The Queen v. Wong Kwok-lun

CACC000916/1983

IN THE COURT OF APPEAL

BETWEEN

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Coram: McMullin, V.-P., Li & Silke, JJ.A.

Date: 27th January 1984.

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JUDGMENT

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Silke, J.A.:

1. This application for leave to appeal against conviction turns on one single issue, succinctly set out in Mr. Corrigan's grounds, and that is a lack of jurisdiction in the District Court to try the matter.

2. The offence charged was forcible detention, contrary to section 42 of the Offences Against the Person Ordinance.

3. It has already been held in The Queen v. CHAN Yau-hang & HO Lai-man⁽¹⁾ that, because of a lacuna in the law, there is no jurisdiction in the District Court to try this offence.  This comes about as in 1982 the previous maximum term of fourteen years' imprisonment was altered by the Legislature to one of life imprisonment.

4. Under the provisions of section 88 of the Magistrates Ordinance, read with Part III of the Second Schedule, the Attorney General may make application for transfer to the District Court for trial of indictable offences therein specifically set out and which carry a sentence of life imprisonment.  All other such indictable offences are excluded by that Part. The Schedule has not been amended to permit section 42 offence to be so transferred and tried.

5. That being so, the original conviction is a nullity and it has been urged, properly, upon us that the conviction should be quashed.  The Crown does not seek, quite properly, to have the matter retried.  The order will therefore be that the application is granted, the appeal allowed, the conviction quashed and the sentence set aside.

(1) Criminal Appeal No. 311 of 1983

Representation:

P. Dinan, Esq. assigned by D.L.A. for Applicant.

M. Jennings, Esq. for Crown/Respondent.