Owen John Inglis v. Loh Lai Kuen Eda

CACV341/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 341 OF 2004

(ON APPEAL FROM HCAL NO.74 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Yeung JJA in Court

Date of Hearing : 29 June 2005

Date of Handing Down Judgment : 21 July 2005

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J U D G M E N T

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Hon Ma CJHC :

1.This appeal (of the Respondent) raises the question whether, in relation to a summary offence, an accused person (“the defendant”) can appear in the Magistrates’ Court only by counsel and not personally, and if there is such an entitlement, the limits to this.

2.The present case arises out of the prosecution of the Applicant for a speeding offence.  It is alleged that on 9 October 2002 on the Tsing Kwai Highway (near Chainage No.7.2) he was driving at a speed of 96 kph when the speed limit was 80 kph.  This was contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap.374.

3.An information having been laid against him, a summons was issued on 12 February 2003 requiring his appearance before a magistrate at Shatin Magistrates’ Court at 9:45 am on 13 March 2003.  This summons was issued under section 8(1) and (1A) of the Magistrates Ordinance, Cap.227 (“the Ordinance”), provisions I shall have to look at more closely below.

4.The Applicant’s initial instructions were to contest the summons.  For various reasons that are not important to be considered in this appeal, the hearing of the 13 March 2003 was adjourned several times until 1 June 2004.  Each time the hearing date was refixed, the Applicant was informed by the First Clerk of Shatin Magistracy that he should “appear” on the refixed date for hearing.  I shall say more about this later as this was an aspect highlighted by Mr Kevin Zervos SC (for the Respondent）.

5.On 5 March 2004, the Applicant’s solicitors informed the Court that he intended to plead guilty.  This change of position was apparently due to the reliability of the radar speed detector of the kind used on 9 October 2002 having been confirmed in another case.  On 31 May 2004, the Applicant’s solicitors wrote to the Court stating that they would appear on behalf of the Applicant the next day.  Reference was made to section 18 of the Ordinance.

6.On 1 June 2004, when the Applicant’s case was called on for hearing, only his solicitor was present.  While counsel for the prosecution was agreeable to proceed, the magistrate (the Respondent) was not.  She took the view that even though the Applicant intended to plead guilty through his solicitor, he had to be present in person.  Reference was made by the magistrate to section 19 of the Ordinance and to R v. Siu Kwong Wing, unreported, Cr App No. 528 of 1992, 2 April 1993, Court of Appeal and R v Wong Yan Fuk, unreported, Mag App No. 414 of 1993, 18 November 1993, Court of Appeal.  Notwithstanding the existence of a decision of the Court of First Instance directly on the point whether a defendant charged with a summary offence had to appear in person or whether he could do so by counsel (Chain Chi Woo David v Lo Polly (Special Magistrate) [1996] 4 HKC 466), the magistrate adjourned the hearing, taking the view that she could not proceed in the absence of the Applicant.

7.This led to the Applicant instituting judicial review proceedings on 11 June 2004 seeking the following orders : -

“	(1)	An order of certiorari to bring up and quash the decision of Miss Loh Lai Kuen Eda, a Permanent Magistrate, on 1st June 2004 refusing to hear and determine the summons issued to the Applicant dated 12th February 2003 without him appearing in person despite the fact that he was represented by his solicitor
	(2)	An order under Order 53 r.9(4) of the Rules of the High Court remitting the matter to the Principal Magistrate or a different Magistrate of the Shatin Magistrates’ Courts to reconsider the decision and reach a decision in accordance with the findings of this Court
	(3)	An order under O.53 r.3(10)(a) of the Rules of the High Court that the proceedings against the Applicant in respect of the Summons dated 12th February 2003 be stayed pending determination of this Application;”

8.Hartmann J granted leave on 11 June 2004 and heard the application proper on 5 October 2004.  A week later, judgment was handed down in which the above orders sought by the Applicant were granted.  The Respondent now appeals the decision.  For the reasons that follow, I agree with the Judge’s decision and the orders made by him and the appeal accordingly falls to be dismissed.

9.The decision in this appeal requires a close examination of various provisions in the Ordinance and the relevant cases.

The statutory scheme

10.We are concerned in the present case with the way summary offences are dealt with in the Magistrates’ Court.  Part II of the Ordinance is headed “PROCEDURE IN RESPECT OF SUMMARY OFFENCES”.  Summary offences are those offences where the penalty that can be imposed on a conviction does not exceed a fine of $10,000 and imprisonment for 6 months (with or without any additional order in relation to the suspension or cancellation of a licence, any disqualification for obtaining or holding a licence or as to compensation or otherwise : section 7D(1)).  The offence with which the Applicant was charged is a summary offence.

11.The prosecution of summary offences begins with a notice of prosecution in prescribed form requiring the defendant to indicate whether he intends to plead guilty or not guilty : sections 7D and 7E.  Where a defendant files a written notice to indicate his intention, a summons will be issued under section 8 whereupon the prosecution proceeds as if an information had been laid : section 7E(2).

12.Section 8(1) states : -

“	8.	Issue of summons to defendant and mode of service thereof
		(1)	In every case where a complaint is made to or an information laid before a magistrate or an officer of a magistrate’s court who is authorized in writing for that purpose by a magistrate, being a complaint or information in respect of which a magistrate has power to convict summarily or to make an order for the payment of money or otherwise, it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate’s court who is authorized under this subsection.”

It is to be noted that the summons is issued subject to the provisions in the rest of Part II of the Ordinance.

13.There then follows section 8(1A), a provision much relied on by Mr Zervos : -

“

(1A)

Every such summons shall be issued to the person against whom the complaint has been made or information laid, stating the matter of the complaint or information and requiring him to appear at a certain time and place before a magistrate to answer to the complaint or information and to be further dealt with according to law.”

The summons must be in the prescribed form, this being Form 1 in the Schedule to the Magistrates (Forms) Rules.  This Form requires, as section 8(1A) does, the defendant to “appear” at a certain date and time before a magistrate to answer to the complaint or information.  There is no definition, however, of what is meant by appearance here.

14.Section 16(1) allows a defendant legal representation.  This provision states : -

“The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf”.

Section 16(2) gives the same right to the prosecution.  “Counsel” means “any barrister, advocate or solicitor having the right of audience before any court in Hong Kong” : section 2.  The heading to section 16 is “Rights of parties to conduct case personally or by counsel”, although of course the heading is no guide to the proper construction of the statutory provision : see section 18(3) of the Interpretation and General Clauses Ordinance, Cap.1.

15.In my view, section 16(1) enables a defendant against whom a complaint has been made or an information laid to engage counsel (as defined in section 2) to act on his behalf in proceedings in the Magistrates’ Court, and this includes dealing with his plea and conducting his defence.  It was argued by Mr Zervos that section 16(1) should be divided into two parts : - the first being that in relation to a complaint or information a defendant should be allowed to “make his full answer and defence thereto” and the second that a defendant would be allowed to have witnesses examined and cross-examined by him or by his counsel.  The thrust of this argument was that counsel’s role was restricted to the second part only.  There is some attraction to this submission when one looks at the matter from a purely grammatical point of view.  However, it scarcely makes any sense to restrict counsel’s role only to the examination and cross-examination of witnesses.  What about, one asks rhetorically, the general conduct of the case apart from the testimony of witnesses, such as making legal submissions?  The intention of section 16(1) must I think be to enable a defendant to have counsel represent him in the proceedings.  Of course he can conduct the proceedings himself but where he so wishes, he is entitled to have counsel represent him.  For my part, I do not think that it does any violence to the words of section 16(1) to read it as follows : -

‘	The party against whom the complaint is made or information laid shall be admitted –
	(a)	to make his full answer and defence thereto; and
	(b)	to have the witnesses examined and cross-examined;
	by him or by counsel on his behalf.’

This may be inelegant but it is not impermissible.  I would have been prepared to arrive at the above conclusion even without the benefit of authority but I see that there is one that supports this construction.  In The King v Thompson [1909] 2 KB 614, the English Court of Appeal construed section 12 of the Summary Jurisdiction Act 1848 which was in almost identical terms to section 16 (and on which I am sure section 16 was based).  Section 12 states : -

“the party against whom such complaint is made or information laid shall be admitted to make his full answer and defence thereto, and to have the witnesses examined and cross-examined by counsel or attorney on his behalf”. 

16.Mr Zervos submitted that the difference in wording was important but I see no difference as a matter of substance at all.  Lord Alverstone CJ said at 618 when referring to this provision : -

“In my opinion, those words are to be read as meaning that the defendant is entitled to be represented by counsel or attorney for the purpose of making his answer and defence as well as for the purpose of the examination and cross-examination of witnesses”.

17.In seeking to persuade us that section (16)(1) should be read in a limited way, Mr Zervos referred to section 8A(7) of the Ordinance.  Section 8A deals with certain offences as specified in the Fourth Schedule to the Ordinance, including offences relating to hygiene and other aspects of public health and to country parks.  Section 8A(7) states : -

“Notwithstanding anything to the contrary in this Ordinance, a magistrate may permit a representative to appear on behalf of a person upon whom a notice under subsection (1) has been served where such representative satisfies the magistrate that he is authorized to enter a plea of guilty and is himself able to pay any fine imposed.”

The argument sought to be raised by Mr Zervos was that here was a provision specifically enabling a “representative” of a defendant to enter a plea on his behalf.  This was not the way in which section 16(1) was framed.  I regret I am unable to see the relevance of this reference.  It does not assist in the construction and meaning of section 16(1) at all.  Section 8A(7) merely states the limited authority of a “representative” of a defendant.  A representative can of course include counsel but is a different concept (cf sections 19A(1) and 87(2) of the Ordinance and section 49(4) of the Criminal Procedure Ordinance, Cap.221).

18.And so we arrive at provisions dealing with the hearing of the complaint or information itself.  Section 16 having dealt with a defendant’s right to conduct the hearing either himself or by counsel, section 18 deals with the effect of the appearance at trial by counsel.  That section states : -

“	18.	Appearance by counsel
		At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent:
		Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party.”

19.The first part of section 18 is clear : apart from reiterating the right of a defendant to be represented by counsel at the hearing of a complaint or information, it states that where a defendant is so represented but he is actually physically absent, he is deemed not to be absent at the hearing.  This of course suggests that normally a defendant is to be expected to attend his trial and be physically present (that is, but for this provision).  It is a deeming provision : where a defendant is represented by counsel (and counsel is present), he is deemed “not to be absent”; in other words, he is deemed to be present.  Mr Zervos makes some play of the difference between a deeming provision to the effect that a person is not absent and one where he is present, but was unable to say exactly what that difference was as a matter of substance.  Section 18 in my view obviously deals with the appearance of a party by counsel and the consequence of this.  The words in the proviso “appearance of a party by counsel” make it quite clear that this is the subject matter of section 18.  The question of the presence of a defendant is very much intended to be dealt with here.

20.What difference does the proviso to section 18 make?  Mr Zervos submits that the proviso makes all the difference and renders the deeming provision in the earlier part of section 18 inapplicable where an enactment or condition of any recognizance (this meaning the granting of bail) expressly requires the appearance of a party at the relevant hearing of a complaint or information.  Here, as I understand his submissions, he mainly relies on three statutory provisions :  sections 8(1A), 19 and 20.  I might perhaps add here that the words “expressly requiring the appearance of a party” in the provision must be a requirement that the relevant party is actually present.

21.I agree with Mr Zervos to the extent that where a statutory requirement does require the physical presence of a defendant at the hearing, then the deeming provision in the earlier part of section 18 becomes inapplicable.  And also that such statutory enactments can even be found within the Ordinance itself.  In his judgment, Hartmann J appeared to say that the reference to such enactments could not include provisions in the Ordinance itself.  I would disagree with the Judge if he meant to put it in such terms, for on a natural reading of section 18, the term “any enactment” cannot be read in this narrow way.  It is unqualified.  However, on reflection, I am not convinced that the Judge took this view at all.  All he was saying was that the Ordinance did not contain any provisions that expressly required the actual attendance of a defendant at a hearing, a view, as we shall see, I share.

22.As to section 8(1A), Mr Zervos’ point is a simple one.  That subsection requires a defendant to appear at a certain time and place if he is served with a summons to that effect (see paragraph 13 above).  However, in my view, this begs the question as to what is actually required when a person has to “appear” at a certain time and place.  Can he appear through counsel or must he appear in person?  Nothing in section 8(1A) states that a defendant must appear in person.  Accordingly, it seems to me, section 8(1A) has to be read subject to the first part of section 18 (and section 16) so that a defendant can appear by counsel.  As will be seen presently, other provisions in the Ordinance reinforce this.

23.Section 19(1) of the Ordinance states as follows : -

“	19.	Proceedings at hearing
		(1)	Where the defendant is present at the hearing, the substance of the complaint or the information (or the summons which has been issued under section 8 pursuant to such complaint or 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.  If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an order against him accordingly; but if he does not admit the truth of the complaint or information as aforesaid, then the magistrate shall proceed to hear upon oath the complainant or informant and such witnesses as may be produced in support of the complaint or information, and also to hear the defendant and such evidence as may be adduced in defence; and also to hear and examine such other witnesses as the complainant or informant may examine in rebuttal, if the defendant or his counsel has examined any witnesses or given any evidence other than as to the defendant’s general character.”

24.In my view, this provision does not assist Mr Zervos either.  It again begs the question of what is meant by a defendant being present at the hearing, a question which I believe is answered by the deeming provision of section 18.  Section 19 does not actually require a defendant to be physically present.  It merely prescribes the particular procedure to follow when the defendant himself is present.  That this is so is confirmed when one looks at the legislative history.  Prior to the introduction in 1976 of sections 18-18E dealing with the appearance and non-appearance of parties and the consequences of this, these matters were governed by the old section 18 of the Ordinance (which was repealed by amendments introduced in 1976).  Section 18(4) of the old provisions stated as follows : -

“If both parties appear, either personally or by their respective counsel, before a magistrate who is to hear and determine the complaint or information, then the magistrate shall proceed to hear and determine the same.”  (emphasis added)

In my view, this provision made it clear that a defendant (as well as the prosecutor) could appear either personally or by counsel.  This is supported by the case of The King v Thompson referred to above.  Section 19 (more or less in its present form) then immediately followed the old section 18.  The matters dealt with in this provision (being the proceedings at trial) cannot therefore have related to the question of what was meant by a defendant’s appearance in court.  This was a matter that had already been dealt with in the previous section.  The juxtaposition of section 18 and section 19 in this way would admit of no other sensible construction.  With the repeal of the old section 18 came the introduction in 1976 of the present section 18 and sections 18A-E.  In my judgment, therefore, the same analysis applies : section 18 deals with the appearance of a defendant (whether by himself or by counsel) while section 19 deals with something else (the proceedings at trial).

25.It is true, as Mr Zervos points out, that section 19(1) does refer to the defendant at first and then the defendant “and his counsel” later on as if to suggest a distinction between the two.  He argues in these circumstances that the effect of section 19(1) must be then to require a defendant to be present when a plea is taken even though when witnesses are to be examined, this can be done by counsel on his behalf.  This submission has a superficial attraction but on closer examination, it cannot change the analysis as set out in the previous paragraph.  The reference to the defendant’s counsel in section 19(1) is necessary to distinguish between the situation where a defendant examines witnesses himself and one where he instructs counsel to do so.  The reference to just the defendant at the beginning of the provision deals with an entirely different situation, namely, where the defendant actually appears himself.

26.As for section 20(1), this states as follows : -

“	20.	Adjournment of hearing and procedure thereon
		(1)	Before or during the hearing of any complaint or information, a magistrate may adjourn the hearing to such time and place and on such conditions as he thinks fit.”

27.The argument based on this provision runs as follows.  Since a magistrate has the power to adjourn the hearing of any complaint or information “on such conditions as he thinks fit”, this must include the power to order the physical attendance of the defendant at the resumed hearing.  Further, he submits that this was exactly what had happened in the present case when, in the letter dated 12 December 2003 from the First Clerk of the Shatin Magistracy to the defendant, he was ordered to “appear” at 9:30 am on 1 June 2004 in Court 7 of Shatin Magistracy.  This was also the term used in the previous letters from the First Clerk when the original hearing date was adjourned.  I do not think this argument can succeed either : -

(1)	Section 20(1) does not in terms require the defendant to appear in person in court and so does not come within the proviso to section 18 in the first place.
(2)	I am not even sure that a magistrate can by using his powers under this provision compel the defendant to appear in person at the adjourned hearing.  Section 18 expressly allows a defendant to appear by counsel.  Further, section 20(6)(b) implicitly acknowledges the right of a defendant to appear either by himself “or by counsel”.  That subsection states : -
	“	(6)	If, at the time and place to which the hearing or further hearing is so adjourned –
			(a)	the complainant or informant does not appear, either personally or by counsel, a magistrate may dismiss the complaint or information on such terms as he may think fit, including a term that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as a magistrate may think fit; or
			(b)	the defendant does not appear, either personally or by counsel, the magistrate may –
				(i)	issue a warrant for the arrest of the defendant;
				(ii)	declare any recognizance to be forfeited; and
				(iii)	adjourn the hearing for such time as he may think fit.” (emphasis added)
(3)	In my view, this subsection strongly supports by its very wording the proposition that save where he has been required by a bail term to surrender himself or has been remanded in custody a defendant does not have to appear in person in answer to a complaint or information, but can do so by his counsel.  It acknowledges by its very terms that an “appearance” may either be in person or by counsel.  Furthermore, if a defendant does not turn up at the hearing of a complaint or information, whether original or as adjourned, there is simply no power to order his arrest if his counsel appeared.  Mr Zervos had no answer to this.
(4)	In support of his general contention that a defendant had to attend in person at least at the hearing of the complaint or information in answer to the summons (section 8(1A)) or when answering to the charge made against him (section 19), Mr Zervos said that if this were not so then the attendance of a defendant even for serious charges could never be secured and this must be absurd.  In my judgment, this submission ignores the power of a magistrate to ensure the attendance of a defendant by remanding him in custody or on bail : see section 20(3).  Where the defendant who has been admitted to bail fails to surrender to custody, a warrant for his arrest may be issued by the magistrate : section 20(4).

28.Reference was also made by Mr Zervos to sections 18A, 18C, 18D and 18E of the Ordinance and, during his oral submissions, to the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240.  Again, I am of the view that these provisions do not advance his submissions : -

(1)	Sections 18A, 18C and 18D all make reference to the appearance of parties at the hearing of a complaint or information.  All these provisions again beg the fundamental question of what is meant by an appearance.
(2)	It is argued on the basis of section 18E that since a defendant can plead guilty by letter as regards those offences set out in the Third Schedule to the Ordinance (including various road traffic offences and specifically the offence with which the Applicant was charged in the present case), it somehow must follow that if a defendant wished to plead guilty in court, he had to be present.  This does not follow at all.  Section 18E is silent on what constitutes appearance at the hearing of a complaint or information.  It merely deals with the ability of a defendant to plead guilty by post for certain offences.  Incidentally, I should here point out that Mr Zervos also contended that by the said letter dated 5 March 2004 (see paragraph 5 above), the Applicant had invoked section 18E and that therefore it was open to the magistrate under section 18E(1)(b) to adjourn the matter which she did.  That does not appear to have been the reason why the Respondent adjourned the hearing in the present case (according to the transcript of the proceedings provided to us.)  No reference was made at all to section 18E.  Instead, she simply took the view that she could not proceed in the absence of the Applicant.  Anyway, whether or not the adjournment was an exercise of her powers under section 18E was in fact besides the point : the real reason for it was the absence of the Applicant.
(3)	Sections 5(1) and 6(1) of the Fixed Penalty (Criminal Proceedings) Ordinance are of limited assistance as well, these provisions again begging the fundamental question.

29.In conclusion therefore, I am of the view that section 18 of the Ordinance enables a defendant who is not subject to any bail conditions requiring his attendance or who has not been remanded in custody, to appear at hearing of a complaint or information by his counsel.  His physical attendance in such circumstances is not required.  This is of course subject to any statutory provisions that require his actual appearance but none of the provisions in Part II of the Ordinance requires this as we have seen.

30.I would perhaps add that were this not the conclusion and that I accede to Mr Zervos’ argument, it is difficult to see just how section 18 can operate in practice.  Mr Zervos was driven to argue that perhaps section 18 was only intended to refer to hearings other than those referred to in the summons (section 8(1A) or the trial itself (section 19)).  The fallacy with this submission is that the wording of section 18 is not restricted in this way.

The cases

31.The authorities, both from Hong Kong and the United Kingdom, support the conclusion I have reached on the meaning and effect of section 18.

32.In Chain Chi Woo David v Lo Polly (Special Magistrate), Sears J held, by reference to section 18, that absent the applicability of the proviso to that section, a person could be represented by counsel at the hearing of an information or complaint and need not himself appear.  For the reasons set out above, I would agree with this decision.

33.Although the reasons for this decision are brief and the point appears to have been conceded by the Crown in that case, it was a decision that was binding on the Respondent.  Mr Zervos accepts this and authority supports this proposition : see Gu Chu-kwong v The Crown [1952] 36 HKLR 353.  However, he says the decision was made per incuriam.  Here, even if the decision could be said to have been decided per incuriam (a submission with which I disagree), the Respondent was bound by it.  The per incuriam rule or exception does not apply to a decision of a court superior to that in which the rule is sought to be invoked : - see Cassell & Co Ltd v Broome and Another [1972] AC 1027.  To be fair to the magistrate, it may be that she was influenced by a letter that the Principal Magistrate wrote to the Law Society on 17 May 2002 (not, it appears, in relation to any case but just generally on the topic of section 18 of the Ordinance) in which doubts were cast on the correctness of Chain Chi Woo David.  However, properly read, all that the letter sought to do was to say that the correctness of the decision was open to debate.  It was not in terms suggesting that it was not a binding authority.

34.In submitting that Chain Chi Woo David (and this authority is not binding on this Court) was decided per incuriam, Mr Zervos makes reference to the absence in Sears J’s judgment to the statutory context of section 18, by which he means more precisely sections 8, 18A, 18C, 18D, 18E, 19 and 20 of the Ordinance.  He also relies on four cases : - R v Siu Kwong Wing, R v Wong Yan Fuk, R v Ellis (1973) 57 Cr App Rep 571, R v Williams (1977) 64 Cr App Rep 106.

35.I have already earlier dealt with the statutory provisions.  They offer no support for Mr Zervos’ submissions.  I am also of the view that the cases now relied on likewise do not assist the Respondent.  In his judgment, Hartmann J analyzed the four cases as follows : - Siu Kwong Wing did not address the question with which we are faced since that case did not concern summary proceedings at all; Wong Yan Fuk, although arising out of a trial in the Magistrates’ Court, did not address section 18 of the Ordinance (as the Judge remarked, it was simply not germane to the case); Ellis and Williams did not concern summary proceedings either.  Ellis and Williams are authorities for the proposition that in an arraignment, a defendant must be called upon to plead and he must personally answer to that plea.  This may well be the position in a higher court but in the Magistrates’ Court, the position is specifically governed by those statutory provisions to which reference has already been made above.

36.With respect, I agree with the Judge’s analysis of these cases.  As I have said, they provide no assistance to the Respondent.

37.On the contrary, there exists express authority for the proposition that in Magistrates’ Courts, there is no obligation on a defendant to appear in person.  In The King v Thompson, the Court of Appeal in considering provisions almost identical to sections 8(1A) and (16) of the Ordinance, held that it was not necessary for a defendant to appear personally at the hearing of an information or complaint.  In that case, the Court had to construe section 13 of the Summary Jurisdiction Act 1848 which read : -

“But if both parties appear, either personally or by their respective counsel or attornies, before the justice or justices who are to hear and determine such complaint or information, then the said justice or justices shall proceed to hear and determine the same.”

This provision is virtually identical to the old section 18(4) of the Ordinance enacted in 1971 (see paragraph 24 above).

38.As a matter of legislative history, section 18(4) was repealed in 1976 with the introduction of section 18D (a provision relied on by Mr Zervos as I have observed).  That section states : -

“	18D.	Appearance of both parties
		Where at the hearing both the complainant or informant and the defendant appear, the magistrate shall proceed to hear and determine the case.”

39.It will be noted that while the words “either personally or by their respective counsel” are now missing in section 18D, the 1976 amendments to the Ordinance also enacted the present section 18.  This, as Mr Hectar Pun (for the Applicant) submitted, would suggest that no change to the previous law was intended.  I agree.  The excerpts from Hansard also demonstrate that no great change was intended.  When the 1976 changes were introduced in the Legislative Council by the Attorney General, it was said that the changes with which we are concerned were merely to remove unnecessary duplication and simplify existing provisions.

Conclusion

40.For the above reasons, I would dismiss the appeal and make an order nisi that the costs of and occasioned by this appeal should be to the Applicant, to be paid by the Respondent, such costs to be taxed if not agreed.  A similar order for costs should also be made in favour of the Hong Kong Bar Association which was permitted by Hartmann J to participate as an interested party in these proceedings.  Its locus standi has not been challenged by the Respondent.

Hon Stock JA :

41.I respectfully agree with the judgment and conclusion of Ma CJHC.

Hon Yeung JA :

42.I agree with the judgment of the Chief Judge.  I have nothing to add.

Hon Ma CJHC :

43.Accordingly, the appeal is dismissed.  We also make an order nisi that the costs of and occasioned by this appeal be to the Applicant, to be paid by the Respondent, such costs to be taxed if not agreed.  A similar order on costs is made in favour of the Hong Kong Bar Association.

Mr Hectar Pun instructed by Messrs Vidler & Co for the Applicant

Mr Kevin P Zervos SC and Ms Cecilia Chan of the Department of Justice for the Respondent

Mr Paul Harris instructed by Messrs T S Tong & Co for the Hong Kong Bar Association