Cheng Loy and Others v. The Queen
Read the full judgment text of CACC 448/1968 on BabelCite. This Court of Appeal judgment was delivered on 25 October 1968.
1. Upon the hearing of this appeal counsel for the Crown found himself unable to support the orders which had been made by the learned magistrate but he invited me to give some guidance in a field which, he said, had given some difficulty. Having heard counsel for the appellants I allowed the appeals and indicated that I would give my reasons in writing.
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CACC000448/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 448 OF 1968. -----------------
Coram: Huggins, J. Date of Judgment: 25 October 1968 ----------------- JUDGMENT ----------------- 1. Upon the hearing of this appeal counsel for the Crown found himself unable to support the orders which had been made by the learned magistrate but he invited me to give some guidance in a field which, he said, had given some difficulty. Having heard counsel for the appellants I allowed the appeals and indicated that I would give my reasons in writing. 2. Proceedings were instituted before the magistrate under the Malicious Damage Ordinance against two members of a family named Fong. It was alleged that these two persons had damaged property in the shop run by the third appellant. The shop is in fact owned by the third appellant's father, who is old and sick. The second appellant is the wife of the proprietor and the mother of the third appellant, while the first appellant is a foki in the shop, a job which he has held since October 1967. Evidence was given which, if believed, would have supported a conviction of the two defendants. The defence put forward was that not only had the defendants not invaded the appellants' shop but that the appellants had been parties to an invasion of the defendants' shop and to the malicious damage of some of the defendants' property. The learned magistrate was not satisfied that the evidence adduced by the prosecution was worthy of that degree of belief necessary to found a conviction and he acquitted the defendants. He expressly said that he did not entirely believe the defendants and found as a fact that a feud of long standing existed between the two families. He went on: "Having seen and heard the witnesses on both sides, however, I did have cause to apprehend that there was a real danger of the appellants and another as well as the two defendants and the first defendant's wife committing in future a breach of the peace or doing something contrary to law". For that reason he proceeded to bind over all these persons to keep the peace and be of good behaviour. 3. Counsel for the appellants did not challenge the jurisdiction of the learned magistrate to make the orders which he did: his submission was that the jurisdiction has not been properly exercised. The first point taken was that the making of the orders was contrary to natural justice because the appellants were not given sufficient opportunity to show cause why they should not be bound over. It was clear from his very full and careful statement of his findings that the learned magistrate was alive to the necessity for giving the appellants a reasonable opportunity of defending themselves. He said: "I was of the opinion that the exercise of this common law power was not dependent on the lodging of any formal complaint, information or charge, or upon the issue of any cross-summons, or upon proof of guilt, but could be exercised by a justice acting in a judicial capacity against any person appearing before him whether as an informant or complainant, or defendant, or as a mere witness, provided that such person had had a reasonable opportunity of answering the allegation or complaint and provided also that the apprehension of the justice that such person was likely to cause a breach of the peace or to do something against the law was based upon a good and reasonable foundation". Counsel for the appellants argued that the authorities show something more than this to be required and he relied principally upon Sheldon v. Bromfield Justices(1). It was, I understood, conceded that that case was on all fours with the present. In the course of his judgment Lord Chief Justice Parker cited observations of Lord Chief Justice Alverstone in R. v. Wilkins(2):
In Wilkins's Case(2) it was found that the complainant's solicitor knew perfectly well that his client was being required to enter into a recognisance and made no protest or objection. Thus in Sheldon v. the Bromfield Justices(1) Lord Chief Justice Parker said at page 134:
The present appellants, like Mrs. Sheldon, were not professionally represented before the learned magistrate and although no doubt they fully appreciated that allegations had been made against them in the witness box, I did not think they could be said to have had sufficient warning of the course it was proposed to adopt. I agreed with the learned magistrate that where the person is already before the court no formal complaint, information or charge need be laid but I thought that justice demanded that in every case the person concerned should be told, at least in general terms, the nature of the order which it is proposed to make against him and that he should be asked whether he has anything to say why such order should not be made. If the person is not a party to the proceedings he ought, if he so desires, to be given an adjournment in order to take professional advice. 4. Secondly it was said that the order of the learned magistrate was bad because it did not show on its face facts sufficient to show that the learned magistrate had jurisdiction to make the order. Counsel relied upon R. v. Justices of Londonderry(3) for the proposition that every order of an inferior court must not only be within the jurisdiction of that court but must show on its face the facts which bring the matter within that jurisdiction. At p.380 Chief Baron Palles said:
The order in the present case recited the charge preferred against the defendants and continued:
I say at once that I consider this an unsatisfactory form of order and that any such order should expressly recite a finding that there is a reasonable apprehension of a breach of the peace by the person against whom the order is made. I respectfully concur with the view of Chief Baron Palles that the order
However, if this had been the only point on the appeal I might have been reluctant to quash the orders. Counsel for the appellants was, I think, disposed to concede that it might not be improper to treat the record as incorporated by reference into the formal order so that one might look at the Decision recorded by the learned magistrate at the trial (though not his Statement of Findings, which was prepared subsequently). Whether the reference is clear enough in the present case I have grave doubt. In any event there would have remained substantial difficulties because the Decision itself did not expressly state that there was reasonable apprehension of a breach of the peace by the appellants but only that there was reasonable cause to believe that a breach of the peace "between the parties" was not unlikely. Even if one were to anticipate the subsequent explanation that by "the parties" he meant the two families that statement does not clearly indicate that the apprehended breach of the peace was likely to be caused by the appellants. There was the further difficulty that the first appellant was not a member of the third appellant's family and there was no evidence to show that he had been party to the feud of long standing: he was not even employed in the third appellant's shop in 1966 at the time of an incident which led to previous proceedings involving the two families. 5. I was content to rest my decision upon the first of the two grounds raised by counsel for the appellants and on that ground I quashed the orders. 6. I was asked to substitute for the orders which had been quashed orders in similar terms made in the exercise of my own jurisdiction. Whether the judges in Hong Kong have jurisdiction under the statute of Edward III is perhaps arguable but it cannot be questioned that they have jurisdiction as supreme conservatores of the peace at Common Law. Nevertheless, not having had the same advantage as the learned magistrate of seeing the appellants and the defendants in the witness box I had no real reason to say, as had the Court of Criminal Appeal in Reg. v. Sharp(4), that these appellants had shown themselves to be violent and aggressive and, as such, to be blemishers of the peace. Their contention had been all along that the Fong family had been the cause of all the trouble and the learned magistrate was able to make no definite finding as to the appellants' conduct which caused me to think that I ought to embark upon further enquiry. It may have been desirable that the appellants, or some of them, should be required to find security for their good behaviour, but in all the circumstances I did not think it right to subject them to further litigation. 25th October 1968. Representation: Mr. Patrick Yu (Woo & Woo) for the Appellants. Mr. Michael Wong for the Crown. (1) 1964 2 All E.R. 131. (2) 1907 2 K.B. 280, 384. (3) (1912) 2 I.R. 374 (4) 1957 1 All E.R. 577. |