Attorney General v. Chiu Kam-hung
Read the full judgment text of CACC 503/1978 on BabelCite. This Court of Appeal judgment.
1. This appeal comes before the court by way of case stated on appeal by the Attorney General against the order of a magistrate dismissing an information. That information was laid under reg. 8 of the Road Traffic (Roads and Signs) Regulations alleging that the Respondent
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CACC000503/1978
----------------- Coram: Huggins, J.A. Date of Judgment: 23rd June, 1978. ----------------- JUDGMENT ----------------- 1. This appeal comes before the court by way of case stated on appeal by the Attorney General against the order of a magistrate dismissing an information. That information was laid under reg. 8 of the Road Traffic (Roads and Signs) Regulations alleging that the Respondent
The Respondent appeared in answer to a summons, but the learned magistrate declined to call upon him to plead to the charge. The magistrate took the view that the charge was defective in that it lacked any indication of the particular traffic sign said to have been disobeyed. He held that not to be a fundamental defect but one which could be cured by amendment and, as I understand it, he directed that the prosecution should provide particulars then and there. This they were unable to do and again it is implicit that they sought an adjournment. An adjournment was refused because it would be unfair to the Defendant and it was then that the information was dismissed. 2. At first sight there would appear to be no ground upon which this court could properly interfere with the exercise by the learned magistrate of his discretion. It is, however, argued that the proceedings were not instituted as an ordinary criminal prosecution but under Part II of the Fixed Penalty (Criminal Proceedings) Ordinance, the offence charged being included as Item 53 in the Schedule thereto. Therefore, the argument continues, the quantum of the sentence to be imposed in the event of a conviction was never in issue, for, whatever the sign which was disobeyed, there could only be a fine of the $100 prescribed and the particulars omitted could have no relevance unless the Defendant pleaded Not guilty: under the practice of the magistrates' courts whenever a plea of Not guilty is entered an adjournment invariably follows and the particulars would have been supplied before the eventual trial. In passing I would remark that if an adjournment invariably follows upon a plea of Not guilty that is a gross injustice, for it puts a premium on the exercise by the Defendant of his undoubted right to insist that a criminal charge be proved against him. More important for the purposes of this case, the contention that the fixed penalty prescribed in the Schedule was the only sentence which could be imposed cannot be sustained. The fixed penalty can be paid either upon service of the notice prescribed by section 3(1) or upon service of the notice prescribed by section 3(3) and before the institution of a prosecution for the offence. After the institution of proceedings and not less than 72 hours before the hearing date the fixed penalty may still be paid upon fulfilment of specified conditions, and the proceedings thereupon terminate. However, when proceedings are instituted they are not a "prosecution brought pursuant to the Fixed Penalty (Criminal Proceedings) Ordinance" as suggested by the Case Stated but an ordinary prosecution governed by the provisions of the Magistrates Ordinance. That such was the intention is clear in particular from section 10(1)(b) of the Fixed Penalty (Criminal Proceedings) Ordinance, which refers not to the penalty but to "the fine imposed". It follows that the reference to that Ordinance in the charge was irrelevant and should not have been included. The magistrate's discretion as to sentence was no different because a notice or notices were served under the Fixed Penalty (Criminal Proceedings) Ordinance than it would have been had no such notice or notices been served. 3. The position, therefore, is this. The Crown concedes that the information was defective and that the words of section 27 of the Magistrates Ordinance were not to be given their full and literal meaning so as to require the ignoring of a defect which might prejudice the Defendant. The prosecutor did not refuse to supply such particulars as would have remedied the deficiency (as in Robertson v Rosenberg (1951) 115 J.P. 128) but was unable to do so without an adjournment. It has been submitted that the Defendant should have been called upon to plead to the charge as it stood, because it was not fundamentally defective and the objection taken was not taken by the Defendant himself but by the court: the magistrate acted precipitately in insisting on the giving of particulars before a plea was taken, as the defect could be waived. Two things must be said as to that. First, the Defendant was not professionally represented and it was not improper for the magistrate to take a point on his behalf which might have been taken by the Defendant had he been professionally advised. Secondly, the argument was based upon the assertion that if the Defendant had pleaded Guilty sentence could have been passed there and then. With respect that is only a half truth: sentence could indeed have been passed, but probably it could not properly have been passed, because the prosecution was not in a position to tell the court precisely the nature of the offence so that a proper assessment of the sentence could be made. It can thus be seen that an adjournment would have been necessary whether the Defendant pleaded Guilty or Not guilty. The learned magistrate thought that would be unfair. Counsel argued that the magistrate thereby refused the adjournment for a reason "related to the system and not to the individual defendant". In the circumstances that is a distinction without a difference because the system affects the individual defendant. Not only is it impossible for me to say that the magistrate was wrong but I think he was entirely right. I was told that the Respondent went to court intending to plead Guilty. That does not appear from the Case Stated and is, in any event, irrelevant. 4. What I have just said must be understood in the context of the present case. I am not saying that it would necessarily be wrong to take a plea where an information contained a defect similar to that here and the Defendant, properly advised, waived the defect. If a plea were taken, of course, the difficulty as to sentence would still remain. The parties might overcome the difficulty by agreeing the facts. Failing that, one of the parties might apply for an adjournment and the magistrate would have to exercise his discretion whether to grant the application. If he refused an adjournment, it might be that he would then find himself compelled to use his powers under section 36 of the Magistrates Ordinance. 5. This appeal has been brought in an attempt to force the court to bow to that modern Frankenstein, the computer. I am told that in such cases informations and summonses are produced by a computer from the details contained in the notice under section 3(1) of the Fixed Penalty (Criminal Proceedings) Ordinance. It appears that in order to avoid inconvenience and expense prosecutors are then sent into court without proper instructions: the only details of the offence they are given are those contained in the information and summons. It seems to be suggested that to insist upon the preparation of a proper brief would defeat the objects of the Fixed Penalty (Criminal Proceedings) Ordinance. That is an Ordinance
The real purpose of the Ordinance as I see it is to reduce the number of cases coming before, and having to be tried by, the courts and not to alter the manner in which cases which do reach the courts are to be disposed of. With that in mind the Legislature fixed penalties at a level which would encourage offenders to submit to the judgment of the Executive rather than to the judgment of the courts. Offenders who, for one reason or another, wish to be tried by the courts (as well as alleged offenders who wish to deny the allegations made against them) are not deprived of their right to trial in the normal way. One reason why an offender may wish to be tried by the courts is that, although he admits the offence, he wishes to plead in mitigation of sentence, for it should not be assumed that the appropriate sentence will in every case be a fine equal to the fixed penalty prescribed for the offence. The prosecution must, therefore, be equipped to assist the magistrate not only by providing particulars which will enable the court and the Defendant to know precisely the charge to which the Defendant will be called upon to plead but also particulars which will enable the magistrate to assess the proper sentence. This requirement does not defeat the purpose of the Ordinance, because every defendant who ignores the 72-hour ultimatum contained in section 9 of the Ordinance has effectively escaped already the net cast by the Ordinance. The benefit of the Ordinance lies in the fact that such defendants constitute only a small proportion of the total number of persons served with notices under section 3(1). The Crown is now seeking a further benefit for which no warrant appears in the Ordinance. 6. The questions posed for the opinion of the court are as follows:
The first of those questions is not one which arises in the present case, because no one contended that the information was fundamentally defective. It is therefore not necessary for me to answer it directly. It follows that the second question must be amended. It was, in any event, drafted in a form which would be more appropriate to a question directed to an academy of law than to a court of error. In truth it contains two different questions, which have been rolled into one. I shall take it as though it had been put in the following form:
My answer to each of those questions is "No". 7. The appeal is dismissed. 23rd June 1978. Representation: |