MAGISTRACY APPEAL NO. 521 OF 2008
(ON APPEAL FROM KCS NO. 33295 OF 2007)
(1) The House of Lords in the case of Boddington v British Transport Police [1999] 2 AC 143 held that a magistrates’ court in England and Wales had the power to deal with challenges to the validity of legislation. Lord Irvine of Lairg LC cited the case of R v Wicks [1998] AC 92 and quoted Lord Nicholls of Birkenhead (at 106) who said : ‘the proper starting point’ must be a presumption that ‘an accused should be able to challenge, on any ground, the lawfulness of an order, the breach of which constitutes his alleged criminal offence’. Lord Steyn stated (165 to 176), in robust terms, the fact that defendants, in having to take what was suggested in the Divisional Court in the same case, namely an application to proceed by way of judicial review were put at a singular disadvantage. He concluded (at 173G), ‘[t]here is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him a defence. Sometimes his challenge may be defeated by special statutory provisions … The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural validity of a byelaw is raised, the trial court must rule on it.’ Accordingly, the first question for the consideration of this Honourable Court is whether the magistrate was correct in holding that he had jurisdiction to rule on the validity and/or constitutionality of the section.
(2) If the magistrate did have the jurisdiction referred to in paragraph (1) above, the second question for the consideration of this Honourable Court is whether the magistrate had jurisdiction to dismiss the summons as per Bokhary PJ at paragraph51 (920J to 921C) in the case of Secretary for Justice v YAU Yuk-lung (supra).
(3) If the magistrate did not have the jurisdiction referred to in paragraph (2) above, the third question for the consideration of this Honourable Court is whether the magistrate otherwise failed to follow the procedure as set out in Secretary for Justice v YAU Yuk-lung (supra).
(4) The fourth question for the consideration of this Honourable Court is whether the magistrate was in error in holding that the case of Attorney General v Tsang Wai Keung (supra) no longer represented good law for the reasons set out at length above and was no longer binding upon him.
(5) If the case of Attorney General v Tsang Wai Keung (supra) is no longer binding upon the magistrate, the fifth question for the consideration of this Honourable Court is whether the magistrate was in error in holding that the section and its application had such an adverse effect upon the fairness of the trial that the rights of the respondent under Article 11(2)(g) of the BORO could not be given full and due weight, particularly when judicial opinion has accepted to a degree that the giving of the information demanded is, in effect an involuntary admission of guilt to an underlying offence.
(6) If the section does have the effect as set out in paragraph (5) above, the sixth question for the consideration of this Honourable Court is whether the magistrate was in error in holding that, thereby, the section ceased to have any effect.
(7) If the magistrate was in error as set out in paragraph (6) above, the seventh question for the consideration of this Honourable Court is whether the magistrate was in error in holding that the section is not a proportionate response to a perceived social problem, considering that no evidence was submitted to the magistrate of the scale and extent of that perceived problem, that there is, in the section, no distinction drawn between minor and more serious offences, that the section provides for imprisonment as a punishment in addition to a fine and discretionary disqualification from holding or obtaining a licence to drive, that the section allows for a question to be put other than who was the driver at the material time and that the section allows for the demand for information to be made up to six months after the commission of an alleged offence (the magistrate accepts that he was in error in his verdict in asserting that, in England and Wales, the demand for information can only be made up to twenty-eight days after the commission of the alleged offence; such time limit refers to the period within which a response is to be given by the registered keeper of the vehicle).