The Attorney General v. Ho Yuen-kwong
Read the full judgment text of CACC 677/1970 on BabelCite. This Court of Appeal judgment was delivered on 11 June 1971.
1. At the magistrate's court at Kwun Tong on the 6th of October 1970, two charges were preferred by the Attorney General (hereinafter called the Appellant) against HO Yuen-kwong (hereinafter called the Respondent) under section 50(1)(a) of the Larceny Ordinance (Chapter 210) charging, for that he, the Respondent -
Cited by 5 cases
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CACC000677/1970 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 677 OF 1970 -----------------
----------------- Coram: Pickering, J. Date of Judgment: 11 June 1971 ----------------- DECISION ----------------- 1. At the magistrate's court at Kwun Tong on the 6th of October 1970, two charges were preferred by the Attorney General (hereinafter called the Appellant) against HO Yuen-kwong (hereinafter called the Respondent) under section 50(1)(a) of the Larceny Ordinance (Chapter 210) charging, for that he, the Respondent -
The Appellant by his Counsel from the Bar table informed the Court that there was a variance in each case between each of the said charges and the evidence about to be led in support thereof as to the time at which each of the offences was alleged to have been committed. It appearing to the learned magistrate that as a result of these variances, the Respondent had been misled, the magistrate adjourned the hearing of the charges to a future date on terms that the Appellant should pay $600 costs to the Respondent. A subsequent application by the Appellant for the review of this order as to costs was refused after argument by Mr. Wong of counsel on behalf of the Appellant and Mr. Jackson-Lipkin of counsel on behalf of the Respondent. 2. The appellant has now asked the learned magistrate to state and sign a case in order that the Appellant may appeal against the order for payment of $600 costs. Upon the appeal, the Crown was represented by Mr. Duckett, Senior Crown Counsel, but the court was without assistance from any counsel on the Respondent's side. The Respondent himself was present at the hearing of the appeal but had nothing to say. 3. Section 23 of the Magistrates Ordinance provides (in its material part) as follows:-
4. By virtue of section 2, "information" includes a charge. 5. Section 27 of the Magistrates Ordinance provides as follows:-
6. In his very carefully prepared Case Stated the learned Magistrate recognized that whereas both ss. 23 and 27 refer to a variance between a charge and the "evidence adduced" in support thereof, no evidence had actually been adduced in regard to the present charges the Appellant, by his Counsel, having informed the Court at the outset of the proceedings and before any evidence had been led of the variance between each of the charges and the evidence about to be led in support thereof. Thereafter the Magistrate quoted a volume of authority in support of the view that in the context of these charges there had been, for the purpose of ordering an adjournment, "evidence adduced". Mr. Duckett, for the Crown, did not seek to argue otherwise and, with characteristic fairness, said that it would not be proper for the Appellant to rely upon that argument. 7. It is apparent that the learned magistrate, being of the opinion that the Respondent was prejudiced by the variances as to dates contained in the two charges, was under a duty to grant an adjournment of the hearing for the purpose of enabling the defendant to reconsider his defence and that, under s. 23(2) that duty might be performed "on such terms as he may think fit". The question of law arising for this Court is whether or not that phrase included power in the present instance to order the Appellant to pay to the Respondent $600 as costs of the adjourn-ment. 8. Mr. Duckett presented in careful and interesting form the history of sections 23 and 27 of the Magistrates Ordinance tracing them from the English Summary Jurisdiction Act of 1848 through the Magistrates Ordinances of 1932 and 1949. If I do not refer to counsel's argument based on the historical background of the two sections at length, I do not wish that omission to be ascribed to any lack of appreciation of Mr. Duckett's industry in the matter. The fact is that the argument left me unpersuaded and in answer to a question Mr. Duckett fully agreed that in its development he was theorising when he suggested that the omission at certain dates and in certain sub-sections of the phrase "on such terms as he may think fit" and its inclusion at other dates indicated an intention on the part of the legislature that the "terms" referred to were limited to such matters as bail and the securing of the attendance of an accused upon any adjourned hearing. 9. With the utmost respect to that theory I do not consider that historical research is a necessary prerequisite to the interpretation of the phrase under discussion. As I see it, the issue is far loss complicated and is simply that of the interpretation to be placed upon a phrase which is prima facie a straightforward phrase, that is to say, the phrase "on such terms as he may think fit" in section 23 subsection (2) of the Ordinance. Mr. Duckett urged that because the sub-section said "it shall be lawful for the magistrate on such terms as he may think fit, to adjourn the hearing of the case to some future day ......" and thereafter went on to empower the magistrate to commit the defendant to prison or to such other custody as he may think fit, or to discharge him on entering into a recognizance, these were the matters contemplated by the phrase "on such terms as he may think fit" which was restricted to such matters as allowing bail or securing the attendance of a defendant upon the adjourned hearing. 10. I see no warrant for this restricted interpretation. If the words "on such terms as he may think fit" in section 23(2) of the Magistrates Ordinance relate only to what follows in that sub-section, they are tautologous to the point of redundancy and the presumption must be against an intention on the part of the legislature to confer the same limited power twice over within six or seven lines but in different language upon each occasion. Some meaning must be attributed to the words "on such terms as he may think fit" and as I see it that meaning can only be one over and above and distinct from what follows in the sub-section. 11. The power to order costs is a necessary concomitant of the work of the courts but in criminal proceedings at any rate, except when an indictment has been removed by certiorari, the power depends entirely upon statute. In England that statute is the Costs in Criminal Cases Act of 1952 as amended by the Criminal Justice Act 1967. No similar ordinance devoted entirely to the subject of costs in criminal proceedings exists in Hong Kong and in the present instance, if the magistrate had power at all to the subject of costs in criminal proceedings exists in Hong Kong and in the present instance, if the magistrate had power at all to order the Crown to pay the costs of the adjournment, his power sprang from section 23(2) of the Magistrates Ordinance. 12. The matter is one of simple interpretation as to which there can be no real doubt and I have very little hesitation in holding that the phrase "on such terms as he may think fit" includes the power to award costs and that learned magistrate had power in the present case to adjourn the hearing upon the terms that the Appellant should pay the costs of the adjournment. 13. Whether the learned magistrate was right in ordering payment of $600 in this respect is another matter. A sum of $900 had originally been contended for by counsel for the Respondent but the magistrate settled upon $600. 14. Section 69(1) of the Magistrates Ordinance reads:-
15. Mr. Duckett argued that the words "summary conviction or of an order made by a magistrate" contemplated an order in the nature of a termination of the proceedings. Again, I see no necessity for so restrictive an approach and as I read the sub-section it empowers a magistrate, upon making an order which is not conclusive of the proceedings, to do so upon terms as to costs. In the present case the terms that the Appellant should pay the costs of the adjournment fixed at $600. In so doing the magistrate erred slightly because of the provisions of section 69 which restrict his powers to the sum of $500 and which restriction must temper the phrase "on such terms as he may think fit" in section 23(2). 16. The question of law stated by the learned magistrate is whether he had power to order the Appellant to pay to the Respondent $600 as costs on adjourning the hearing. The answer must be that he had power so to order the payment of costs but only to the extent of $500 and his order is amended accordingly. Representation: Duckett S.C.C. for Appellant. Respondent in person. |