HKSAR v. Hung Fung Garment Co Ltd

HCMA38/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 38 OF 2009

(ON APPEAL FROM TWS 9019 OF 2008)

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BETWEEN

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Before : Hon Saw J in Court

Date of Hearing : 27 February 2009

Date of Judgment : 27 February 2009

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J U D G M E N T

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1.The appellant company was charged with failing to keep a work place free from obstruction or hazard, contrary to Regulations 39(2) and 46(2)(c) of the Factories and Industrial Undertaking Regulations, Cap. 59A.

2.The matter first came before Mr J.T. Glass, magistrate on 27 November 2008 as a pre-trial review.  No pleas were then taken.  The appellant, then represented by Mr Y.C. Yeung, as he is today before me, complained that the prosecution had not disclosed to the appellant’s representatives a vast array of nominated medical reports of the victim, that is, the person who was alleged to have tripped and fallen in the premises controlled by the appellant.

3.Having heard submissions, the magistrate directed the prosecution to obtain and provide to the appellant’s representatives the requested medical reports.  He then adjourned the hearing for further mention to 22 December 2008.

4.On that day, the prosecution advised the magistrate that, as before, the victim had refused to give her consent to the release of her medical reports and because of that, the prosecution had not been able to comply with the magistrate’s earlier direction.  The magistrate, having heard this then, quite properly in my opinion, attempted to determine the parameters of the issues in the trial.

5.Having established that the real issue in the proceedings was whether or not the victim had fallen and twisted her ankle, the magistrate revisited his earlier direction to the prosecution to obtain and provide to the appellant the medical reports.  He considered that his earlier direction was far too wide.  He did however suggest to the appellant’s counsel, again, Mr Y.C. Yeung, that they could quite properly issue a witness summons, to the victim’s doctor to attend on the day of the trial and to produce then her medical reports.  The magistrate then set the matter down for trial on 6 April 2009.

6.On 22 December 2008, Mr Yeung suggested to the magistrate that his decision to revisit and limit his earlier pre-trial direction to the prosecution was a review of a decision or determination made by him and that being so, was subject to the provisions of section 104(5) of the Magistrates Ordinance, Cap. 227 (“the Ordinance”), as such, the parties were required to be given 14 days notice of that intention.  The magistrate considered that that submission was entirely misconceived as section 104(5) of the Ordinance had no application to directions given in a pre-trial review or for that matter in the course of a trial.

7.It is the refusal of the magistrate to accede to the suggestion that he provide 14 days notice to the parties of his intention to review his earlier pre-trial decision that forms the basis of the appellant’s appeal before me today.

8.In the Notice of Appeal filed on behalf of the appellant, it is said that the decision of the magistrate to revisit his pre-trial directions was a review pursuant to section 104(5) of the Ordinance and that, as such, being on the initiative of the magistrate, required the parties to be given 14 clear days notice. 

9.It is also suggested in the Notice of Appeal that the “review” was unfair and wrong in law.

10.Notwithstanding the compelling written submissions supported by authorities of this court and the Court of Appeal, submitted by Ms Lam on behalf of the respondent, the appellant, again represented by Mr Y.C. Yeung, maintained that the decision of the magistrate was a review caught by section 104(5) of the Ordinance.

11.Section 104(5) of the Ordinance reads as follows :

“(5)  It shall also be lawful for a magistrate on his own initiative, within 14 clear days after the determination in any manner of any matter which he has power to determine in a summary way, to re-open the case, and thereafter, whether within the said period of 14 clear days or after its expiration, to review his decision in the matter.”

12.Section 105 of the Ordinance is similarly worded, it says, in so far as is relevant :

“Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case …”

13.Section 113 of the Ordinance is similarly worded.  Subsection (1) reads :

“Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in manner hereinafter provided to a judge.”

14.In Attorney General v. Chan Wah Chuen [1988] 2 HKLR 559, Bewely J considered a number of English and Hong Kong authorities, and held that the word “determination” in the context of section 104(1) of the Ordinance referred to the final decision on all matters in issue between the parties.  It was, he said, an expression to be construed ejusdem generic with “conviction, order or determination of a magistrate” in sections 104, 105 and 113. 

15.Similarly, in R. v. Yeung Wai Hung [1990] 2 HKLR 324 which was a case concerned with section 105 of the Ordinance, the Court of Appeal confirmed that a magistrate could not state a case pursuant to that section until there had been a final determination of the matters before him.

16.The expressions “conviction, order or determination of a magistrate” does not apply to interlocutory orders.   In the instant proceedings the magistrate varied his previous direction, and that previous direction was unquestionably an interlocutory order.  It was not a determination.

17.In R. v. Wong Yin Ping [1997] 2 HKC 312, Gall J observed as follows :

“  The law in respect of appeal such as this [an appeal for interlocutory orders by a magistrate] is and has been settled for a considerable period of time.  An appeal lies at the suit of a person aggrieved by any conviction order or determination of a magistrate in respect of or in connection with any offence.  Conviction, order or determination must be read ejusdem generis and whilst it covers orders in connection with an offence, it does not include orders or interlocutory decisions in connection with the trial of that offence.  …”

On that occasion, Gall J dismissed the appeal for want of jurisdiction.

18.The appeal is dismissed for want of jurisdiction.

19.There is an application by the respondent that the appellant, whose appeal I have just dismissed for want of jurisdiction, pay to the respondent the costs of this appeal.

20.Section 13 of the Costs in Criminal Cases Ordinance, Cap. 492 reads as follows :

“Where a defendant unsuccessfully-

(a)  appeals to a judge from any conviction, order or determination of a magistrate; or

(b)  appeals to the Court of Appeal against-

(i)  his conviction of an offence or any other finding or verdict made in respect of him; or

(ii)  sentence; or

(c)  applies to the Court of Appeal for leave to appeal against any of the matters referred to in paragraph (a),

and the judge or the Court of Appeal is satisfied that the appeal or the application, as the case may be, is or was without merit, the judge or the Court of Appeal may order that costs be awarded to the prosecutor.”

Those provisions are not mandatory as Mr Y.C. Yeung points out on behalf of the appellant.

21.However, in my opinion, this appeal was entirely without merit.  The law is clear and unambiguous.  The authorities are clear and unambiguous.  The appeal should never have been before this court.  In those circumstances I intend to make an order that the appellant pay the respondent costs of this appeal in an amount to be agreed, and in the absence of agreement to be taxed and then paid.

Ms Lam Tak Wing, Winnie, SPP of Department of Justice, for HKSAR

Mr Yeung Yeuk Chuen, instructed by Messrs Simon C.W. Yung & Co., for the Appellant