Attorney General v. Wong Chi Keung and Others
Read the full judgment text of CACC 1105/1974 on BabelCite. This Court of Appeal judgment.
1. The six respondents were, between them, charged with nine offences. All the offences involved assault and with one exception assault occasioning actual bodily harm. It is common ground that all are indictable offences and that more than six months had elapsed between the date of the alleged offences and that of the preferment of the charges.
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CACC001105/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 1105 OF 1974 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 28th February, 1975. ----------------- JUDGMENT ----------------- 1. The six respondents were, between them, charged with nine offences. All the offences involved assault and with one exception assault occasioning actual bodily harm. It is common ground that all are indictable offences and that more than six months had elapsed between the date of the alleged offences and that of the preferment of the charges. 2. The learned magistrate dismissed each of the nine informations on the ground that he lacked jurisdiction to deal summarily with the offences charged therein. Having now been requested by the Attorney General, the appellant, to state a case for appeal to this court, the learned magistrate has concluded an admirably lucid case stated with the following question:
3. It will be convenient to set out s.26 of the Magistrates Ordinance (Cap. 227) and the relevant portion of s.93 of that Ordinance. Section 26 reads as follows:
Section 93(a) is in the following terms:
4. In the course of the very helpful argument before me Mr. Carolan, for the Crown, referred to the history of somewhat similar legislation in the United Kingdom and in Ireland and to certain decided cases in Ireland and in Northern Ireland. Helpful as that exposition was in the course of argument, I do not find it necessary to advert to it here because, in the last analysis the matter is one of the construction of the relevant provisions of the Magistrates Ordinance. 5. The reason that the learned magistrate dismissed the informations was that he considered that he had no jurisdiction to hear and determine them summarily in view of the fact that the period between the date of the preferring of the nine informations, namely 23rd July 1974, and the date specified in each of the nine informations as the date of the commission of the offences therein respectively charged, namely 19th March 1973, exceeded six months. 6. At once it is apparent that the learned magistrate's mind was directed to something which had occurred before the time at which he had decided, with the consent of the prosecution under s.94A of the Magistrates Ordinance, to deal with these offences, prima facie indictable offences. in a summary manner. This leads to consideration of the wording of s.93(a) of the Ordinance which provides that when and so soon as the magistrate assumes the power to deal with the offence summarily, the procedure shall be the same from and after that period as if the offence were an offence punishable on summary conviction and not on indictment. This provision is preceded by the direction that the procedure shall, until the magistrate assumes the power to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence. It is common ground that there is no limitation upon the time within which the Crown may charge an accused person in the case of an indictable offence. That being so, it must follow that the procedure to be adopted, until such time as the magistrate assumes the power to deal with the offence summarily, will be the same as if the offence were to be dealt with throughout as an indictable offence and this must include the absence of a time limit within which the information may be preferred. As it seems to me, as a matter of construction of s.93 (a) alone, the learned magistrate was not concerned with what had happened before he assumed the power to deal with the informations summarily and the fact that those informations were laid more than six months after the commission of the offences, was in no way relevant. 7. But s.93(a) does not stand alone. The construction of s.26 leads to a similar result. For ease of reference I set out that section again:
8. In that section the time limit is expressed to refer to any case of an offence "other than an indictable offence" and the section finds its place in Part II of the Ordinance which is headed "Procedure In Respect Of Summary Offences". Mr. Patrick Yu, for the respondents, argues that these informations, not being considered proper for trial upon indictment, became at law and on the facts, cases for summary trial "as summary offences". Whilst it is patent that they became cases for summary trial, it is not the case that they became so "as summary offences". The offences are indictable offences and they remain indictable offences despite any decision that they be tried in a summary manner, so that when s.26 excepts indictable offences that exception embraces all such offences whether tried upon indictment or tried summarily. 9. Support for this view is to be found in the definition of "indictable offence" in s.2 of the Ordinance which runs:
10. The reference is to any crime or offence for which a magistrate is "authorised or empowered or required" to commit the accused person to prison for trial before the court - which can only mean the Supreme Court. Now a magistrate is "required" to commit an accused for trial in the case of the more serious offences such as murder and rape. He is "authorised or empowered" - terms which appear to me to be synonymous in their present context - to commit for trial in the case of less serious indictable offences but likewise he is authorised or empowered, given the consent of the prosecution, to deal summarily with these less serious offences so that I am unable to agree with Mr. Yu that the definition does not include indictable offences triable summarily and is restricted to offences which are in the course of being brought, via the magistrate, to the Supreme Court for trial. 11. As I see it even if the words "other than an indictable offence" had been omitted from s.26 the time limit laid down by that section could not apply to indictable offences for the section occurs in Part II of the Ordinance headed "Procedure In Respect Of Summary Offences" and the offences with which we are concerned are not summary offences but indictable offences, the fact that they are triable summarily not robbing them of that character. However the words do appear in s.26 thus making assurance doubly sure. 12. For all these reasons the question posed by the learned magistrate must be answered in the negative and the informations are remitted to him with the direction to continue the trials upon them. Representation: Carolan, S.C.C., for Appellant P. Yu (Deacons) for Respondent. |
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