Attorney General v. Ip Wai-kwong

CACC001042/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 1042 OF 1981

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Between

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Coram: Addison, J. in Court

Date: 8 January 1982

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JUDGMENT

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1. The main question arising for determination in this appeal by way of Case Stated is whether a magistrate on adjourning a hearing, including review proceedings, has a general power under sub-section (1) of section 20 of the Magistrates Ordinance, Cap. 227 to award costs over and above the expressed limited powers contained in sub-sections (2) and (6) of section 20.

2. The relevant sub-sections of section 20 are these :-

3. The learned magistrate took the view that the words, "on such conditions as he thinks fit" in section 20(1) gave him a general power to award costs when adjourning a hearing for reasons other than those appearing in sub-sections (2) and (6) of section 20 and that this power extended to review proceedings conducted at the instance of the Crown and heard before the acquittal of the respondent.

4. The facts of the case were these. The respondent appeared before the magistrate's court on the 22nd May, 1981 charged with having indecently assaulted a woman on the 20th May, 1981. He pleaded not guilty and his trial was set down for hearing on the 30th July, 1981. Prior to his first appearance in court he had made a cautioned and an uncautioned statement to the police copies of which his solicitor was anxious to obtain before the trial commenced. He wrote letters to the Police on the 20th, 24th and 25th July asking for copies of both statements but none was forthcoming. He still had none on the 30th July, 1981 and on that day the magistrate was told of the position. At this hearing the prosecutor notified the court that the cautioned statement amounted to no more than a bare denial of the offence and that it was not the Crown's intention to adduce evidence of it at the trial. The court was also informed that the uncautioned statement, which in fact was an antecedent statement, would only be tendered in evidence in the event of the respondent being convicted of the offence.

5. The earned magistrate made an order that copies of both cautioned and uncautioned statements be served on the respondent's solicitor together with certified translations. On the application of the Defence the case was adjourned until the 11th August, 1981.

6. On the 11th August 1981 the parties again appeared before the magistrate who learned that his order had not been fully complied with in that the respondent had only been supplied with a copy of his cautioned statement in Chinese. No certified translation thereof had been handed to the respondent's solicitor, who was still awaiting a copy and a certified translation of the respondent's antecedent statement. Once again the Defence applied for an adjournment of the hearing until the order was complied with. The magistrate granted the adjournment and ordered the Crown, then represented by Crown Counsel to pay $2,000 costs to the respondent. This was the first order made as to costs.

7. On the 13th August, 1981 a further copy of the respondent's caution statement in Chinese and an uncertified translation of the antecedent statement was served on the respondent's solicitors. Throughout the trial the respondent never received a translation, certified or otherwise, of his cautioned statement, a copy of his uncautioned statement in Chinese or a certified translation of it.

8. At about this time (I have not been told the precise date) the Crown applied to the magistrate to review his order of costs made on the 11th August. The magistrate granted the application and fixed the hearing date on the 21st August. The respondent did not appear on that date because neither he nor his solicitor was warned either by the Court or by the prosecutor of that hearing. On the solitary appearance of Crown Counsel on the 21st August, 1981 the learned magistrate treated counsel's attendance as renewing his application for review and again granted it, fixing the hearing date on the 2nd September, 1981.

9. On that date the court heard first the review proceedings wherein the Crown sought a review of the order as to costs made on the 11th August. Mr. Westbrook appeared on behalf of the Crown and the respondent was represented by his solicitor. The learned magistrate refused to alter his order and for good measure made two further orders as to costs. He awarded the respondent $750 costs for the abortive hearing on the 21st August, 1981 and he also awarded him $2,000 costs for the hearing of the review application held that day.

10. After those orders were made the respondent's trial began. He was found not guilty and was acquitted.

11. From the foregoing, the following facts emerge :-

12. The questions for the opinion of this court as set out in the Case Stated are as follows :-

13. It is well known that a court has no inherent power to award costs in criminal cases. Its power to award costs depends entirely on statute. Accordingly, unless some statute confers that power - and here we are solely concerned with the Magistrates Ordinance, Cap. 227 then these orders must go whatever sympathy one may have with the magistrate in making the orders he did. The learned magistrate considered he had a power to award costs by virtue of the words "on such conditions as he thinks fit" in section 20(1) of Cap. 227 and it is to these words that I first turn.

14. Similar words were considered by Pickering, J. (as he then was) in The Attorney General v. HO Yuen-kwong [1971] H.K.L.R. 259.  In that case there was a variance between the charges and the evidence adduced in support thereof which the magistrate believed had misled the defendant in preparing his defence. The magistrate allowed an adjournment and acting under section 23(2) of Cap. 227 (1971 Edition of the Laws) he ordered the Crown to pay costs. In doing so he gleaned this power from the inclusion in section 23(2) of the words "it shall be lawful for the magistrate on such terms as he may think fit to adjourn the hearing of the case ........." The crown appealed against that order. It was held that the expression "on such terms as he may think fit" in section 23(2) of the Magistrates Ordinance included the power to order the payment of costs on an adjournment.

15. Section 23 of the Magistrates Ordinance as it then existed is set out on page 261of the report. It is unnecessary to recite that section because when it was amended in 1976 section 23(2)(a) made specific provision for the magistrate to award costs to a defendant misled by a variance between the information and the evidence adduced in support thereof. The present day provisions were absent at the time Pickering, J. gave his judgment. Thus at first blush it might be thought that the words in section 20(1) Cap. 227, "on such conditions as he may think fit", assuming that the word "conditions" is indistinguishable from the word "terms", contains the seeds for awarding costs.

16. The case of the Attorney General v. HO Yuen-kwong was referred to by the Full Court (comprising Rigby, C.J., Huggins and Pickering JJ) in the Attorney General v. CHAN Chit-yin [1971] H.K.L.R. 404.  In that case the appeal court was required to decide whether the complainant or informant did not appear by his "counsel" when there was present in court a public prosecutor appointed under section 13 of Cap. 227. It was held that "counsel" in section 18(2) included a public prosecutor appointed under section 13.

17. During the course of argument it was mooted that the magistrate might have had a general power to award costs under section 18(2).

18. That section read

"If, at the time and place so appointed, the defendant attends voluntarily in obedience to the summons ......, then, if the ... informant, having had such notice as aforesaid, does not appear by himself or his counsel, the magistrate shall dismiss the ... information, unless for some reason he thinks proper to adjourn the hearing of the same until some other day, on such terms as he may think fit ..."

Of this suggestion, Huggins, J. (as he then was) said, at page 407 of the report,

"What was probably intended to be raised by the 2nd question was the specific issue whether the words 'on such terms as he may think fit' included a term as to the payment of costs, but the question as it stands is so widely worded that we would not think it right to answer it in its present form : even if 'terms' includes terms as to costs, section 18(2) obviously cannot empower the magistrate to make an order for costs in every case but is limited, as we have seen, to cases where an adjournment is granted because no one is present who can lawfully conduct the prosecution."

and he added at page 408

"In view of what we have said it is immaterial to the decision of the present case whether, even if the Appellant had not been represented by 'counsel' at the hearing, the terms which the magistrate might have thought fit to impose upon grating an adjournment could lawfully have included a term as to the payment of costs. Counsel for the Appellant submitted that a power to award costs should be conferred explicitly, since there was no inherent jurisdiction to award costs : the terms contemplated by the Legislature were terms 'incidental to the proceedings'. In the circumstances we prefer not to reach a concluded view upon this matter and content ourselves with saying that in so far as it assists us to interpret the words 'on such terms as he may think fit' we are not at present persuaded that Attorney General v. HO Yuen-kwong was wrongly decided, but we will decide the matter if and when it becomes necessary so to do.

The 1st question posed is, again, in such wide terms that no useful purpose would be served by answering it. We merely note that it is clear that, whatever the circumstances, where an adjournment is granted under section 20(1) (the section under which the magistrate should have acted here if he thought an adjournment appropriate) no terms of any kind can be imposed, save in so far as the granting of bail may be regarded as a term. The fact that no costs can be awarded is, of course, just one of the factors relevant to the exercise of the magistrate's discretion to grant or refuse an adjournment : it is for him to decide whether in all the circumstances undue hardship would be caused to a defendant if the case were adjourned for a cause for which the defendant was in no way to blame. No doubt there will be cases where undue hardship would result and an adjournment will be refused, although had provision been made to compensate the defendant for any financial loss thereby occasioned it would have been appropriate to grant an adjournment. We think it is regrettable, to say the least of it, that no such provision has been made and most strongly urge that further consideration be given to making such provision by an amendment to the Magistrates Ordinance."

19. The reference to section 20(1) of Cap. 227 was a reference to it as it then existed and before its amendment in 1976.

20. Section 20 of the 1971 Edition of the laws was in these terms :-

"20. (1) Before or during the hearing of any complaint or information as aforesaid, it shall be lawful for a magistrate in his discretion to adjourn the hearing of the same to a certain time and place to be then appointed and stated in the presence and hearing of the party or parties, or their respective counsel, and in the meantime the magistrate granting and making such adjournment may suffer the defendant to go at large, or may commit him to prison or some other place of security or to such other safe custody as the magistrate may think fit, or may discharge the defendant on his entering into a recognizance, with or without a surety or sureties, at the discretion of the magistrate, conditioned for his appearance at the time and place to which the hearing or further hearing is adjourned :

Provided that in every case where a defendant is discharged on recognizance as aforesaid, and does not afterwards appear at the time and place mentioned in the recognizance, the magistrate then present shall certify on the back of the recognizance the non-appearance of the defendant, and may declare the same to be forfeited in manner hereinafter provided, and may forthwith issue his warrant for the apprehension of the defendant.

(1A) ..........

(2)    If, at the time and place to which the hearing or further hearing is so adjourned, the complainant or informant does not appear, either personally or by counsel, the magistrate then present may dismiss the complaint or information, with or without costs, as to the magistrate may seem fit; and if, at the time and place aforesaid, the defendant does not appear, either personally or by counsel, the magistrate may issue his warrant for the apprehension of the defendant, and may adjourn the proceedings for such time as he may think requisite."

21. Section 20(2) was the only sub-section in that section to deal with costs.

22. Whether the decision in The Attorney General v. HO Yuen-kwong [1971] H.K.L.R. 259 was correct or not (and I am in no position to overrule it) the dictum of Huggins, J in Chan's case clearly states that the former section 20(1) gave no power to award costs on an adjournment.

23. The law was changed in 1976. Section 20 was re-written and specific provision was made for costs to be awarded by a magistrate in the limited circumstances therein set out, more especially those in sub-section 2. If, when enacting the new section 20, the legislature did not intend a limited power to award costs on granting an adjournment why, it may be asked, did it legislate in the way it did? If it intended a general power to award costs in section 20(1) by the use of the words "on such conditions as he thinks fit" what then was the necessity to enact sub-section (2) in its present form? Furthermore if there is a general power under section 20(1) the legislature has placed no limit on the amount to be awarded.

24. A comparison between the old and new sections 18, 18A, 18B, 20, 23 and 69 shows that the legislature was introducing a new code in respect of costs in criminal cases but nonetheless limited to the circumstances therein set out. In my opinion the circumstances when a magistrate may award costs on adjourning a hearing are limited to those set out in sub-sections (2) and (6). In this particular case the complainant was present by "counsel" and hence section 20(2)(a) had no application. Furthermore section 20(2)(b) could not be invoked for although the adjournment was occasioned by "the default, neglect or omission" of the Crown nevertheless the adjournment was granted not on the application of the prosecution but on the application of the Defence. Thus although it would have been proper in the circumstances of this particular case for the Crown to have asked for the adjournment and to have acceded to an order as to costs, the Crown did not do so.

25. Had the learned magistrate not made any order as to costs, then, on dismissing the complaint he could have made an order as to costs under section 69 of Cap. 227 had he felt upon a consideration of the evidence as a whole that the proceedings ought not to have been instituted or pursued but that would have been a matter distinct from awarding costs on an adjournment before or during the hearing where such is governed by section 20 of the Ordinance.

26. My answer to Question 1 is, therefore, "NO".

27. Question 3 has already been answered above.  The powers of a magistrate to award costs on an adjournment are contained in section 20, Cap. 227 and are limited to the instances therein set out. The answer is "NO".

28. Questions 4 and 5 relate to orders as to costs made in review proceedings. Briefly speaking, Question 4 refers to an order made in the course of those proceedings whilst Question 5 deals with orders as to costs made upon the determination of those proceedings.

29. In my opinion section 104 of Cap. 227 does not confer upon a magistrate a power to award costs in review proceedings. If he makes an order as to costs he may only do so in pursuance of the express powers granted to him by sections 18A, 18B, 20, 23 or 69 of the Ordinance. When made, the order must be to compensate a party for the expenses he has incurred. Neither the respondent nor his solicitor appeared before the court on the 21st August, 1981 and consequently there were no expenses involved to be compensated. Thus the compensatory basis upon which costs are awarded was missing. In this case it would seem that the order was made as a means of punishing the prosecutor and this is impermissible. In any event none of the above sections came into play. Section 69 was inapplicable because that section contemplates an order made at the conclusion of the trial and not on an adjournment which falls within section 20.

30. The answer to Question 4 is "NO".

31. Question 5 is couched wider than the Case requires. In this particular case the Crown applied for the review and the dismissal of that review did not terminate the actual trial but led the magistrate to affirm his earlier order as to costs and to order further costs against the Crown including those of the review itself when all the parties were present. The latter order could not have been made under section 69 because under that section a magistrate may only award costs in favour of a defendant where he dismisses the complaint or information and is satisfied that the proceedings ought not to have been instituted or pursued against him. In this case the trial still remained to be heard. Nor did the magistrate have power to award the costs of the review under section 20(2) (a) or (b). The complainant was present by counsel and there was no application for an adjournment of a hearing of a complaint. The hearing of the review was an interruption in the trial proceedings; it was not an adjournment nor was it occasioned by some default, neglect or omission on the part of counsel for the complainant.

32. I do not say there never can be an order for costs on the conclusion of review proceedings. One can imagine circumstances when costs might be imposed, for example if the magistrate re-hears the case wholly or in part under section 104(6) and feels, on dismissing the complaint, that his powers under section 69 should be invoked.

33. In this case the magistrate ordered costs of the review purporting to exercise a general power under section 20(1) of Cap. 227 and in my judgment no such general power conferred is thereby conferred.

34. The answer to Question 5 is

"In the particular circumstances of this case, 'NO'."

35. In turn now to Question 2. In its present form the Question asks whether a magistrate has power to order the prosecution to serve on the Defence copies of the original cautioned and uncautioned     statements made by the defendant to the police as well as certified translations thereof where the prosecutor does not intend adducing evidence of those statements at the defendant's trial.

36. Mr. Westbrook has pointed out that a copy of the original Chinese cautioned statement was eventually served on the Defence and he added that this Question was included in this particular form in the Case Stated in the event of this court ruling that the magistrate did have a general power to award costs under section 20(1) of Cap. 227. In those circumstances he was prepared to argue that since the prosecution did not intend relying on any of the statements and had expressly said so it would have been an unreasonable exercise of the magistrate's discretion for an order of costs to be made against the Crown. In view of the opinion given by this court on Question 1 he does not seek to pursue Question 5 and indicated that he was prepared to concede that a magistrate would have power to order the handing over of such statements (but without certified translations) under section 20(1) as a "condition" of his granting an adjournment.

37. The respondent was unrepresented at this appeal and so I have not heard full argument on this point. For myself, I doubt whether the power is drawn from section 20(1) not only because the "condition" would attach to the person not seeking the adjournment but because it seems to me that a criminal court must have and has an inherent jurisdiction to make such orders as are necessary to ensure that justice is done. However I do agree with Mr. Westbrook that the Crown should not be required to provide certified translations of such statements.

38. The attitude taken by the prosecuting authorities in this case was totally unwarranted and did not conform with the standards which one expects to he applied. As far as I know it has always been the practice for copies of an accused's statements to be supplied to him by the police and their failure to do so might well reflect on the accuracy or reliability of the original where a copy is not served. The fact that the prosecutor does not intend to utilise the statement is neither here nor there. Defence counsel should be entitled to see all the statements made to the police by his client and it would be expected by the court that he had seen them as part of his duty in preparing the accused's defence. An accused may have forgotten what he said to the police and wish to refresh his memory; his counsel may wish to verify that the contents of the statements accord with his client's instructions and the fact the accused may have uttered no more than a bare denial of the accusations levied against him is a matter defence counsel is entitled to ascertain before trial and utilise in whatever way he thinks appropriate at the hearing.

39. I am indebted to my learned Brother, O'Connor, J. for bringing to my attention an article entitled "Discovery upon Indictment in New South Wales" by Elkington in (1980) 4 Criminal Law Journal (Australia) where the writer says at page 22 :-

"It is now settled that where an accused person is subjected to police interrogation he should be furnished by the police with a copy of the record of interview (R. v. Dugan (1970) 92 W.N. (N.S.W.) 767. Indeed this principle is recognized in the Police Commissioner's Instructions issued to the police, which provide that 'whether or not a statement or record of interview has been signed by the person interrogated he should be given a copy forthwith'.

The failure to make a record of interview available may make the record suspect (R. v. Dugan) and may in any case be a ground for the trial judge to reject it in the exercise of his discretion if he regards it as unfair to allow it to be used."

40. The fact that the Crown does not intend relying on the statement does not mean that the Defence may not. (See Cheng Chiu v. R. [1980] H.K.L.R. 50, C.A.). In my opinion the time is now appropriate for the Authority concerned to issue instructions on this matter. I should make it clear that I am simply considering the statements made by an accused person and not those of witnesses to be called by the prosecution. I assume that the practice of the police supplying on request copies of an accused's statements, both cautioned and uncautioned, will continue to be followed but should there be a breach of that practice I see no valid reason why, in law, a magistrate is not empowered to make an order to that effect but without the necessity of ordering certified translations.

41. In the opinion of this court, the answers to Question 2 are

Representation:

Mr. Westbrook, Counsel for Crown.

Appellant absent.