HKSAR v. Yeung Siu Keung

HCMA51/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.51 OF 2005

(ON APPEAL FROM KCS8898 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 10 May 2005

Date of Determination : 10 May 2005

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DETERMINATION

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1.This application arises from an appeal against the decision of a magistrate, to which I have dismissed on 7 April with reasons handed down yesterday.  

2.Backgrounds and facts of the case are laid out in full of my judgment which I am not going to recite.

3.During the hearing of the appeal, both sides conceded that the proceedings before that magistrate against which the appeal was lodged was a nullity, and I directed the case to continue with the review proper before the original special magistrate. 

4.The point of law stated to be certified is as follows : 

“Does a judge of the High Court have jurisdiction to hear a magistracy appeal where the grounds of appeal disclose that the proceedings were a nullity or is the decision only challengeable by judicial review?”

5.The law relating to judicial review as a remedy to correct or rectify a decision of a magistrate where there has been an error of jurisdiction is well settled.  Of course an error of jurisdiction can entail a variety of circumstances and there cannot be any generalization as to when judicial review is preferred over an appeal, and that’s the reason why the word ‘may’ is used in Archbold 7-41.  In my judgment I have cited the case of Leung Moon Lam and section 25 of the High Court Ordinance in paragraph 22.  

6.The circumstances of the present case are unique.  The appeal was originally lodged against part of a sentence, i.e. a disqualification order.  Had there been no jurisdictional problem, no doubt the appeal would have been entertained.  However, both parties having conceded that the proceedings before that magistrate who had made the disqualification order to which the appellant was appealing against was a nullity.  That being so there is nothing to appeal against as the proceedings proper still remain at the stage pending review by the special magistrate, he having granted the application for review (paragraph 25).  It only follows that the matter would have to revert to its natural course, i.e. to be heard by the original magistrate on review proper. 

7.To hear the appeal and to exercise the powers under section 119(1)(d) would no doubt produce illogicalities (paragraph 31).

8.I appreciate that senior counsel has only been involved at a relatively late stage, and that all the proceedings from the magistracies to the Court of First Instance were conducted in Chinese.  With the greatest respect to senior counsel, the above stated point does not arise as far as this case is concerned.  This question posed concern how establish principles of criminal procedures are to be applied to facts of a particular case, the background and facts of this case being unique.  That question is misconceived. 

9.Application for certificate is refused.

Mr Alan Shun Chung Ping, SADPP of the Department of Justice, for the Respondent

Mr. Gerard McCoy, Senior Counsel leading Miss Jamine Yu, Counsel instructed by Messrs T.C. Foo & Co.,  for the Appellant