The Attorney General v. Cheung Kam-lun
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CACC000840/1981 Case No.: Criminal Appeal No. 840 of 1981. Date of hearing: 12th October, 1981. Date when judgment was delivered: 12th October, 1981.
Cases cited by Counsel in agrument:
----------------- Coram: Roberts, C.J., in Court Date of Judgment: 12th October 1981 ----------------- JUDGMENT -----------------
1. This is a case stated by a magistrate sitting at Causeway Bay, at the request of the Attorney General. 2. On 13th July 1981, a charge of assault against CHEUNG Kam-lun, the respondent, was dismissed by the magistrate for want of prosecution. 3. The respondent first appeared at the Causeway Bay Magistracy, for the fixing of a date for trial on the 13th April. On that occasion, the magistrate fixed 27th May for hearing. Unfortunately, the magistrate who was due to try the case fell sick, so that it had to be re-fixed for trial, on 13th July, 1981, at 9.30. 4. At about 10 o'clock on that morning the case was called on. The defendant was present and represented by his solicitor Mr. Lore. Nobody appeared to prosecute on behalf of the Crown, although I am told that the Crown witnesses were in attendance and ready to give evidence. 5. The magistrate called on the case again at about 10.55, but there was still nobody present to represent the Crown. However, a Crown Counsel, who was present in court in connection with other matters, informed the magistrate that he believed that another Crown Counsel was on his way to the court, though he did not know when he would arrive. The solicitor for the respondent thereupon applied for the charge to be dismissed for want of prosecution. This the magistrate then did. A few minutes later, Crown Counsel arrived and asked the magistrate to review his decision to dismiss the charge, in exercise of his powers of review under Section 104 of the Magistrates Ordinance. The magistrate refused to hear such an application in the absence of the defendant or his solicitor, both of whom appear to have left the court immediately after the charge was dismissed. 6. On 24th July, Crown Counsel appeared in front of the magistrate and argued that he should review his dismissal of the charge. During this application for review, Crown Counsel explained to the magistrate why no prosecutor had attended on the morning assigned for the trial of the charge. In the relevant file in the Attorney General's chambers there appeared a note, signed by Crown Counsel, recording that the adjourned date of the hearing was "13th July, 1981". Unfortunately, the entry was not clearly written and had been misread by a clerk in the Legal Department to read the "13th August, 1981". 7. The magistrate dismissed the application. 8. In his statement of case, the magistrate has listed his reasons for exercising his discretion to dismiss the charge for want of prosecution. They were that the prosecution had taken four and a half months to lay the information; that the matter had been hanging over the respondent for seven and a half months when he came before him on the 13th July; that the offence was of a relatively minor nature; and that the Crown should have made it its business to be in court at the proper time to prosecute the charge. 9. I do not think that the fact that an information has been laid within a period of four and a half months after the offence is of itself a satisfactory ground upon which a charge should be dismissed. The law provides limitation periods for some offences. So long as any limitation period prescribed by law is complied with by the Crown, it is not for the court to dismiss an information on the ground that there has been undue delay. Although it may be accurate to say that the matter had been hanging over the defendant for seven and a half months, three months of that period was due to the inability of the court to arrange an earlier date for trial and it would be wrong to penalize the Crown for this. 10. Whether or not the facts of the offence showed it to be of a relatively minor nature, I do not know, as I have no details of the evidence which the Crown intended to present. However the maximum punishment for an assault under Section 40 of the Offences Against Person Ordinance is twelve months imprisonment. 11. However it seems clear that the main reason which weighed with the magistrate was the non-appearance of the Crown. 12. This is not a case in which there had been a series of adjournments, which could be attributed to the act or default of either party. Indeed, this was the first request for an adjournment by either of the parties. The magistrate did not know, at the stage when he dismissed the charge, the reason for the non-appearance of the prosecutor. 13. Courts are not infrequently faced with exactly this position. The case is called on, but counsel representing one of the parties (and this applies to both criminal and civil matters) is absent. The court does not know why. It may be that counsel has fallen sick, or met with an accident, or been caught in traffic, or perhaps his clerk has made a mistaken entry in counsel's diary, as happened in this case. 14. It seems to me that, however annoying and inconvenient it may be for a judge or magistrate, the usual course ought to be to grant a sufficient adjournment for him to be provided with an explanation of why counsel has not appeared. 15. With the consent of counsel for the respondent, I have examined the Attorney General's file. Crown Counsel who entered the supposed date of trial in that file did not write as clearly as he might have done. I can well understand why the clerk in the Legal Department who read it was misled into thinking that the date of trial was 13th August, not 13th July. 16. If the respondent had appeared in front of the on that morning and sought an adjournment, on the ground that his solicitor had not arrived to represent him although he had been instructed to do so, I feel sure that the. magistrate would have granted an adjournment, at least until the respondent had been able to find out why his solicitor had not attended. To have refused an adjournment in those circumstances would have been unfair to the respondent. 17. As Mr. Justice Huggins observed in the case of the Attorney General v. IP Chong-kwan and Others(1)
In my view justice was not done to the Crown in this case. 18. I think that, when he was informed that Crown Counsel was on his way, the magistrate should have adjourned the matter, at least sufficiently long to enable Crown Counsel to appear and explain the matter to him. 19. I am aware of the general principle which applies to interference by appeal courts with the exercise of discretion of magistrates and which was set out by Mr. Justice Huggins in YIP's case. Nevertheless, I have come to the conclusion that the discretion was exercised unreasonably in the circumstances and that the result of the order of the magistrate was to cause injustice to the prosecution. 20. Dealing with the three questions of law posed by the magistrate, the answer to the first is 'Yes'. To the second 'No'. To the third 'Yes'. 21. In accordance with the powers conferred by the Magistrates Ordinance, I direct that the charge which was dismissed by the magistrate should be referred back to the Causeway Bay Magistracy for trial. 22. Since the mistake which occurred, though understandable, must be attributed to a slip by a member of the Attorney General's chambers, I consider that the proper course would be to award a sum of $1,000 to the respondent by way of costs, to cover the hearing on the 13th July, when the charge was dismissed by the magistrate. I will make no order as to costs in relation to the application for review or the hearing to-day. Representation: Duckett, Assistant Principal Crown Counsel, for Appellant Mackay (W.K. Lore & Co.) for Respondent (1979) H.K.L.R. 141 |