Attorney General v. Wong Kwai Lok

CACC000408/1984

A Court of Summary Jurisdiction has a discretion to permit an informant to withdraw a charge before a plea is taken.

BETWEEN

_________________

Coram: Hon. Kempster, J. in Court

Date: 3 August 1984

___________

JUDGMENT

___________

1. On 8th March of this year Mr. WONG Kwai-lok was arrested pursuant to section 50 of the Police Force Ordinance on the footing that he had been guilty of unlawfully and maliciously wounding one LEE Yuk-lung with intent to cause that person grevious bodily harm. The same day he was given police bail pursuant to section 52 of the same Ordinance to which bail he surrendered on 16th March. He was then formally charged with that offence and brought before the magistrate on an information or complaint made by a police inspector. He was remanded on bail until 9th April when, before he had been asked to plead, the Crown applied to withdraw the charge. The learned magistrate, Mr. Hawkes, expressed a doubt as to his jurisdiction to allow the application and the matter was further adjourned to 24th April to be argued.

2. After argument the learned magistrate ruled that he had no jurisdiction to allow the Crown to withdraw the charge. Now he has stated a case at the request of the Crown; the question of law falling for determination being "whether or not I was correct in holding that the court has no power to grant leave to an informant to withdraw a charge". I think the further words ''prior to taking a plea" should be implied.

3. The learned magistrate felt bound by the express words of section 19(1) of Magistrates Ordinance, Cap. 227, which begins:

"Where the defendant is present at the hearing, the substance of the complaint or the whole of the information shall be read over to him, and explained if necessary, and he shall be asked whether he admits or denies the truth of the complaint or information."

There is no express provision for the learned magistrate to do anything else. The magistrate had before him the information and the consequential charge. By section 2 of the Magistrates Ordinance "information" includes a charge. An accused person, whether arrested pursuant to warrant, appearing pursuant to summons or having been arrested by the police before charge as in the case of Mr. Wong, can only be brought before the court on the basis of an information.

4. There appears to be no direct authority in this jurisdiction in relation to the question of law posed. I am accordingly invited to look to English authority by way of analogy. I except that invitation. The English equivalent to section 19 of the Magistrates Ordinance is section 9 of the Magistrates Courts Act 1980 which reads:

"On the summary trial of an information the court shall, if the accused appears, state to him the substance of the information and ask him if he pleads guilty or not guilty."

The English Courts have held that those words in no way preclude a magistrate in the exercise of his discretion, and I emphasize those words because questions of costs may arise, from allowing the withdrawal of process.

5. I refer first to the case of Regina v. Phipps Ex parte Alton ⁽¹⁾, beginning at page 427 in the judgment of Lord Parker C.J. :

"We have been referred to a case as early as 1848, Tunnicliffe v. Tedd⁽²⁾ from which it appears that, provided no plea had been taken - that, in the case of a summary trial, would clearly be treated as the beginning of the trial - the process could be withdrawn."

And then on page 428:

"It is common knowledge that process is allowed to be withdrawn in many cases where the prosecution do not desire to proceed, and in my judgment where withdrawal in that sense takes place, that is to say where the prosecution is allowed to withdraw process before the inquiry has begun, there is then no provision in the Costs in Criminal Cases Act, 1952, which will enable the accused to recover costs."

The latter point is relevant to the exercise of jurisdiction. Lord Parker's judgment was referred to by Ackner L.J. in Regina v. Redbridge Justices Ex parte Sainty reported apparently only in the Road Traffic Reports for 1981 page 13 at page 14:

"I am accordingly wholly satisfied that the suggestion that a court of summary jurisdiction has no power to permit a summons or information to be withdrawn is a wholly invalid point and the justices were wholly correct in rejecting it."

With those words the other member of the court, Mars-Jones J. as he then was, agreed.

6. I find that no distinction can validly be drawn as between the basic information, a summons or a charge. All are encompassed by the word "process". By analogy with the decisions just cited my answer to the question of law put to the court is therefore "No". In my opinion a court of summary jurisdiction can in its discretion grant leave to an informant to withdraw a charge and, necessarily, an information prior to a plea being taken.

Representation:

Mr. Grenville Cross and Mr. A. Tsang for Crown/Appellant

Respondent in person