The Attorney General v. Tong Yiu-pui
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CACC000879/1971 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.879 OF 1971 -----------------
----------------- Coram: Rigby, C. J., Pickering & Leonard, JJ. Date of Judgment: 25 February 1972 ----------------- JUDGMENT ----------------- Leonard J.: 1. This matter came before the Full Court upon the direction of a single judge under the provisions of Section 118(1) (d) of the Magistrates Ordinance (Cap.227). It concerns an appeal by way of case stated under Section 105 of the Magistrates Ordinance. The question of law now posed for the decision of this Court is whether the learned magistrate "was right in holding that where a person is charged with an offence under section 11(1) of the Road Traffic Ordinance and the evidence for the prosecution does not establish a prima facie case of an offence under that provision but does disclose a prima facie case of an offence under section 14 of the said Ordinance but the proceedings have not been instituted with six months from the date of the offence, the person charged has a good defence by virtue of the provisions of section 26 of the Magistrates Ordinance and is entitled to be acquitted." 2. The circumstances giving rise to this question of law were as follows:-
3. The offence of which the appellant was charged was an indictable offence, section 11 of the Road Traffic Ordinance providing
4. Section 11(2) defines dangerous driving and (3) prescribes the punishment for dangerous driving causing death. Section 11(7) reads:
5. There is no time limit imposed by the Road Traffic Ordinance for making any complaint or laying any information in respect of any offence under section 11 of that Ordinance. On the information for dangerous driving coming before the learned magistrate for hearing he elected to deal with it summarily. Having done so and having decided on hearing the evidence for the prosecution that the evidence did not establish a prima facie case in respect of the charge of dangerous driving but that it did establish a case to answer in respect of the offence of careless driving, the learned trial magistrate pointed out that that was an offence to which the provisions of section 26 of the Magistrates Ordinance applied and that if the information had at the outset alleged that the defendant had committed the offence of careless driving then section 26 would have provided him with a complete defence. He pointed out that if the information had contained a charge of angerous driving coupled with a charge of careless driving objection would undoubtedly have been taken to the careless driving charge and asked himself "why should the position be any different where the charge of careless driving comes before the Court as an alternative which does need to be alleged." He held that the prosecution for dangerous driving "was in fact and in substance a prosecution for careless driving as well and that the information which alleged dangerous driving was also impliedly alleging careless driving." He was of the opinion that the prosecution for careless driving was commenced by the information which alleged dangerous driving and that section 26 provided the defendant with a good defence to the charge of careless driving. He accordingly acquitted the Respondent. 6. The learned magistrate did not comment on the provisions of section 92 and 93(a) of the Magistrates Ordinance. Section 92 provides that "wherever any person is accused before a permanent magistrate of any indictable offence ...... the magistrate, instead of committing the accused for the trial before the court, may deal with the case and convict the accused summarily,....." section 93(a) or vides
7. Section 26 is also a procedural section. It does not concern itself with indictable offences and does no more than prohibit the initiation of proceedings for summary offences once a period of six months has elapsed from the time when the matter of complaint arose. Section 26 does not provide a defence as such. It prevents the initiation of summary proceedings. Here the proceedings were properly started and the magistrate duly seized of them. The Respondent could not, on being charged, have objected to the charge by placing reliance on section 26. 8. Section 11 of the Road Traffic Ordinance enables the Court or magistrate on the trial of any person for dangerous driving (an indictable offence) to acquit him of that offence and find him guilty of careless driving. The charge before the magistrate in this case was properly before him because it was a charge for an indictable offence. He elected to deal with it summarily. Until he did so, the procedure proper to an indictable offence had to be followed and not the procedure proper to a summary offence. Thereafter, because of section 93 of the Magistrates Ordinance, the procedure actually followed remained valid. However, the magistrate having found that there was no case to answer on the charge of dangerous driving that charge had to be dismissed. There was left before the magistrate, by virtue of section 11(7) of the Road Traffic Ordinance, a charge for the summary offence of careless driving in respect of which no valid information or complaint existed and with which he could not therefore proceed. To put it another way, section 11(7) may be permissive but it does not permit a Court or magistrate to find a person who is accused of dangerous driving, guilty of careless driving when there is no prima facie case on the charge of dangerous driving and the information or complaint has been not laid within six months as provided by section 26 of the Magistrates Ordinance. 9. For these reasons the answer to the question of law posed by the learned trial magistrate must be in the affirmative and this appeal must be dismissed. Representation: Marshall C.C. for Appellant. Donnelly (Gordon Hampton & Winter) for Respondent. (Separate Judgments delivered) IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 879 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Pickering and Leonard, JJ. Date of Judgment: 25th February, 1972 ----------------- JUDGMENT ----------------- Pickering, J.: 10. I agree that the answer to the question posed by the learned magistrate in his case stated must be in the affirmative. 11. It is true that the effect of s.11 sub-s.(7) of the Road Traffic Ordinance (Cap. 220) is to enable a magistrate to acquit upon a charge of dangerous driving and thereupon to convict of careless driving if the ingredients of that offence are proved. I refrain from deciding whether the apparently permissive language of the phrase in the subsection, "may find him guilty of an offence under s.14 (which relates to careless driving)" is in fact permissive or is intended to be mandatory given that an offence of careless driving is disclosed. The resolution of that issue is unnecessary for the purposes of the present case stated. 12. Even however if the language employed is intended to be, and is construed as, mandatory the express provision contained in s.11 sub-s.(7) of the Road Traffic Ordinance cannot negate the equally express provision of s.26 of the Magistrates Ordinance. That section reads:-
13. Careless driving not being an indictable offence and no time being limited by any Ordinance or Statute for making any complaint or laying any information in respect thereof, it follows that in the case of a charge of careless driving simpliciter, the complaint or information must be made or laid within six months of the date of the alleged offence. On the other hand, dangerous driving being an indictable offence, no such restriction as to the time for instituting proceedings exists. In the former case, though s.26 does not expressly so provide, it must follow that unless the proceedings have been instituted timeously, the magistrate has no jurisdiction to hear and determine the charge. In the latter case his jurisdiction cannot be ousted by reason of any interval of time between the date of the alleged offence and the institution of proceedings. 14. In the present case it is the contention of the Crown that since the original charge was for dangerous driving and was unfettered as to the date of commencement of the proceedings, it is open to the learned magistrate, despite his finding of no case to answer on the charge of dangerous driving, to proceed on the basis of a charge of careless driving. In my view this argument overlooks the fact that ones the magistrate had ruled that there was no case to answer in respect of dangerous driving, he was no longer dealing with an indictable offence. That offence was dead and all that was left for him to consider under s.11 sub-s.(7) of the Road Traffic Ordinance was the summary offence of careless driving. At that stage s.26 of the Magistrates Ordinance operated to prevent the magistrate from exercising jurisdiction, a process which he could only commence had the proceedings been instituted within 6 months of the date of the alleged offence - which was not the case. 15. This result, I venture to suggest, flows logically from the sequence of events as they occurred in the court below and is complete in itself. If however support be needed for that result it is to be derived from s.93(a) of the Magistrates Ordinance which provides
16. What then is the "procedure" which, from and after the moment the magistrate assumes the power to deal with the offence summarily, he is required to adopt? It is the procedure laid down in s.19 of the Ordinance relating to summary offences - but that is precisely the procedure which, where the proceedings have not been instituted within six months of the date of the alleged offence, the magistrate is prevented from embarking upon by the provisions of s.26. 17. It is for these reasons that I agree that the answer to the learned magistrate's question must be "Yes". 18. I would observe finally that all the members of this Court are happy that the logic of events arrives at this result for the reason that, were it otherwise, it would be theoretically possible for an unscrupulous prosecutor, knowing that the facts alleged would not sustain a charge of dangerous driving but might support one of careless driving and being out of time for the institution of proceedings in respect of that latter offence, to bring the hapless motorist before the Court upon a stale charge, by the device of instituting hopeless proceedings for dangerous driving. 19. We are happily aware that those whose duty it is to bring criminal charges before the Courts of this Colony do not resort to such shabby techniques: but the theoretical possibility would be there had the events led us logically to a different conclusion - and we have to look not only at the present but to the future when persons of unknown calibre in the administration of the law will have replaced its present custodians on the Executive side. Representation: Marshall C.C for appellant. Donnelly (Hampton) for respondent IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 879 OF 1971 -----------------
----------------- Coram: Rigby, C.J., Pickering and Leonard, JJ. Date of Judgment: 25th February, 1972. ----------------- JUDGMENT ----------------- Rigby, C.J.: 20. I have had the advantage of reading the judgments delivered by the other members of this court. I agree entirely with the views they have expressed and the conclusions they have reached, and there is nothing I wish to add. Representation: Marshall, C.C. for Appellant. Donnelly (Gordon Hampton & Winter) for Respondent. |