The Queen v. Ma Kwok-kuen
Read the full judgment text of DCCC 88/1980 on BabelCite. This District Court judgment.
1. Today's application raises the question whether a party may during a criminal trial appeal from an interlocutory order. Section 83 of the District Court Ordinance, Cap.336 provides that the appeal provisions of the Criminal Procedure Ordinance, Cap.221 from Sections 80 to 83Y inclusive apply to appeals from the District Court. None of those provisions expressly enable an appeal to be made from an interlocutory order during the course of a criminal trial. It may also be noted that although I h
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DCCC000088/1980 IN THE DISTRICT COURT OF HONG KONG HOLDEN AT VICTORIA CRIMINAL JURISDICTION CASE NO. 88 OF 1980 -----------------
----------------- Coram: Cruden, D.J. Date of Judgment: 12th August, 1980 ----------------- RULING ----------------- "I have an application by Counsel for the defendant for this trial to be further adjourned, to permit the defendant to pursue an appeal against a previous interlocutory order made on the 8th day of August, 1980 under which this Court refused an adjournment until such time as the advice of the Privy Council is available in respect of an appeal from the Court of Appeal's decision in VCC 470/79. 1. Today's application raises the question whether a party may during a criminal trial appeal from an interlocutory order. Section 83 of the District Court Ordinance, Cap.336 provides that the appeal provisions of the Criminal Procedure Ordinance, Cap.221 from Sections 80 to 83Y inclusive apply to appeals from the District Court. None of those provisions expressly enable an appeal to be made from an interlocutory order during the course of a criminal trial. It may also be noted that although I have not been asked to reserve a question of law for the consideration of the Court of Appeal under Section 81 of the Criminal Procedure Ordinance, Cap.221, the analagous question of whether such a reservation should be disposed of by the Court of Appeal during the trial or only after a trial is completed and a conviction entered, was considered by the Court of Appeal In an application by Tsang Ting-bun (1978) H.K.L.R. 141. It was there held that a point reserved under s.81 is only referred to the Court of Appeal after the trial in the event of the accused being convicted. The trial is not halted to enable a ruling to be obtained on the point reserved from the Court of Appeal. 2. It may also be observed that while the statutory provisions in a Magistrates Court are different, there the law is well settled that an appeal against an interlocutory order of a magistrate in a criminal trial may only be made after conviction. Newton v. Walker (1975) H.K.L.R. 317 is authority for that proposition. In that decision Pickering, J., also highlighted why this principle applies in a magistrates court:-
3. I want to make it quite clear that an accused is not prevented from appealing against an interlocutory order. All these cases decide, is that the appeal is heard after conviction and not during the course of the trial. In other words the trial continues. It is not halted to allow the appeal to be determined. If the accused is acquitted at the end of the trial then an appeal on the interlocutory order becomes unnecessary. If the accused is convicted then it is open to him to appeal against the conviction when a ground of appeal, or even the sole ground, may be the ruling made on the interlocutory order. 4. For these reasons I am not prepared to grant a further adjournment to allow time for the accused to proceed with an intended appeal which, I am well satisfied, the Court of Appeal, at this stage, would not have jurisdiction to entertain." 12th August, 1980
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