Attorney General v. Wong Ho Ying and Others

IN THE HIGH COURT
MAGISTRACY APPEAL

1987 NO. 680
(Criminal)

BETWEEN:

ATTORNEY GENERAL

AND

(1)  WONG HO- YING
(2)  CHAN MEI-KUEN
(3)  WONG HIU-TING
(4)  SO TAK-PUN
(5)  YEUNG SIU-YIN

Coram: Roberts, C.J.

Date: 1^st September, 1987.

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D E C I S I O N

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Roberts, C.J.

1. This is a Case Stated by a Principal Magistrate at San Po Kong Magistracy at the request of the Attorney General under Section 105 of the Magistrates Ordinance.

2. The respondents were charged with being in possession of a dangerous drug for the purpose of unlawful trafficking, contrary to section 7 of the Dangerous Drugs Ordinance (Cap.134) and with possession of an opium pipe contrary to section 36 of Cap.134.

3. The maximum penalty prescribed by section 7 is life imprisonment on indictment and three years on summary conviction. The maximum sentence under section 36 is three years' imprisonment. The respondents were therefore facing serious charges. Indeed, it was alleged by the prosecutor that 1.5 kilogrammes of raw opium were involved.

4. The offences were said to have taken place on 17th July, 1987.

5. On 20th July, the respondents were brought before the Principal Magistrate; the charges were read and explained to them but no plea was taken. Four of the respondents were represented at that hearing.

6. The prosecutor then sought and obtained an adjournment of 7 days for further enquiries and for a report to be obtained from the Government Chemist. Two of the respondents were remanded in custody and the other three were granted bail.

7. On 27th July, the prosecutor asked for a further adjournment of 14 days for a Government Chemist's Certificate to be obtained.

8. The two respondents who were in custody objected to a further adjournment. The other three respondents who were not legally represented said that they left the matter entirely to the principal Magistrate.

9. The Principal Magistrate refused any further adjournment in view of the absence of consent by the respondents and for a number of other reasons which were set out in the Case Stated.

10. Having refused the adjournment, the Principal Magistrate asked the prosecutor if he wished the case to be set down for trial but was informed that he did not.

11. By virtue of section 94A, of the Magistrates Ordinance, an indictable offence, which this was, may not be dealt with summarily unless the consent of the prosecutor has been obtained.

12. The Principal Magistrate then asked the prosecutor if he wanted a return date to be set for committal proceedings but was informed by the prosecutor that he was not in a position to decide. The Principal Magistrate thereupon struck out the case for want of prosecution, though it is conceded by the Crown that these were "committal proceedings" within the meaning of the Magistrates Ordinance, the Crown having refused to consent to the charges being dealt with in a summary manner, and that by virtue of section 79 of the Magistrates Ordinance, a magistrate enjoys a discretion as to whether or not to adjourn such proceedings.

13. The Principal Magistrate justifies her opinion that a further adjournment was not necessary or desirable, which is the phrase used in section 79(1), on various grounds –

(a) An adjournment of 7 days had already been granted.

(b) Nobody should be charged and brought to court merely for the purpose of remand, with no plea being taken and no date being fixed for trial.

(c) It is an abuse of process for the prosecution to seek a remand so that evidence might be collected against a defendant.

(d) The prosecution, if uncertain as to whether to proceed by way of a summary trial, transfer or committal, until a Government Chemist's Certificate was available, should have waited for this before charging the respondents and bringing them to court.

(e) The adjournment on 20th July and. that sought on 27th July were unnecessary and avoidable if the prosecution had followed the proper course.

14. As has been observed in a number of cases, the exercise of discretion by a judge or magistrate is not a matter with which an appellate court will lightly interfere.

15. One of the most quoted Hong Kong cases on this subject is The Attorney General v. IP Chong-kwan and Others(1).

16. The following two passages from the judgment of Huggins, J.A. have been referred to in argument this morning –

(a) "What is submitted before us is that the learned judge wrongly exercised his discretion in refusing an adjournment. It is well-established that an exercise of the discretion is a matter of law which can be challenged on appeal, but equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice.”

(b) "I think that the learned judge was wrong and that injustice did result from the course which he took. Justice must be done to the Crown as well as to the defence, although there is no doubt that the court will scrutinize the proceedings with particular care where the defendant may be prejudiced: but justice must be done to both sides. In my judgment justice was not done here and the appeal must be allowed. "

17. In The Attorney General v. Fung Si-tsou(2), when delivering the judgment of the. court, I commented as follows -

"We have been referred to a number of Hong Kong authorities dealing with the correct approach which an appellate court should adopt, when considering the exercise of its discretion by a lower court. In R. v. LEUNG Lai-por and Others [1978 H.K.L.R. 202], Huggins, J. delivering the judgment of the Full Court, commented as follows -

'We still have to decide whether the judge, although he duly exercised his discretion, came to a manifestly wrong conclusion. It is not enough that it was a conclusion which another judge might not have reached: before we substitute our own discretion we must be persuaded that it was one which no reasonable judge could have reached in the circumstances.' "

18. The reasons which the Principal Magistrate gives for refusing to grant any adjournment and for dismissing the charge seem to me to be open to criticism in some respects.

19. The Principal Magistrate must have realized that a proscution for possession of dangerous drugs cannot proceed without a Certificate from the Government Chemist as to the quantity and content of the drugs involved.

20. She should equally have realized that the Government Chemist is an independent professional organization, which is not under the control of the prosecutor. He can, no doubt, ask for reports to be rendered speedily but is in no position to insist on them.

21. Further, the Principal Magistrate appears in one important respect to be under a misapprehension as to the system within which the courts are working.

22. There is no rule, and indeed there could not be, that the prosecutor must not charge a defendant and bring him before the court, until all the evidence is available to the prosecution. Any experience of the courts will show that in a considerable number of cases, the police would be guilty of a serious dereliction of their duty if they did not bring defendants before the court at an early stage while evidence was still being collected.

23. Insofar as the Principal Magistrate was influenced by that factor, she was, in my view, in error.

24. It is not suggested for a moment that the court is powerless if it is satisfied that a prosecutor has acted unfairly, or in an excusably slow way, or to the prejudice of a defendant, to intervene, to refuse adjournments or to dismiss the case if the pros2cution is unwilling to proceed, or is not ready to do so.

25. The usual practice of magistrates faced with what they regard as unreasonable delays is to do what I suggest the Principal Magistrate should have done in this case, that is to say, a date for trial, or a return date as the case may be, should be fixed and the prosecution warned that if they were not in a position to proceed on that date there was a risk that the proceedings would be discharged.

26. Magistrates must bear in mind that the power to dismiss a case for want of prosecution is one that should be exercised with care, since its effect is to discharge an accused person in that trial.

27. The view which the Principal Magistrate took might have had more justification if the respondents had already been in custody for many weeks or if repeated requests for adjournment had been made.

28. This, however, was only the second request, for an adjournment. The offence, indeed, had only taken place on 17th July - i.e. 10 days previously - and the second adjournment was sought for a purpose which the Principal Magistrate must have known was a proper one.

29. I have no hesitation in coming to the conclusion that the Principal Magistrate was palpably wrong to refuse a further adjournment for the purpose sought and that she was wrong to dismiss the case. I think that she exercised her discretion in a manner which no reasonable magistrate would have done in the circumstances, to quote the test laid down in R. v. Leung(3) .

30. There are two questions posed by the Case Stated -

"(a) Whether I erred in law in exercising my discretion as I did on the 27th July, 19b7 in refusing the Appellant's application for a further adjournment of 14 days; and

(b) Whether I erred in law in striking the Appellant's case out for want of prosecution when the Appellant refused to proceed. "

31. The answer to the first question is "No" in the form in which that question is posed. By virtue of section 79(1), it is open to a magistrate to defer, or to adjourn, committal proceedings for a maximum of 8 days unless the accused and prosecutor consent to a longer remand. In the absence of such consent from the defendant, the maximum period of adjournment was 8 days.

32. The answer, for the reasons that I have given above, to the second question is "Yes". The Principal Magistrate did err in law in striking the appellant's case out for want of prosecution.

33. The case will, therefore, be remitted to San Po Kong Magistracy with a direction that the charge be put to the respondents and a date of hearing be fixed.

Mr. I.G. Cross, Ag. Sen. Asst. Crown Prosecutor with Mr. W.S. Cheung, Crown Counsel, for the Appellant/Attorney General.

Mr. M. Poll (D.L.A.) for Respondents D.2-D.5

D.1 - not appearing nor represented.

(1) [1979] H.K.L.R. 141

(2) [1986] Crim. App. No.401

(3)  [1978] H.K.L.R. 202