Re Tsang Ting Bun
Read the full judgment text of HCMP 56/1978 on BabelCite. This High Court CFI judgment.
1. Tsang Ting-bun was charged in the District Court with an offence contrary to section 10(1)(b) of the Bribery Ordinance. At the conclusion of the case for the Crown, counsel for the defendant submitted, with a comprehensive argument on the facts and the law, that the accused had no case to answer. The learned trial judge found that there was. Counsel then invited the judge to exercise his discretion under section 81 of the Criminal Procedure Ordinance and reserve three questions of law for the
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HCMP000056/1978 IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 56 OF 1978 -----------------
Coram: Trainor & Cons, JJ. Date of Judgment: 2nd May, 1978. ----------------- JUDGMENT ----------------- Trainor, J.: 1. Tsang Ting-bun was charged in the District Court with an offence contrary to section 10(1)(b) of the Bribery Ordinance. At the conclusion of the case for the Crown, counsel for the defendant submitted, with a comprehensive argument on the facts and the law, that the accused had no case to answer. The learned trial judge found that there was. Counsel then invited the judge to exercise his discretion under section 81 of the Criminal Procedure Ordinance and reserve three questions of law for the consideration of the Court of Appeal, and to adjourn the case until the Court of Appeal had given its opinion on them. There was no objection to this by counsel for the prosecution. 2. As I understand the position the trial judge was in agreement and later saw counsel in Chambers and suggested that a fourth question of law be included. He asked counsel to agree draft submissions to be made to the Court of Appeal and arranged to see them the following morning to settle them. 3. On the following morning counsel presented their draft to the Judge in Chambers which he settled, but stated that he would require further submissions from counsel before he would make a formal decision as to whether or not he had jurisdiction to reserve such matters of law at that stage in proceedings. Counsel for the accused duly made his further submissions, and in reply counsel for the Crown submitted that the District Judge had no power to reserve any question of law at that stage. He submitted that the power to reserve derived from section 81 of the Criminal Procedure Ordinance and that that section only gave the judge power to reserve questions of law for the consideration of the Court of Appeal after conviction. The judge held for that submission whereupon counsel for the accused applied to have the case adjourned to enable the accused to apply for prerogative writs with a view (inter alia) to quashing the ruling of the judge. Counsel for the Crown announced that he had no objection to such an application and accordingly the case was adjourned. 4. An application was duly made to the Full Bench for leave to apply for an Order of Certiorari for the purpose of quashing the order of the judge and for an Order of Mandamus directing him to exercise the discretion conferred by section 81 of the Criminal Procedure Ordinance, and for an order that the trial of the accused be stayed until further order. 5. The application was duly granted and so the matter appeared before us. 6. Section 79 of the District Court Ordinance applies the Criminal Procedure Ordinance to the District Court and I think it might at this moment be appropriate to quote section 81. Section 81 reads:-
7. The judge arrived at his decision, it would appear, by reference to sub-section (4) of the section which he interpreted as conferring on the Court of Appeal the power to make the orders therein stated which could only arise when a conviction had taken place. 8. Counsel before us were in agreement that the words "on the trial of any indictment" in section 81(1) mean that at any time during a trial the judge may reserve a question of law and with that I am, with respect, in complete agreement; the trial of an indictment continues from arraignment until a verdict is reached. 9. Although counsel were in agreement as to the meaning of that phrase they differed considerably as to its effect. It was the submission of Mr. Lee, Counsel for the applicant, that when a trial judge reserves a question of law for the decision of the Court of Appeal all proceedings must be stayed until the Court of Appeal announces its decision. Mr. Evans who appeared for the Crown submitted that there was a confusion between "reserve" and "refer". He pointed out that the word in the section is "reserve" and he relied on the Concise Oxford Dictionary and the Shorter Oxford Dictionary to support his contention that in the context of the section the word "reserve" means "hold back" or "postpone". That, he argued, means that a trial judge must "hold back" referring a question of law until conviction. In other words, he maintained, that at any time during the trial the counsel for the parties may seek to have reserved, or the trial judge himself may reserve, a question of law to be decided by the Court of Appeal, but the court must proceed to conviction before referring it. He argued that the only matter left outstanding when referring it to the Court of Appeal would be the judgment of the trial judge. Mr. Evans opposed the application on another ground: that when the judge gave his decision on the submission that the accused had no case to answer he thereupon became functus officio; and having heard full argument on the facts and the law before making that ruling he ought not to have considered an application under section 81. If the trial judge were now to be ordered to reconsider the matter and he, exercising his discretion, referred the points of law to the Court of Appeal it might hold a view contrary to that which resulted in the judge finding that the accused had a case to answer. If it did then to give effect to its decision it would have to over-rule the judge's decision or direct him to do so. Mr. Adams submitted there is nothing in subsection (4) to suggest that the Court of Appeal has such powers and the proposition is untenable. 10. In support of his submission Mr. Lee referred us to the judgment in the case of The Queen v. Leung Wing Cheung 1958 H.K.L.R. p.49 at p.57. The judgment of the court was read by Gould acting C.J. The part of the judgment cited to us reads:
11. Another case to which Mr. Lee referred us was the case of The Queen and Ho Siu-fei and Others 1976 H.K.L.R. 190. That was a case in which, during the course of the trial, the learned trial judge referred a question of law to the Court of Appeal for consideration. The support that Mr. Lee sought to derive from that case was simply that the Court of Appeal proceeded to consider the case without questioning the powers of the trial judge to refer the matter to them at that stage of the trial. Indeed, the only reference in the judgment to the Criminal Procedure Ordinance was in the opening sentence of the judgment of the court delivered by Huggins, J.A. The sentence reads:
12. The real issue in this case then is: if a trial judge reserves a question of law for the decision of the Court of Appeal may he refer it immediately to the Court of Appeal or must he await the conclusion of the trial, that is until after conviction but before judgment. What the position would be if there were an acquittal was not argued before us. 13. Before proceeding to consider the question of the interpretation of this section I would like to refer to the two cases that were cited to us. As to the first one, apart from the great weight that one would normally attach to any opinion expressed by Gould, acting Chief Justice as he then was, the case is of little help to this court. It is quite clear that the observations of Gould, C.J. were obiter and would appear to be reflections that occurred to him only as he prepared the judgment. It is clear from the judgment that no argument had been heard on section 81 and no deliberate consideration given to its application. Indeed, the very words used by the learned judge would suggest that he considered there were possible conflicting interpretations of the section, and that he was doing no more than expressing an opinion en passant. 14. As to the second case it is also clear that no issue as to the interpretation of the section was ever raised or contemplated by the court. It would appear that the question of law having been referred to the court it was taken for granted that jurisdiction existed to hear and answer it even though referred before conviction. 15. To interpret the section I think it would be helpful, briefly, to consider the history of the legislation that is now before us having regard to legislation in England and subsequently in Hong Kong. 16. In England, as I understand the position, what had theretofore been a somewhat informal practice of consultation among judges became the subject of legislation in the Crown Cases Reserved Act, 1848 (11 & 12 Vict. C 78). It was enacted "........ to provide a better Mode than that now in use of deciding any difficult Question of Law which may arise in Criminal Trials in any Court of Oyer and Terminer and Gaol Delivery and to make further Amendments in the Administration of Criminal Law". Section 1 provided:
The language there is clear and unambiguous: if a person had been convicted the trial judge might reserve a question of law and respite the execution of the judgment pronounced on conviction or, if judgment had not been pronounced, postpone the judgment. What the judge was then to do is equally unambiguous:
17. Broadly speaking that is the position in England to-day though the Court for Crown Cases Reserved is gone. Since 1972 a question of law may be referred to the Court of Appeal by the Attorney General if a person has been acquitted, without prejudice to the acquittal. It is to be observed that such a reference by the Attorney General is independent of any action by the trial judge. 18. In Hong Kong with its then limited judiciary, the Criminal Law and Procedure Ordinance, 1869 (No. 2 of 1869) was enacted. Section 8 provided:
19. It would appear that the intention of the legislature was to establish in Hong Kong what already existed in England, regard being had to the limited judiciary in Hong Kong, but the draftsman preferred to do so in his own way. There was however an important difference. The English Act provided that the judge might reserve a question of law when any person "shall have been convicted" whereas the Hong Kong legislation enabled the Chief Justice to reserve any question of law that might arise "upon the trial". What may be done and when is clearly and unambiguously set out in the section: The Chief Justice may "upon the trial" of an information reserve for "further consideration" a question of law. "Further consideration" can only mean "later consideration". If it were to mean "immediate consideration" the matter of a conviction could not arise and the words "and in case the person tried shall be convicted" would have no meaning. Moreover, it is upon "such further consideration ......" that the Chief Justice may affirm or quash the conviction. 20. In my opinion the position after the 1869 legislation was that at any time during a trial the Chief Justice, who was the only judge with jurisdiction to try a person on an information, might reserve or put back or lay aside a question of law that might arise for further consideration by himself after verdict. If the accused was convicted the Chief Justice was enabled to stay further proceedings and make the consequential orders set out. But the trial proceeded to verdict. If I am correct in my opinion that it was the intention of the Legislature substantially to establish in Hong Kong what already existed in England then it follows that if there were no conviction the matter ended with the verdict. 21. In 1899 an ordinance "to consolidate and amend the Laws relating to Criminal Procedure in the Supreme Court" was enacted. Section 78 of the Criminal Procedure Ordinance, 1899 replaced section 8 of the 1869 Ordinance. It was substantially the same and reads:
22. Hong Kong when that legislation was enacted was more sophisticated than it was in 1869; there were enough judges to constitute courts of first instance and a Full Court with appellate jurisdiction, and the subsection reflects that. There is a change of language and a re-arrangement of the original section which usually suggests a change of intention on the part of the legislature, but section 78 in the new form was introduced, in my opinion, merely to take account of the expanded judiciary in the developing Hong Kong and to enable the Full Court to make the consequential orders that there to fore the Chief Justice was authorised to make. That being so the trial judge did not reserve to himself the question of law for "further consideration" but reserved it for the Full Court for original consideration. That he might reserve it "on" the trial rather than "upon" the trial is merely a matter of terminology. 23. Holding as I do, that prior to the enactment of the legislation of 1899 the position was that a question of law could be reserved at any time during a trial for further consideration after a verdict with a conviction, it would require the intention of the Legislature to alter that position by a consolidating enactment to be clearly expressed in the language used in the section altering the position; and such an intention is not clearly expressed in section 78 of the 1899 Ordinance. On the contrary, the language indicates that the legislation was intended to make provision for the altered constitution of the judiciary but otherwise to maintain the status quo. The 1899 legislation says "in case the accused person tried is convicted" whereas in the 1869 legislation the words are "in case the person tried shall be convicted", in my opinion the meaning is the same: if the accused is convicted; and it is merely a different choice of language by the draftsmen. 24. However, although a judge is confined to the words and terminology used in construing a section he may, if in doubt, in certain circumstances have recourse to other sources in ascertaining the intention of the Legislature, for example the preamble to an act, where there is one. The Criminal Procedure Ordinance, 1899 is divided into parts, and section 78 is the first section in Part IV. That part is headed: "Proceedings Subsequent to Trial" and is sub-headed: "Reservation of Question of Law" and recourse may be had to the heading and sub-heading to ascertain the intention of the Legislature. To quote craies on Statue Law, 7th Edn. 210:
The learned editor then goes on to cite a number of authorities e.g. Lord Herschell in Ingles v. Robertson (1898) A.C. 616 at 630: "Those headings are not, in my opinion, mere marginal notes, but the sections in the group to which they belong must be read in connection with them and interpreted in the light of them." In Knight v. Lambrick Contractors Ltd. (1957) 1 Q,B. at 566 Parker L.J., as he then was, said "In the case of ambiguity one is, I think, entitled to look at the heading ...."; again in Elliott v. Grey (1960) 1 Q.B. at 372 he said "I am influenced by the fact that this section appears in Part II of the Act." Harman L.J. in Qualter, Hall & Co. Ltd. v. Board of Trade, (1961) 3 W.L.R. at 832 said "Headings of this kind are the equivalent of preambles to older statutes" and held that they might be resorted to in construing subsequent sections. If, therefore, there were any ambiguity in section 78 and I do not think there is, and recourse were had to the heading and sub-heading of Part IV of the Ordinance my construction of the section is re-enforced. 25. If one passes to the revised version of the Criminal Procedure Ordinance as it appears in the 1950 Revised Ordinances one finds that there is no apparent change in the law so far as the time when a reservation of a point of law may be made. The Ordinance has a similar Part IV with the same heading and sub-heading as in 1899 but the section is numbered 81. The only change in the first subsection is that the superfluous words "in his discretion" have disappeared. (They had been removed by No. 1 of 1912). Subsection (2) is amended by permitting the Full Court to direct a new trial and a proviso was added which is in the same words, if a different format, as those used in the present legislation. 26. That was the law prevailing when Gould acting C.J. read the judgment to which I have referred and until the Criminal Procedure (Amendment) (No. 2) Ordinance 1972, (No. 34 of 1972) was enacted. Section 15 of that Ordinance amended Part IV by deleting the heading, repealing sections 80 and 81 and their sub-headings and enacting a new section 81 with new headings and sub-headings. 27. The Criminal Procedure Ordinance in its repealed and amended form appears in the 1972 edition of the Revised Laws of Hong Kong and section 81 is as I have earlier quoted. It is, as theretofore, in Part IV but under the new heading: "Appeals, Questions of Law Reserved and Review". It might perhaps be mentioned en passant that Part III of the Ordinance is headed: "Proceedings at Trial", and having dealt with the verdict and certain consequential results following verdict the Ordinance proceeds to Part IV. 28. Where the heading of a part of an Ordinance has been changed, and a section of the part repealed and re-enacted in different words and form constructions of the old section are not necessarily valid in construing the new. It is essential therefore to seek the intention of the Legislature and see if it was to change what had previously prevailed and introduce something novel or was it intended, while introducing something novel, materially to maintain what had prevailed. 29. The legislation of 1972 did introduce something novel. For the first time it is mentioned (subsection 2) that the reservation of a question of law may be made by the judge of his own motion or on the application of the Attorney General. Why such a new subsection was necessary is not obvious, one would have thought that was always the position, but that, of itself, would make no difference as to when the matter might be referred. Apart from that the wording of the new section is very similar to the old section, but instead of the former two subsections there are now four. If one disregards for the moment subsection (2) and reads subsections (1) and (3) together there is not displayed, in my opinion, an intention different from that of the former subsection (1), there are extra words but they became necessary by reason of breaking up the former subsection into its present form. Before reaching that conclusion there is a different tense used in subsection (3) of the new section to be considered which might suggest an intention to alter the position, that is where the former words "and in case the accused person 'is' convicted" are replaced by "and the accused person 'has been' convicted". The old subsection might be written: "The judge may reserve a question of law ... and, in case the accused person is convicted ..." and the new subsections, in contrast:
30. In my opinion the new tense does not show any indication by the Legislature to depart from the previous position; on the contrary. The tenses were the choice of different draftsmen and in my opinion the draftsman of the 1972 Ordinance used the perfect tense the more effectively to demonstrate the powers the Legislature intended the trial judge to have in dealing with the accused but only if he had been convicted. 31. What if the accused, has not been convicted when the point is reserved? What is the position, for example, if the application to reserve is made during the trial by the Attorney General who wants the matter immediately referred but the accused wants the proceedings to continue? Is the trial judge empowered to postpone the continuation of the trial? It is true that a trial judge may adjourn a trial where circumstances in the case demand it, but he will only do so in exceptional circumstances. It is his duty to complete the trial, and to pronounce judgment and sentence with the utmost expedition; and he is unlikely to adjourn at the request of the prosecution. In England it would be impossible to have a trial adjourned to have a point of law decided by the Court of Appeal. To enable a judge to depart from a fundamental principle and to adjourn a trial and prevent the other side, more especially the accused, from having an early conclusion of the proceedings would have to be stated in the clearest language. There is nothing in subsection (3) enabling a judge to adjourn a trial. The only power that is conferred on him is to postpone judgment. To take another example: Supposing a jury had retired and counsel raised a question of law arising from the judge's address might the judge recall the jury and adjourn until the Court of Appeal had expressed an opinion? Such a proposition is unthinkable. 32. In construing the section I can find no support for Mr. Lee's argument in subsection (4). That subsection was inserted to enable the Court of Appeal, which had been enabled in subsection (1) to consider questions of law, to make such orders as therein mentioned as are a necessary consequence of its decision. It merely outlines the powers of the Court of Appeal after considering and answering the question of law posed to them; they are powers consequential to their decision. The words in subsection (4) (Upon consideration of a question) "reserved under subsection (1)" and the words of subsection (3) (a Judge may if he reserves a question of law) "under subsection (1)" add nothing whatever to the construing the section. As subsection (1) is the only part of any section of the Ordinance giving powers to reserve a question of law the words are superfluous except in an explanatory sense. 33. In my opinion, therefore, the meaning of section 81 is that at any time before verdict the judge may, of his own motion or on the application of the Attorney General or the defence, reserve a question of law. If the accused is convicted, he may then refer it to the Court of Appeal. I am satisfied that that construction is to be found in the words of the section itself. But if there were any ambiguity, and in the older legislation Gould, acting C.J. saw some, a consideration of the original legislation and its mutations until the enactment of the 1972 Ordinance demonstrate that there was no departure from the original intention of the Legislature so far as concerned the time of reference or transmission to the Court of Appeal. That is perhaps best illustrated by the unchanged heading of Part IV of the Ordinance until 1972. Even then, the new heading clearly indicates that what follows are analagous matters: Appeal, Reservation of a Point of Law and Review of Sentence, in that they all follow verdict. 34. Equally am I aware of the advantages to the Attorney General if he could have a question of law referred to the Court of Appeal immediately on it being raised rather than having it reserved until conviction. But there is another side to the matter. If a question has been reserved and it may be referred immediately the trial must be adjourned sine die. If the trial is by jury the jury must be sent off to await re-call on some future date. In my opinion it would be most unjust to have such a liability hanging indefinitely over a juror's head, especially in Hong Kong where so many jurors are from overseas and might find their travel commitments or potential travel commitments left in suspense. On the other hand it might well be that so many of them would have left the Colony that the Attorney General, on the case being re-entered, would have to enter a nolle prosequi and have a new trial commenced. 35. What in effect is sought from us is a ruling that the trial judge was in error in holding that he had no power to reserve a question of law for the consideration of the Court of Appeal until conviction, and an order of Mandamus requiring him again to consider the points of law raised and to exercise his discretion and if he thinks fit immediately to refer them to the Court of Appeal. What is in the mind of the applicant is the right to have a question of law immediately referred to the Court of Appeal at any time during trial. 36. As I said earlier the judge was wrong in his conclusion that he could not "reserve" a point of law until conviction and to that extent the applicant would be entitled to an order but his would be a Pyrrhic victory. I am satisfied that when the judge used the word "reserve" he was doing so in the sense of "refer" and on that interpretation his decision was correct and he was correct when he decided that the trial must continue. I would refuse the application. 37. I am aware that the question of what a trial judge may or may not do if he reserves a point of law during a trial and an accused is acquitted is not before us. Nevertheless, it is so closely associated to what is before us it had to be envisaged in arriving at a conclusion on what we have to decide. I have indicated my opinion, that if an accused is acquitted the points of law are not referred to the Court of Appeal and the matter ends. The opinion is, of course, obiter, but it may be of some assistance to the Attorney General in assessing whether or not it is necessary to introduce here legislation such as the Criminal Justice Act, 1972 in England to enable him to refer any point of law arising in a trial to the Court of Appeal. 38. Having dismissed the applications for the reasons stated I do not consider it necessary to deal with the second objection of Mr. Adams. 39. No order as to costs. Cons, J.: 40. I would also dismiss the application. I respectfully agree with the reasoning of my learned Brother. In my view the trial judge is bound to decide the question of law at first instance and may submit it to the Court of Appeal only after, and if there is, a conviction. Representation: Mr. Martin LEE (Philip K.H. Wong & Co.) for the applicant. Mr. I.A. Evans, S.C.C. for Crown. |