appropriate case. It is beyond dispute that P.C. 10092 was a party aggrieved by the magistrate's order and that he could have proceeded either by way of appeal in the ordinary manner or by way of case stated on the ground that the fine imposed was bad in law and/ or in excess of jurisdiction. If he had so appealed in his own name it would, presumably, have been open to the Attorney General, in his discretion, to provide for him to be legally represented. That, however, has not been done. The sole question here is whether or not the Attorney General has any right to appeal against the fine imposed upon the police constable. Section 105 of the Magistrates Ordinance provides that within a specified period after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way "either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction, order or determination was granted and the grounds on which the proceeding is questioned, for the opinion of a judge of the court." The latter part of the same section further provides that:-

"In the case of any determination which a magistrate has power to determine in a summary way and which relates to or is connected with an offence the Attorney General shall notwithstanding that he may not be deemed to be a party, have a similar right to apply for a case to be stated as that hereinbefore afforded to the parties and upon the exercise of such right by the Attorney General the complainant or informant shall cease to be a party to any further proceedings."

6. Under the Interpretation and General Clauses Ordinance the word "offence" includes:-

"......... failure to comply with any provision of any Ordinance, for which a penalty is provided"

7. It is contended, first, that the Attorney General was a "party thereto" the original proceedings, that is to say, the traffic charge, that this was an order or determination made by the magistrate in these proceedings, and that the Attorney General, either as a "party thereto" or as "any person aggrieved" by an order or determination in these proceedings has a right of appeal. I am wholly unable to accept that argument. The fine imposed upon PC 10092 was entirely independent of any issue for trial in the traffic charge and wholly unrelated to the facts of that charge. In my view, the words "any person aggrieved" must mean - and only mean - a person who has suffered a legal grievance as the result of an order made; a person against whom a decision has been pronounced, which has wrongfully affected him. Nor, in my view, is the Attorney General assisted in so far as these proceedings are concerned by the latter part of the section. There are, from time to time, private prosecutions brought for a variety of offences which adversely affect the rights or interests of private individuals or registered companies; institutions or organizations e.g. infringement of patent rights, trespass etc. An order or determination by a magistrate in such a case may be a matter of public interest or concern public policy, or even involve the correct interpretation of particular legislation. In such a case it may be a matter of public importance that the Attorney General should appeal in order to have the matter decided by a higher court, irrespective of any action taken by the original parties to the proceedings. I would venture to suggest that this part of section 105 is expressly designed to confer such a right of appeal. But the order here made by the magistrate was one purely incidental and wholly unrelated to the issues in the case before him; rightly or wrongly, it was summary action taken by him under what he considered to be the powers conferred upon him by section 21(2) or, alternatively, section 40 of the Magistrates Ordinance, for non-attendance of a witness at the proper time. It was an order made which personally affected, and only affected, P.C. 10092 and not the parties in the case. In my view it was an order against which he, and he alone, could appeal.

8. For these reasons, I am of the opinion that this appeal is not properly before me and it must accordingly be dismissed.

Representation:

Stratton, D.P.P. for Appellant.