The Attorney General v. Chan Chit Yin
Read the full judgment text of CACC 480/1971 on BabelCite. This Court of Appeal judgment was delivered on 22 December 1971.
1. This appeal by the Attorney General against a decision of a magistrate was referred to the Full Court by order of the Chief Justice dated 9th August, 1971. According to the Case Stated that decision, made in the course of proceedings against the Respondent under the Road Traffic (Roads and Signs) Regulations, required the Appellant to pay to the Respondent costs fixed at $40. Since it is further stated that the informant was "LAM Shun-put S.I.P." (which initials the learned magistrate, no dou
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CACC000480/1971 \IN THE SUPREME COURT OF HONG KONG?? (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 480 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Huggins and Pickering, JJ. Date of Judgment: 22 December 1971 ----------------- JUDGMENT ----------------- Huggins, J.: 1. This appeal by the Attorney General against a decision of a magistrate was referred to the Full Court by order of the Chief Justice dated 9th August, 1971. According to the Case Stated that decision, made in the course of proceedings against the Respondent under the Road Traffic (Roads and Signs) Regulations, required the Appellant to pay to the Respondent costs fixed at $40. Since it is further stated that the informant was "LAM Shun-put S.I.P." (which initials the learned magistrate, no doubt correctly, interpreted as "Senior Inspector or Police"), we must assume that by virtue of proviso (a) to s.12 of the Magistrates Ordinance Mr. Lam laid the Information in his capacity of a police officer: if it were otherwise his rank was immaterial and should have formed no part of the title to the proceedings. By the same proviso the information was deemed to have been laid on behalf of the Appellant. Proviso (b) then says
There was no reason why anyone should have thought that such member or public servant should be so deemed, since he would be a party in fact, and it must be assumed that the draftsman intended to say "such member or public servant shall be deemed not to be a party". It follows that the Appellant was deemed to be the informant and any order for costs against the informant would be an order against him. 2. What happened was this. On the day appointed for the hearing of the summons the Respondent appeared and pleaded not guilty. The prosecution was represented by an Inspector of Police, who told the learned magistrate that "the prosecution witness" (probably the original informant) was absent, for which reason the Prosecution sought an adjournment. The Respondent having opposed the application on the ground that he would suffer hardship, an adjournment was granted but it was further ordered that the Respondent be paid the sum of $40 costs. That order was purportedly made under s.18(2) of the Magistrates Ordinance, the material part of which reads:
3. The questions of law which the learned magistrate was apparently asked to pose for the opinion of the Court were these:
Counsel for the Appellant has not argued the 3rd of these questions and it has not been necessary for us to consider it. 4. It will be convenient to turn first to the 4th question. We have already seen that by virtue of s.12 the Appellant was deemed to be the informant and, since it is not suggested he was present in person, the only issue is whether he appeared "by his counsel". The learned magistrate held that he did not so appear, placing reliance upon the definition of "counsel" in s.2. The relevant parts of that section are:
The reasoning of the learned magistrate, which has been adopted on behalf of the Respondent, was that the Inspector who represented the Appellant was not a barrister or solicitor and, although in some contexts he might properly be described as an advocate, in the context of the definition "advocate" clearly connoted a person with a professional qualification in law. We do not think it is necessary to question the learned magistrate's interpretation of the definition: in our view the context of s.18(2) requires a different interpretation. We are forced to this conclusion by s.13, which provides:
It is by virtue of this section that in the overwhelming majority of the cases appearing before the magistrates in the Colony the prosecution is conducted by a public prosecutor. If the view of the learned magistrate were right s.13 would be completely nullified, because in every case where a public prosecutor appointed under that section appeared a defendant who appeared voluntarily in obedience to a summons could make application under s.18(2) to have the information dismissed or the hearing adjourned. We think there can be no doubt that the intention of the Legislature was that s.18(2) should apply only in a case where no one was present who could lawfully conduct the prosecution. That necessarily requires us to interpret "counsel" in that sub-section as including a public prosecutor appointed under s.13. Accordingly the answer to the 4th question posed by the case stated is "No". 5. 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, s.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. However, it still remains to consider whether in the present case this condition precedent was fulfilled, because it has been submitted that the Inspector who appeared to conduct the prosecution was not a public prosecutor duly appointed under s.13. Before the learned magistrate his authority was never questioned, but counsel for the Respondent before us has submitted that the Inspector's authority has not been established. It is true that no evidence was called to prove his authority but the Court could see for itself that he was acting as a public prosecutor and proof that someone has acted as holder of a public office is evidence of his title to do so. This is an application of the maxim omnia praesumuntur rite et solemniter esse acta and numerous cases where the maxim has been applied will be found cited in Phipson on Evidence (11th ed.) 146 (328). The presumption is, of course, rebuttable, but no attempt was made before the magistrate or has been made before us to rebut the presumption that the Inspector had been authorised. We were told by counsel for the Respondent that in 1963 a general authority in writing was given under s.13 to every police officer of the rank of Inspector and above, but it is not necessary for us to have regard to this statement. There is no requirement that even a general authority shall be in writing, let alone that it should be notified in any way to the Court or to the public, and it would not be right for us to insist on something which the Legislature has not prescribed. It might, however, avoid any possible argument if, where this can conveniently be done, the granting of any general authority under s.13 were published in some way. Be that as it may, we see no reason to doubt the authority of the Inspector who appeared in this case and in our view the Appellant was duly represented by "counsel" within the meaning of s.18(2). There was therefore no power to make an order for payment of costs under that sub-section. 6. 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 granting 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(1) was wrongly decided, but we will decide the matter if and when it becomes necessary so to do. 7. 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 s.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. 8. The appeal is allowed and the order for payment of costs is quashed. Representation: Duckett, S.C.C. for Appellant. Wei for Respondent. (1) Cr. App. 677 of 1970 |