Chan Kuen-ming v. The Queen

CACC001065/1982

BETWEEN:

Coram: Roberts, C. J.

Date: 18th January, 1983.

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JUDGMENT

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1. Mr. CHAN Kuen-ming was conditionally discharged by a magistrate under section 36(1)(b) of the Magistrates Ordinance, on his entering into a recognizance in the sum of $200 to be of good behaviour for 18 months. Mr. Chan appeals against this Order.

2. The appellant was charged with blackmail. However, it emerged during the evidence that such threats as may have been made by the appellant had been uttered during a dispute between the appellant and his father over money said to have been owed to the appellant by the father. As the magistrate found "it was in the nature of a family dispute between the father and son who just did not get on".

3. In his Statement of Findings the magistrate states that he dismissed the charge (although this was not apparent from the record) and that, consequently, since the charge had not been proved, it was not propel for him to make an order under section 36(1)(b) of the Magistrates Ordinance for a conditional discharge of the appellant.

4. However, he raised in his Statement of Findings the possibility that it might have been open to him to substitute a binding over order, either under section 61 of the magistrates Ordinance or under the Justices of the Peace Act 1361, which is the part of the law of Hong Kong by virtue of the Application of English Law Ordinance.

5. Counsel for the appellant drew my attention to R. v. Aubrey-Fletcher ⁽¹⁾   in which Lord Parker, C.J., delivering the judgment of the Queen's Bench Divisional Court, stated that section 91 of the Magistrates Courts Act 1952, which is in similar terms to section 61 of the Magistrates Ordinance, can only be used where a complaint has been laid under that section and has been heard to its conclusion. That condition was not satisfied in this case.

6. The Chief Justice also considers the circumstances under which a binding over order can be made under the Act of 1361. The test which he prescribes is that there must be an indication by the magistrate that he has formed a tentative view that the evidence so far adduced is such as to cause him to think that there might be a breach of peace in the future.

7. The magistrate has s not made any finding of this nature. indeed, as Counsel for the Crown properly concedes, he thought that this was a family dispute and, although he does not say this in terms, it is reasonable to infer that he did not think a breach of the peace would be likely to occur in the future.

8. Thus, the essential condition for the making of an order under the 1361 Act is not present.

9. I therefore quash the order made for the conditional discharge of the appellant under section 36 of the Magistrates Ordinance but make no other order in substitution for it.

(1)     [1969] 2 All E.R. 846

Representation:

B. Chau (D.L.A.) for Appellant

A. P. Duckett, Crown Counsel, for Respondent.