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Re Wu Chung Lung

Read the full judgment text of HCMP 773/1979 on BabelCite. This High Court CFI judgment was delivered on 19 December 1979.

1. Leave having been given on the 29th November, 1979 the Court is now moved for an order of Certiorari to remove into the High Court for the purpose of its being quashed a decision of a Kwun Tong Magistrate and for an order prohibiting the reopening and rehearing of case No. KT 2637/79.

Case No.HCMP 773/1979
Court
High Court CFI
Date19 Dec 1979
Judge—
Case Document
100%Judiciary

HCMP000773/1979

1979 No. 773

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of an application by the Applicants, (1) WU Chung-lung, (2) CHOI Kwong-lam, (3) CHOI Kwong-shing, (4) SO Cheung-yuet, (5) YIP Yat-shing, for leave to apply for an Order of Certiorari and Prohibition

and

IN THE MATTER of a Decision dated the 31st August 1979 made by the learned Magistrate, Mr. R. Pritchard sitting in the Magistrate's Court at Kwun Tong in this Colony, to grant an application by the Crown for review of an earlier decision of the same learned Magistrate dated the 7th August 1979.

and

IN THE MATTER of an Order dated the 31st August 1979 made by the learned Magistrate Mr. R. Pritchard sitting in the Magistrate's Court at Kwun Tong in this Colony, to re-open and rehear case No. KT2637/79.

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Coram: Full Bench (O'Connor & Silke, JJ.) in Court.

Date of Judgment: 19 December 1979

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JUDGMENT

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Silke J.:

1. Leave having been given on the 29th November, 1979 the Court is now moved for an order of Certiorari to remove into the High Court for the purpose of its being quashed a decision of a Kwun Tong Magistrate and for an order prohibiting the reopening and rehearing of case No. KT 2637/79.

2. The history, briefly is this: the five applicants were charged with an offence under Section 5(A) of the Gambling Ordinance: that is that they did operate a Gambling Establishment.

3. They first appeared on the 24th March 1979, when all pleaded not guilty and the hearing dates were fixed for the 29th and 31st May and the 1st June.

4. On the 6th April the Magistrate was informed that the estimated time was now one day, therefore the 29th May was the only day reserved.

5. On that day the five applicants appeared for trial the prosecution being represented by Crown Counsel. Counsel for the defence was, due to some misunderstanding, late. When he eventually arrived it transpired that one day would not be enough for the hearing and new dates were fixed. Those days being the 7th and 8th of August.

6. On the 7th August the five applicants were represented but no member of the Attorney General's Chambers was present. The officer in charge of the case asked for an adjournment. The Magistrate refused, as he was entitled so to do, the application. Whereupon the Officer representing the Prosecution offered no evidence and the order of the learned trial Magistrate was "charge dismissed." This on the 7th August it should be emphasised.

7. We would interpolate here that, while that was a perfectly proper order, those who are considering a revision of the Magistrates Ordinance might wish to contemplate departing from the English lay magisterial system which is the basis for the Ordinance and to reduce the differences which presently exist as between a dismissal and a discharge of which sections 15 (nolle prosequi: discharge no bar to further proceedings); 18B (non appearance of complaint simple dismissal); 18C (no one appears: complaint dismissal : no bar to further proceedings); 19 (after hearing convict or dismiss the complaint); 32 (conditional release - discharge); 85 (after committal proceedings discharge: no bar to further proceedings) are examples and consider, generally, a simple "not guilty acquit" verdict where appropriate.

8. The next matter appearing on the record is headed "Application for Review" with the date 31st August 1979. That application was by the Crown and the five applicants were represented.

9. The learned magistrate having heard argument made an order that "the decision not to grant an adjournment reversed".

10. The matter was adjourned to fresh hearing dates.

11. Section 104(1) of the Magistrates Ordinance provides that: "Within 14 clear days after the determination in any manner by a magistrate of any matters which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter."

12. Subsection (2) of the Section provides:

"Any given application may be mad by the party himself in person or may be made by his Counsel in open court whether the party himself be present of not."

13. The fourteen days allowed had expired by the time the application for a review was made herein in open court.

14. The Crown, represented by Mr. Daw, very properly did not oppose the issue of the prerogative writs desired.

15. It would be helpful if, whenever a revision of the Magistrates Ordinance is contemplated, the draftsman were to allow for the application for a review to be made in writing with the provision that the Magistrate could, if he so thought fit, adjourn the application into open court. After all he can on his own initiative decide to reopen the case, a decision in pectoris so to speak, provided that he makes such a decision within the 14 days.

16. The hearing of the review, if the application is granted, is a separate matter.

17. The order will therefore be that the writs of Certiorari and prohibition do issue and that the applicants do have their costs of the application for leave and of the hearing of today's motion to be taxed if not agreed.

Representation:

Mr. A. Huggins (David Tsang & Co.) for Applicant.

Mr. Daw for Crown.