Ernest Y.M. Cheung v. D.A. Christie, Esquire Permanent Magistrate
Read the full judgment text of HCMP 1729/1983 on BabelCite. This High Court CFI judgment.
1. This is an application for an order of certiorari to quash a decision of a magistrate sitting on 17th May, this year, in Causeway Bay. Leave to apply was given by a Full Bench on 2nd August of this year.
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HCMP001729/1983 [Sec. 33 of Public Order Ordinance. Refusal of Magistrate to apply section. Order of certiorari issued. ]
BETWEEN
Coram: Roberts, C.J. Date: 12th September, 1983. __________ JUDGMENT ___________ 1. This is an application for an order of certiorari to quash a decision of a magistrate sitting on 17th May, this year, in Causeway Bay. Leave to apply was given by a Full Bench on 2nd August of this year. Status of nominal applicant 2. The nominal applicant is a Mr. Ernest Cheung, who was the prosecutor in the case from which this application arises. A preliminary objection was taken by Mr. Sedgwick, appearing on behalf of the defendant, that Mr. Cheung was not a proper applicant in these proceedings, since the original information, on which the proceedings before the magistrate were based, was signed by an Inspector Chow. Therefore, it was submitted, Mr. Cheung did not have a "sufficient interest in the matter to which the application relates", as required by 0.53 rule 3(7). 3. Mr. Cheung is a court prosecutor and a member of the Attorney General's Chambers. He has presumably been duly appointed as a public prosecutor under section 13 of the Magistrates Ordinance; it was not suggested that this was not so. 4. By section 12 of the Magistrates Ordinance, the Attorney General is in control of the prosecution of any offence in the magistrates courts. He therefore has a genuine interest in the outcome of any prosecution. 5. In this application, it is, of course, the Attorney General who is the real applicant. He has, without doubt a "sufficient interest" for the purpose of Order 53 rule 3(7) and could have applied in his name. For convenience, the name of one of his officers, who was the prosecutor, has been cited as the nominal applicant. I consider that Mr. Cheung also, since he was the prosecutor, has a sufficient interest. Facts of Case 6. The defendant, Siu Kwok-keung, was charged on 26th March, 1983, with being in possession of an offensive weapon without lawful authority or reasonable excuse, contrary to section 33 of the Public Order Ordinance 7. He appeared before a magistrate at Causeway Bay on 3rd May, 1983, and, at the conclusion of the evidence for the prosecution, was asked whether he wished to give evidence or call witnesses. He replied that he did not wish to do so, nor did he wish to address the Court. The magistrate then found the charge to be proved. 8. Having ascertained that the defendant had a clear record and was born in July 1965, so that he was aged 17 both at the time of the offence and at the time of the trial, he remanded him to a detention centre for 14 days for a report as to his suitability for admission there. 9. On 17th May, the magistrate considered the detention centre report, which certified that the defendant was not fit for reception in that centre for medical reasons. The defendant thereupon expressed a wish to be caned. 10. The court adjourned the matter until the afternoon of the same day for further consideration. On the resumption, the magistrate, having come to the conclusion that no useful purpose would be served by asking the detention centre to reconsider its decision on the admission of the defendant, said as follows -
11. He added -
12. It is in relation to the decision of the magistrate to decline to exercise the powers imposed on him by section 33 of the Public Order Ordinance and his order of discharge that the application for an order of certiorari is based. 13. Section 33 of the Public Order Ordinance makes it an offence to be in possession of an offensive weapon in a public place, without lawful authority or reasonable excuse. Subsection (2) of that section contains unusual provisions, which impose on the court, where a person is convicted under section 33, the obligation to sentence the offender in one of the alternative ways set out in that section. 14. The various forms of punishment available to the courts vary according to the age of the offender. It is not disputed that this defendant fell within the provisions of section 33(2)(c) which obliges the court, where a person convicted is not less than 17 years of age and has not attained 25 years of age either to sentence him to imprisonment for not less than 6 months nor more than 3 years, or to make an order under the Detention Centres Ordinance, or to order him to be caned, in accordance with the provisions of the Corporal Punishment Ordinance 15. The terms of the section are perfectly clear. No discretion is left in the hands of the convicting court. I have no doubt, and my view is reinforced by Attorney General v. Wong Yiu-chung (1973 H.K.L.R. 131) that it is an improper exercise of a magistrate's judicial discretion and powers for him to refuse, after properly convicting a defendant of an offence under section 33(1), to impose one of the sentences provided for in the appropriate paragraph of section 33(2) 16. Section 17 of the Summary Offences Ordinance, makes it an offence for a person to be in possession of an offensive weapon for which he is unable to give a satisfactory account. The maximum punishment for this offence is a fine of $5,000 or imprisonment for two years. The courts' usual discretion as to punishment is not restricted in any way by this section. 17. There is nothing on the record to show the reasons which impelled the magistrate not to sentence the defendant in the manner required by law. If, however, his reason was that he had formed the view that this was a prosecution that should have been brought under section 17 of the Summary Offences Ordinance, rather than under section 33, I must observe that this would be an improper attitude for a magistrate to adopt, since it is entirely a matter for the Crown to decide under which of the two sections it shall proceed. 18. The decision as to which section shall be used is one with serious implications for each individual defendant. I would like to think that the Crown does bear in mind, as best it can on the facts which are before it at the time when the decision to prosecute is taken, that section 33 should be used with the greatest care. 19. I must remind magistrates that they should not allow any personal feelings about the restriction, of their normal discretion to impose whatever sentence they think proper, imposed by section 33 of the Public Order Ordinance to prevent them from carrying out their duty, which is to apply the laws of Hong Kong, whether or not they may approve of them. Discretionary nature of certiorari 20. The only other matter to which I need refer was the submission that, since an order of certiorari is a matter of discretion, I should not exercise it in favour of the applicant, in view of the delay which occurred between the magistrate's decision, on 17th May, and the date on which the application for leave was lodged, 28th July, ten weeks later. 21. Order 53 rule 4(1) provides as follows -
22. Order 53 rule 4(2) prescribes 3 months as the relevant period, for the purposes of Order 53 rule 4(1) in the case of an application for an order of certiorari. 23. As i read this order, it is open to me to refuse the relief sought if -
24. The application was made within the three months period. Although the magistrate's order was made on 17th May, it was not until 9th June that the Crown obtained a copy of the court's record. Thus it was only from that date that it would be reasonable to expect the Crown to have taken the necessary steps to enter its application. 25. I appreciate the force of Mr. Li's argument that it may cause considerable hardship to a member of the public if the Crown chooses to proceed in this way some weeks after an order which had discharged him. On the face of it, and there has not been any explanation of why such a course was not taken, it would have been very much quicker had the Crown proceeded by way of appeal under the Magistrates Ordinance. But on balance, I am satisfied that there was not undue delay. 26. I cannot, however, say that, although this application has come before this court later than it ought to have done by reason of the time taken by the Crown to apply for leave, this has prejudiced the defendant to a significant degree. If the matter had come here six weeks' ago, he would have been liable to have precisely the same order made against him as he is today. 27. The Crown will, I am sure, have noted my observations that applications of this nature should be carried forward as quickly as possible. But I see no reason not to exercise my discretion to issue an order of certiorari. 28. I grant the application for judicial review and quash the decision of the magistrate on 17th May, whereby he declined to exercise his powers under section 33, and the order under which he discharged the defendant from custody. 29. I remit the matter to the magistrate with a direction that he should reconsider it and should make such order as the law requires, in accordance with his finding that the charge under section 33 of the Public Order Ordinance had been proved against the defendant. Representation: S.H. Franklin, Crown Solicitor for Applicant Andrew Li, instructed by Registrar, Supreme Court for Respondent A.W. Sedgwick, instructed by D.L.A. for Defendant |