Choi Kwan Sing v. The Queen

CACC000505/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 505 OF 1968

(South Kowloon Magistracy, Case No.14538 of 1968)

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Coram: Briggs J.

Date of Judgment: 9 October 1968

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JUDGMENT

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1. This is an appeal against an order made by a magistrate on August 29th. The appellant who was charged with two offences under the Dangerous Drugs Ordinance was brought before the magistrate on that date when an application for bail was made on his behalf by his solicitor.

2. This was refused. The magistrate fixed the hearing for September 3rd although the solicitor appearing on the appellant's behalf asked for another and later date because he had other commitments on September 3rd. However the magistrate fixed the trial for September 3rd and the solicitor asked to withdraw from the case.

3. On the 3rd the appellant came up for trial when he was unrepresented. He again asked for an adjournment so he could have the services of the particular solicitor who had originally appeared for him. Accordingly the magistrate adjourned the case until September 10th a date chosen by the appellant himself. The appellant had been admitted to bail by a judge of the Supreme Court on September 2nd. This appeal is against the order made by the magistrate on August 29th.

4. The appeal came before me on October 4th 1968 when I was told that the trial of the appellant was part heard. So it would appear that the result of this appeal may be only of academic interest. Even if allowed it would be non effective. The more so perhaps as the magistrate did adjourn the case on September 3rd as requested.

5. However, Mr. Addison for the Crown raised an interesting point: which is that there is under our law no right of appeal against such an order. I will say at once that I agree with him. In consequence I dismissed the appeal as being incompetent.

6. The appellant appealed under section 113(1) of the Magistrates Ordinance. This gives a right of appeal to "any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connexion with any offence ...." The magistrate in making the order complained of was acting under section 20(1) of the same Ordinance. This section is concerned with the adjournment of a trial and the procedure thereon.

7. An order made under that section is an order preliminary to the trial. And it is not an order "in respect of or in connexion with any offence" in the words of section 113(1).

8. In Chan Foo v. R.⁽¹⁾ it was held that an appeal by way of case stated under section 105 of the Magistrates Ordinance does not lie against a decision on a preliminary objection. This case was followed in A.G. v. Man Chi Kin⁽²⁾.

9. Mr. Addison compared the position of an appeal under section 105 and an appeal under section 113. Similar words are used in the two sections but the wording of section 105 is wider than that of the latter section. The words in section 105 are "any conviction, order, determination or other proceeding".

10. R. v. The Magistrate Kowloon⁽³⁾ decided that the words "determination or other proceeding" in the section which is now 105 must be construed ejusdem generis with the words "conviction or order" preceeding them.

11. Mr. Addison argued that the words of section 113 must likewise be construed ejusdem generis. The word "order" in that section covers inter alia an order for probation, disqualification from holding a driving licence, an order for probation and similar orders. That is to say it covers all orders which are made, in the words of the section, "in connexion with the offence". It does not apply to orders in connexion with the trial of that offence.

12. This I think is the correct interpretation. The proper remedy in this case would have been certiorari. As it is the appeal must be dismissed.

Representation:

Appellant in person.

Addison C.C. for Crown/Respondent.

(1) (1958) H.K.L.R. 349.

(2) (1964) H.K.L.R. 482.

(3) (1959) H.K.L.R. 91 ...(illegible)