The Attorney General v. Leung Chi Kin
Read the full judgment text of CACC 119/1974 on BabelCite. This Court of Appeal judgment.
1. This is an appeal by way of case stated. At the outset counsel for the Appellant has asked us to remit the Case to the learned magistrate for amendment or rather, if we understand him aright, for restatement. This is the second time within a week that we have been asked, in an appeal which had been called on for hearing, to remit a case stated for amendment. In the present case we are told that counsel for the Appellant submitted a draft to the learned magistrate, who in turn sent the draft t
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CACC000119/1974 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 119 OF 1974 -----------------
----------------- Coram: Huggins & McMullin, JJ. Date of Judgment: 28th May 1974. ----------------- JUDGMENT ----------------- Huggins, J. : 1. This is an appeal by way of case stated. At the outset counsel for the Appellant has asked us to remit the Case to the learned magistrate for amendment or rather, if we understand him aright, for restatement. This is the second time within a week that we have been asked, in an appeal which had been called on for hearing, to remit a case stated for amendment. In the present case we are told that counsel for the Appellant submitted a draft to the learned magistrate, who in turn sent the draft to the Respondent. Counsel for the Respondent prepared an alternative draft. It is not clear whether any attempt was made to agree one or other of these drafts, with or without amendment, but neither was acceptable to the learned magistrate, who prepared and signed a Case drafted by himself. There is no suggestion that he subsequently refused to amend the Case and no application was made under s.112 of the Magistrates Ordinance for an order of mandamus to compel him to amend, but counsel for the Appellant appears to concede that we could not decide the appeal on the Case as it stands. Indeed, as soon as we saw the Case we noticed that it was deficient in several respects and asked the Clerk of the Court to obtain an assurance that the appeal would be effective since it had been set down for three days. It was manifest, inter alia, that there were no findings recorded on some vital issues of fact, that the contentions of the parties on the issues of law referred to us were not set out and that the questions posed to us needed drastic revision. 2. Where it is the procedure of case stated is, when properly followed, the most satisfactory form of appeal there is, because it enables the appellate court to apply itself to the questions of law upon which its opinion is asked without being encumbered with irrelevant matter. Unfortunately there has over the years in Hong Kong been far too many cases in which this Court has had to complain of a lack of care in stating cases. In 1971 I had occasion to make such a complaint, saying that I hoped it would be the last time that it would be necessary to set out the principles relating to this subject. Those observations were not reported. We therefore take the opportunity to remind magistrates and practitioners of what is required and to express the hope that what we say will be reported for future reference. 3. In the first place it must be remembered that although s.105 of the Magistrates Ordinance provides for an application to the magistrate to state and sign a case responsibility for the form in which the case comes before this Court rests ultimately upon the parties and their advisers, because under s.112 they can apply for an order of mandamus requiring the magistrate to amend a case stated so as to rectify any errors or deficiencies, whereupon the magistrate has an opportunity to explain his refusal to comply with a request to amend. For this reason, although it cannot be insisted upon, the better practice is that the magistrate should invite the parties to draft the case and submit it to him for consideration: see Cowlishaw v. Chalkley 1955 1 All E.R. 367. That is not to say that the magistrate is bound by an agreement of the parties and the Court will usually accept a statement of the magistrate where there is a contest as to what took place in the court below: May v. Beeley 1910 2 K.B. 722. However, apart from that "if parties do agree a case it is rather a strong thing for justices not to adopt it": per Lord Goddard, C.J. in Becker v. Purchase (1950) 66 T.L.R. (Part II) 788, 790. In particular it is for the appellant to decide what questions he wishes to raise upon the appeal and the only justificatior for altering draft questions presented by an appellant would be that they were not clear, that they misrepresented the magistrate's decision or (as here) that they included questions which the Court ought not to be asked to answer. Even if the magistrate drafts the Case himself it should be submitted to both parties for comment before it is signed, as this may avoid the necessity of an application for amendment: Cowlishaw v. Chalkley supra. 4. The form of a case stated should be that indicated in Douglas's Summary Jurisdiction Acts (10th ed.) 313 (see Downsborough v. Huddersfield Industrial Society 1942 1K.B. 306, 308 n.), but as that book is not readily available in Hong Kong a suitable substitute precedent may be found in Chitty's Queen's Bench Forms (20th ed.) 1030, Form 1611. The basic requirements of a case stated are that it should be complete in itself and should not have any annexure unless it is essential to the decision of the appeal that such annexure should be before the Court. In particular the magistrate's judgment should not normally be exhibited and it is not desirable as a general rule, although it may not always be wrong, for the notes of evidence to be annexed even if the Court is asked to decide whether there was evidence on which the magistrate could properly come to his conclusion: Hickton v. Hodgson (1914) 78 J.P. 93. The case stated should contain in numbered paragraphs
5. As Byles, J. said in Yorkshire Tire Co. v. Rotherham Local Board of Health (1858) 22 J.P. 625, "it is very important that the court should have power over their own proceedings". We have power under s.109 to remit the case to the magistrate for amendment and that must include power to order a restatement. Here the defects in the Case are so manifest that we are prepared to make such an order before argument, as was done in the Yorkshire Tire Co. Case supra, although the Court will not usually entertain preliminary discussions (otherwise than upon an application under s.112) as to the sufficiency of a case stated: see Christie v. Guardians of the Poor of Chelsea (1858) 22 J.P. 83. In the present case we are of opinion that the Case must be remitted to the magistrate for restatement. Counsel have agreed that they will now do what they could probably have done before, namely seek to agree a draft Case which can fairly be submitted to the learned magistrate for his adoption. The appeal will stand adjourned with liberty to restore and in all the circumstances we think the Appellant should pay the Respondent's costs of the adjournment, although those costs shall include the fee of not more than one counsel. 28th May 1974. Representation: |
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