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Attorney General v Chan Wah Chuen

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date02 June 1988
Year1988
Judgement NumberHCMA274/1988
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000274/1988 ATTORNEY GENERAL v. CHAN WAH CHUEN

HCMA000274/1988

1988, No. 274

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H E A D N O T E

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Review of conviction in Magistrates Court - meaning of 'determination' - application not time-barred if made before date sentence passed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 274 OF 1988

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BETWEEN

Attorney General

Appellant

and

Chan Wah Chuen

Respondent

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Coram: Hon. Bewley J. in Court

Date of hearing: 11th May 1988

Date of handing down judgment: 2nd June 1988

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J U D G M E N T

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1. This is an appeal by the Attorney General by way of case stated. It concerns the proper meaning of the word 'determination' in the context of section 104(1) of the Magistrate Ordinance Cap. 227, which provides: -

"104. (1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter."

2. On 3rd February this year at Central Magistrates Court, the respondent pleaded not guilty to possession of dangerous drugs for the purpose of unlawful trafficking. He was tried the same day and convicted of simple possession. He was remanded to 24th February; when sentence passed.

3. At this hearing the prosecutor applied under s.104 for a review of the conviction. The application was refused, on the grounds that it was out of time. The question of law for this court is whether the magistrate erred in holding that he had no jurisdiction to grant the application.

4. In England the power of review is limited to a) the rectification of invalid sentences, and b) to ordering a rehearing by different justices, following a finding of guilt, where it appears to be in the interests of justice. The power is exercisable under s.142 (4) of the Magistrates Court Act, 1980, "only within the period of 28 days beginning with the day on which the sentence or order was imposed or made or the person was found guilty, as the case may be...."

5. The wording of the subsection is quite different from that of s.104, however, and thus the provision for a rehearing of the issue of guilt or innocence, before the sentencing stage has been reached, is not helpful.

6. S.111(1) of the same Act (replacing s.87 of the 1952 Act) gives "any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it-is wrong in law .... by applying to the justice composing the court to state a case......''

7. S.111(2) and (3) provided:-

"(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.

(3) For the purpose of subsection (2) above, the day on which the decision of the magistrates' court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender."

8. Counsel for the appellant, Mr Cross, also relies upon R. v Grant(1). The latter appealed against sentence on the ground that Quarter Sessions had no power to sentence him to corrective training, as he was not served with the notice the requisite three days before the hearing by the justices, but only before the passing of sentence by Quarter Sessions. Lord Goddard C.J. said at p. 503: -

"If it is served three days before the prisoner is brought up for sentence, that is all that is required, and we cannot hold in this case that the 'trial' was the incomplete trial which takes place before justices, for, in our opinion, for this purpose the trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged."

This case was referred to the magistrate but he found it unhelpful, since the word 'trial' does not appear in s.104.

9. The only other authorities relate to appeals from magistrates' courts. Mr Cross urges the court to look at the similarities of s.104 to s.105 and s.113 of the same Ordinance and submits that it should be construed ejusdem generis.

10. Section 105 commences: -

"105. 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....."

11. Section 113 provides: -

"113. (1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connexion 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.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connexion with an offence either party thereto may appeal from such order or determination of such magistrate to a judge."

12. In Atkinson v United States Government and others(2) the House of Lords held that s.87 of the Magistrates Court Act had no application to committal proceedings and the magistrate had no power to state a case, Lord Guest said at p. 1332: -

"Counsel for the second and third respondents, as amicus curiae, gave the complete answer, in my view, when he said that a stated case was only competent for a final determination. This conclusion was reached by an examination of s. 87 where 'other proceeding' had to be interpreted ejusdem generis with the words 'conviction, order or determination' which are final proceedings. As the decision of committing magistrates or the chief metropolitan magistrate under the Extradition Acts was not a final determination, a stated case was incompetent."

In R. v Rockford...

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