Cheung Kwok-cheung v. The Queen
Read the full judgment text of CACC 36/1982 on BabelCite. This Court of Appeal judgment was delivered on 12 March 1982.
1. The appellant pleaded guilty before a magistrate, on 28th October, 1981, to the following offences, committed on the 14th December, 1980 -
Cited by 4 cases
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CACC000036/1982 [Limitation of time in section 26 of Magistrates Ordinance affects jurisdiction.]
___________________ Coram: Roberts, C.J., McMullin, V.-P. and Li, J.A. Date: 12 March 1982 ______________ J U D G M E N T ______________ Roberts, C.J.: Preliminary 1. The appellant pleaded guilty before a magistrate, on 28th October, 1981, to the following offences, committed on the 14th December, 1980 -
2. The appellant was fined $500 and disqualified from driving all classes of vehicle for twelve months on the first charge; and fined $200 on the second cherge. 3. The appellant, who was not represented before the magistrate, subsequently sought leave to appeal against sentence out of time to a Judge of the High Court. 4. When the matter came before O'Connor, J. on the 19th February, 1982, counsel for the appellant submitted that the conviction of the appellant was wrong in law, on the ground that the informations had not been laid before a magistrate within the time limits permitted by section 26 of the Magistrates Ordinance and section 4(3) of Cap. 272. 5. The judge, being of the opinion that there was in issue a matter of law which should be decided by this court, referred the case to us, in accordance with section 118(1)(d) of the Magistrates Ordinance, suggesting that the Court of Appeal might wish to reconsider the case of A.G. v. Tong Yiu-pui (1). Brief facts 6. The offences to which the appellant pleaded guilty before the magistrate took place on the 14th December, 1980. 7. An examination of the relevant documents in the court file shows that the information was received at the Magistracy, and stamped to that effect, on the 2nd July, 1981. 8. The summons itself was signed by the magistrate on the 17th July, 1981. Date of laying of information 9. 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. 10. Recent authority for this may be found in The Queen v. Leeds Justices(2) 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.
11. It is to be noted that in Hong Kong, by virtue of the replacement of section 8 of the Magistrates Ordinance by the Magistrates (Amendment) Ordinance, 1981, it is sufficient if the information is laid before a magistrate or before any officer of a Magistrates Court authorized in writing for that purpose by a magistrate. 12. This amendment overrules the effect of The Queen v. Gateshead Justices(3). Onus on the Crown 13. The second proposition agreed by counsel was that a burden lies on the Crown to establish that an information was properly laid within such period as may be prescribed by law, if the issue is raised by the defence. 14. This proposition is supported by R. v. William Phillips(4) in which it was said that it was incumbent on the prosecution when drawing an indictment for an offence limited by time, to show that the prosecution was commenced within the statutory period permitted. 15. In Lloyd v. Young & Ors.(5) it was held by the Divisional Court that summonses issued against the defendant were on their faces bad. The defect was not of itself fatal, but the Justices had come to the conclusion that there was insufficient evidence to satisfy them that the information was laid in time. 16. The Divisional Court decided that, where a doubt is raised, the onus is on the prosecution to satisfy the court that the information was laid in time. If a doubt remains, the issue should be resolved in favour of the accused. Right to appeal against conviction 17. The appellant pleaded guilty at his trial in the Magistrates Court. The question therefore arose as to whether it would be within the jurisdiction of this court to permit him to appeal out of time against his conviction, notwithstanding his plea of guilty. 18. The power of Appellate Courts to quash a conviction under section 117 of the Magistrates Ordinance, even where there has been a plea of guilty, was examined in Chao Tse Yun v. R.(6) by the Full Court, which decided that, when an accused purported to plead guilty to a charge that was bad and appealed against sentence, an Appellate Court was not confined to dealing with the sentence alone and could examine the validity of the charge. 19. We agree that, when section 111(1) of the Magistrates Ordinance refers to a plea of guilty, it contemplates a valid plea to a valid charge. Where there has been a plea of guilty to a charge that is defective and the accused appeals against sentence, justice would clearly point to a construction of the relevant sections of the Magistrates Ordinance which would enable an Appellate Court to quash the defective charge. 20. This court's power to permit an appeal against conviction to be heard, even where there has been a plea of guilty in the court below, was reconsidered in CHAN Wai Lam v. R.(7), when the view of the Full Court in Chao Tse Yun(6) was followed. 21. We thus had no doubt that it was within our power to grant leave to appeal out of time to the appellant, both against conviction and, notwithstanding his plea of guilty before the magistrate, against sentence. 22. We gave leave accordingly and, this not being opposed by the Crown, quashed the conviction and sentences imposed on the appellant, counsel for the Crown having properly conceded that, whatever view we took of the issues in this appeal, there could be no question of a conviction against the appellant standing. Jurisdiction or Defence 23. Counsel for the Crown submitted that it would be desirable, as did O'Connor, J., that we should rule on the question of whether the limitation provisions of section 26 of the Magistrates Ordinance, and of section 4(3) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, went to the jurisdiction of the courts or provided merely a matter of defence. 24. Section 26 of the Magistrates Ordinance reads as follows -
25. Section 4(3) of the Motor Vehicles Insurance (Third Party Risks) Ordinance reads as follows -
26. As will be seen, there is a difference in wording in the two sections. 27. Section 26 provides that an information shall be laid within 6 months from the time "when the matter of the information arose". 28. Section 4(3) says that proceedings for an offence under this section may be brought within 6 months from "the date of the commission of the alleged offence". 29. Notwithstanding the difference in wording, we are of the opinion that the effect is the same, i.e. that the phrase "proceedings may be brought" means the same as "the information shall be laid" in section 26. Thus, the test in each case is whether or not the information was laid within a period of six months from the date on which the offence was alleged to have occurred [subject to the extension provided for in section 4(3) of Cap. 272, which is not however relevant to this appeal.] 30. It was submitted that there might be occasions on which there would be a practical difference between a conviction quashed because the courts had no jurisdiction to try the information and one which was quashed as a result of an objection taken by the defence. 31. In the first case, it was said, the conviction would have been void at all times, whereas in the latter case the conviction would have been voidable. 32. For example if, following a disqualification imposed as a result of a conviction for an offence in relation to which the information was laid out of time, the accused were convicted of a further offence of driving during a period of disqualification, and sentenced to imprisonment, that sentence would remain valid, if the earlier conviction was invalid by reason of an objection raised by the defence, i.e. if it were voidable, but would be of no effect whatever if the court had no jurisdiction, that is to say, if the first conviction were void. 33. In the Attorney General v. TONG Yiu-pui(1), the respondent was charged with the indictable offence of dangerous driving, which the magistrate elected to try summarily. At the end of the Crown case, he decided that the evidence did not establish a prima facie case of dangerous driving but that there was a case to answer on the summary offence of careless driving. 34. Nevertheless, because the charge of dangerous driving had been laid more than 6 months after the occurrence of the incident giving rise to the charge, the magistrate decided that he was prevented by section 26 of the Magistrates Ordinance from convicting on a charge of careless driving and acquitted the respondent. The Attorney General appealed by way of case stated to a judge of the High Court, who directed that the issue be determined by a Full Court. 35. In the course of his judgment in the Full Court, Leonard, J. commented as follows -
36. At page 77, he notes that, at the stage when the offence of dangerous driving was dismissed, "s.26 of the Magistrates Ordinance operated to prevent the magistrate from exercising jurisdiction, a process which he could only commence had the proceedings been instituted within six months of the date of the alleged offence." 37. No authorities appear to have been referred to or considered by the Full Court at the hearing of Tong Yiu-pui.(1) though it must be noted that a failure to list cases in a law report does not necessarily mean that they were not drawn to the court's attention. 38. However that may be, we were referred to a number of Commonwealth authorities, the effect of which, it was said, was to constitute persuasive authority to the effect that failure to comply with section 26 of the Magistrates Ordinance was a failure which gave rise to a defence, rather than a failure which ousted the jurisdiction of a magistrate. 39. It is to be noted that we can expect little assistance from the English cases, since section 104 of the Magistrates Act 1952, states that the court "shall not try" a case unless the information is laid within a period of six months. 40. In view of this wording, it can hardly be contested, and counsel for the Crown conceded that point, that in English law, the failure to file an information within the statutory period permitted, must go to jurisdiction, since the court is forbidden by law to try the case. 41. In Hawkes Bros. Motors Pty Ltd. v. Riddle(8) Mann, C.J., sitting alone on an appeal from a Magistrates Court, came to the conclusion that section 210 of the Justices Act 1928 does not go to the jurisdiction of Courts of Petty Sessions, but merely operates as a statute of limitations. 42. It is to be noted that section 210 of the Justices Act provides that an information for an offence shall be laid within twelve months from the time when the matter of the information arose, and that complaints for a civil debt recoverable under the Act shall be made within six years from the time when the matter of complaint arose. 43. In Hawkes Bros.,(8) Mann, C.J., who was dealing with a civil case in which, during the course of the six year period there had been part payment by the debtor, decided that the ordinary law dealing with statutes of limitation, i.e. to the effect that they merely afforded a defence to a claim, should be followed. 44. It was not necessary for the Chief Justice to deal with the effect of that part of section 210 which dealt with informations, nor did he do so. Thus this decision hardly supports the contention that a limitation in criminal matters is a matter for defence and does not go to jurisdiction. 45. The other Australian case quoted to us was Adams v. Watson(9), in which there was a conflict between section 210 of the Justices Act of Victoria (which required an information to be laid within twelve months) and a Commonwealth Act, which was also in force in Victoria, which provided no period of limitation. The Court held that the Commonwealth Act, assuming that it related to a subject matter within the federal jurisdiction, should prevail over the State Act, so that the limitation prescribed by section 210 of the Victorian Act did not apply to offences brought under the Federal Sales Tax Assessment Act. 46. However, two members of the court, though this was not necessary to their decision, commented that the effect of section 210 of the Victorian Act was not to deprive the court of jurisdiction, but to give a defence against an information brought out of time. 47. In the Irish case of The Minister of Agriculture v. Norgro Ltd.(10), a summons was issued in the District Court and served on the defendant, alleging a summary offence on the 30th May, 1977. However, the summons bore on its face no indication as to the date on which the complaint had been made to the court. 48. When the matter came before him, the District Judge decided that he had no jurisdiction to determine the charge but stated a case to the High Court, asking if he was correct in his conclusion that he had no jurisdiction to embark on the hearing of the charge, because the summons did not disclose that the complaint had been duly made within a period of six months from the time when the cause of complaint had arisen. 49. Finlay, P., expressed his opinion at pp. 158 and 159 in the two following passages -
50. We feel compelled to differ from the judge, insofar as he expresses the view that, if the question of a time limit went to jurisdiction, the difficulty could not be cured merely by a statement of the date of the issue of summons being printed on it and that it would be necessary in every case for the complainant to prove as a preliminary matter the date of the issue, as distinct from merely setting it out in the summons. 51. We do not think that this is correct. If the summons which is issued to a defendant contains upon it the date on which, according to an official of the court, the information was laid, this in our view is sufficient prima facie evidence upon which the court may properly come to the conclusion that the information was laid on that date. 52. This does not, of course, prevent the defendant from raising the issue, nor from seeking to establish that, in fact, the date contained upon the summons was wrong and that the information was not laid until outside the permitted statutory period. Conclusion 53. In view of the different wording of section 104 of the Magistrates Act there are no English decisions which are directly in point. 54. We are therefore left only with the two Australian and one Irish cases which can be of no more than a persuasive authority. 55. The consideration which has weighed most heavily with us is this. If a magistrate sees before him an information which, on the face of it, was laid on a date outside the permitted statutory period, what is he to do? 56. If the failure to lay within the permitted period is a matter of jurisdiction, his right course is to refuse to issue a summons based on an invalid information. But if the failure does no more than give the defendant the opportunity to object, the magistrate should issue the summons, ignoring the fact that he knows that section 26 of the Magistrates Ordinance has not been observed. 57. In our view, if a magistrate sees that there has been a failure to follow section 26 of the Magistrates Ordinance, it is his duty to refuse to issue the summons, for surely it would be wrong for him to issue one, knowing that the information was laid out of time. 58. Therefore we regard a failure to comply with section 26 of the Magistrates Ordinance as removing from the courts their jurisdiction to try any summary offence which is based on an information which is laid out of time and prefer to follow the Attorney General v. Tong Yiu-pui(1). (1) [1972] H.K.L.R. 71 (2) The Times 25/6/81 (3) [1981] 2 W.L.R. 419 (4) 168 E.R. 849 (5) [1963] Crim.L.R. 703 (6) [1963] H.K.L.R. 121 (7) Crim. App. 879 of 1980 (8) [1940] Vict. L.R. 272 (9) [1938] 60 C.L.R. 545 (10) [1979] I.R. 155 Representation: Miss C. Remedios (Messrs. W.I. CHEUNG & CO.) for Appellant. Mr. T.H. Freeman, Crown Counsel, for Respondent. |