Attorney General v. Wong Kwai Fun and Another

CACC000516/1988

BETWEEN

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Coram: Silke, V.-P., Penlington, J.A. & Hopkinson, J.

Date of Hearing: 9 April 1989

Date of Judgment: 9 April 1989

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J U D G M E N T

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Silke, V.P.:

1. Wong Kwai Fun and Wong Kwei Keung came up for trial before His Honour Judge Evans in the District Court on a single charge of blackmail to which they pleaded not guilty. On 3rd December 1987 they were acquitted, the trial judge finding there was no case for them to answer. The charge concerned incidents which occurred in February 1987.

2. The Attorney General then applied through the Senior Assistant Crown Prosecutor to the judge under the provision of section 84 of the District Court Ordinance to state a case.

3. The prosecution had in the course of the trial sought to introduce into evidence certain tape recordings. They wished to identify voices on those tapes alleged to be those of the Respondents. The judge refused to admit evidence of identification.

The question of law which this Court was asked to determine is set out in the Case, which took about a year to perfect, as being:

"(1) Did I err in law in holding that the evidence that the prosecution proposed to call to the effect that:

(a) a witness was familiar with the 1st or 2nd Respondent as the case may Respondent:

(b) that he had listened to the tape recordings that had been tendered by the prosecution and

(c) that in his opinion the voice of the call of caller 'A' was that of the 2nd Respondent or that the voice of caller 'B' was that of the 1st Respondent as the case may was inadmissible to prove the identity of the callers."

4. Section 7 of the Legal Officer Ordinance, Cap.37 empowers the Attorney General to authorize any legal officer to discharge the rights and duties which the Attorney General is by law or by any applicable enactment entitled to exercise or required to discharge.

5. One of those rights is that contained in s.84 of the District Court Ordinance.

6. The authorization of the Attorney General is published in the Gazette.

7. By Gazette Notification 3176/83 the Law Officer performing the duties of Crown Prosecutor: (item 1 and the First Schedule) and the person holding the office of Senior Assistant Crown Prosecutor or Assistant Crown Prosecutor (item 4 and the Fourth Schedule) were signified as being authorised to apply to a District Judge to state a case.

8. Gazette Notification 1818/86 altered the terms of the 1983 authorization and, in addition, cancelled all authorizations previous to itself. Under it the provisions in relation to the Crown Prosecutor remained the same but those relating to the Senior Assistant Crown Prosecutor did not. The person holding that office remained authorized to apply to a Magistrate to state a case (item 5 and the Fifth Schedule) but the Deputy Crown Prosecutor (item 4 and the Fourth Schedule) was signified as the person to make application to a judge of the District Court.

9. Mr Cross very properly has in formed us that the application to Judge Evans was, by an oversight, not made by a person authorized to do so.

10. The consequence is that the present proceedings are not validly instituted and this Court therefore lacks jurisdiction.

11. As Mr. Cross has pointed out there is, within the provisions of section 84, an entitlement for this Court if it sees fit to extend the time in relation to applications such as this which normally should be made with in seven days. However Mr. Cross, and again very properly, does not seek in this instance because of the considerable lapse time since the trial and acquittal to ask this Court to exercise its discretion.

12. In those circumstances, the application is dismissed for want of jurisdiction

Representation:

I.G.Cross, Esq. & W.S. Cheung for Crown/Appellant

G.J.X. McCoy, Esq. (C.K Mok & Co.) for 1st Respondent

Gary Plowman, Esq. (C.K. MoK & Co.) for 2nd Respondent