The Queen v. Gary Neil Heilbrown

HCMA000112/1988

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HEADNOTE

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Magistrate's Ordinance - information in writing - six months limitation period - validly 'laid' if lodged in court within six months from date of incident charged - not necessary for it to come to notice of a magistrate within the six months period.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 112 OF 1988

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BETWEEN

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Coram: The Hon. Mr. Justice O'Connor in Court

Date of Hearing: 15th March, 1988

Date of Delivery of Judgment: 18th March, 1988

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J U D G M E N T

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1. The appellant was summoned, before a magistrate, to answer a charge of careless driving. Before plea, the point was taken, by his solicitor, that the court lacked jurisdiction, as the information was laid out of time. That matter is governed by section 26 of the Magistrates Ordinance Cap. 227 which provides, that for such an offence the information shall be laid within 6 months from the time when the matter alleged in the information arose.

2. It is convenient if I set out the sequence of events, as they are found from the face of the information, and the summons.

26th June 1987 the incident charged, occurred.

14th August 1987 the informant signed the information.

18th August 1987 the information received by the court.

29th December 1987 the summons issued by the court.

3. It can readily be seen, that the information was received by the court, within the 6 months limitation period. It is submitted for the appellant that the receipt of the information on 18th August 1987, may be receipt in the court office, and may not have involved the information coming to the attention of a magistrate or a duly authorised officer of the Magistrates' Court. I am content to consider the matter on that basis. It is contended that for the information to be 'laid', it must come to the attention of a magistrate.

4. The appellant is faced with surmounting formidable authority, in order to support his contention that lodging an information in court is not laying it. There is the Court of Appeal decision in R.v. Cheung Kwok-cheung [1982] HKLR 126, the Lords decision in Hill v Anderton [1982] 2 All E.R. 963, and R v. Syed Ahmad Noh Mag. App. 484/85. It has been submitted that the Court of Appeal decision is not binding as it is obiter on this point, that the House of Lords decision is not binding as it is not in pari materia; and that R v. Syed is not binding as it is a High Court decision, I have been referred to sections 7D(1), 7E(2), 8(1), 8(1B), 9, 10, 12(a) and 72 in support of the contention that the Magistrates Ordinance envisages the laying of an information, as meaning the bringing of it to the attention of a magistrate. Crown counsel says that no such implication appears in the Ordinance, and he points to section 8(1B ) (b) as envisaging there would be summonses where, neither the magistrate nor his authorized officer, had considered the information. On consideration of the Magistrates Ordinance, I do not find the wording of it, nor the general scheme and procedure laid down by it, differ so much from the Magistrates' Courts Act, as to justify a departure from the reasoning and effect of the House of Lords decision in Hill v. Anderton. I consider the reasoning in Hill v. Anderton is applicable to the Magistrates Ordinance.

5. In R v. Cheung Kwok-cheung [1982] HKLR 126 the Court of Appeal had before it, the question of whether the limitation period laid down in section 26 of the Criminal Procedure Ordinance, went to jurisdiction, or merely provided a defence. In that case the information was lodged in the Magistracy more than 6 months after the date of the incident charged. The following passage appears in the judgment:

"Date of laying of information.

It was agreed by counsel for the appellant and counsel for the Crown that the effective date of the laying of an information, for the purposes of section 26 of the Magistrates Ordinance, is the date upon which the information is lodged in the Court.

Recent authority for this may be found in the Queen v. Leeds Justices [1981] 3 All E.R. 72 where the Divisional Court held that an information is laid when its contents are brought to the attention of a magistrate or of the clerk to the Justices, as part of the prosecution process."

6. In that passage, the court clearly was accepting, as correctly stating the law, that which had been agreed by counsel. A judge is not, even in a civil case bound by what the parties, by agreement, state the law to be. It is for the judge to decide for himself what it is, Bahamas International Trust Co. v. Treadfold [1974] 3 All E.R. 881. In the passage quoted, the Court of Appeal was judically interpreting R v. Leeds Justices, as having decided that an information is laid when it is lodged in court. For the appellant, it is suggested that the Court of Appeal misunderstood R v. Leeds Justices, because lodging an information in Court is not, or is not necessarily the same thing as bringing it to the attention of a magistrate or his authorised officer. Indeed it seems that the House of Lords in Anderton v. Hill saw a distinction between lodging it in court, and bringing it to the attention of a magistrate. However the House of Lords held that the true test of whether an information was laid, was not whether it was brought to the attention of a magistrate, but whether it was lodged in court. The House of Lords affirmed R v. Leeds Justices, but on different grounds.

7. The result is that the Court of Appeal decision in R. v. Cheung Kwok-cheung, dealing with the Magistrates Ordinance, is to the same effect as the House of Lords decision in Hill v. Anderson, though they differ as to what was held on the point in R. v, Leeds Justices.

8. I consider the above passage from R. v. Cheung Kwok-cheung, is not strictly speaking binding upon me, as on the facts in that case it did not matter whether the date of laying the information was the date it was received in court, or the date it came to the notice of the magistrate. Nevertheless, it is highly persuasive.

9. The House of Lords decision on appeal from R.V. Leeds Justices, is reported as Hill V. Anderton, at [1982] 2 All E.R. 963. Their Lordships were considering the issue of when an information is laid, under the provisions of the English legislation. Lord Roskill said, and the other members concurred, at page 971g:

"The laying of an information before, or the making of a complaint to, a justice of the peace or the clerk to the justices to my mind means (in reference to a written information or complaint) procuring the delivery of the document to a person authorised to receive it on behalf of the justice of the peace and the clerk to the justices. The acts of delivery and receipt are ministerial and I see no reason why the justices of the peace or the clerks to the justices should not delegate to an appropriate subordinate authority to receive the information which the prosecutor desires to deliver. It can sensibly be inferred that any member of the staff in the office of the clerk to the justices authorised to handle incoming post has such authority. Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the Magistrates Court house, the information will in my view have been laid."

In R. v. Syed Ahmad Noh, Mag. App. 484/85 it was held, following R. v. Cheung Kwok-cheung, that an information is laid when it is lodged in Court. I come to the same conclusion. This appeal is dismissed.

Representation:

Mr. A.A. Bruce, Senior Crown Counsel, for the Crown.

Mr. P.T. Morrow of Messrs Driver & Co. for the Appellant.