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Hksar v Lau Wai Wo

Judgment Cited authorities 4 Cited in Precedent Map Related
Vincent
Judgment Date17 March 2003
Year2003
Judgement NumberHCMA802/2002
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000802/2002 HKSAR v. LAU WAI WO

HCMA000802/2002

HCMA802/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 802 OF 2002

(On appeal from STCC 666 of 2002)

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BETWEEN
HKSAR Respondent
AND
LAU WAI WO Appellant

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Coram: Hon Nguyen J in Court

Date of Hearing: 24 January 2003

Date of Judgment: 17 March 2003

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J U D G M E N T

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1. The appellant was charged with common assault. He was tried by Ms Woo Huey Fang at Shatin Magistracy on 18 July 2002. At the end of the trial, the magistrate acquitted the appellant of the charge but she decided, having heard the evidence, that the appellant should be bound over in the sum of $1,000 to keep the peace for the period of one year. The appellant did not consent to the making of the binding-over order. In her Statement of Findings, the magistrate said that in view of the history behind the incident, she feared that sooner or later the appellant might cause some trouble which would have the effect of disturbing the peace. The appellant now appeals against that order.

2. The power of a judge or a magistrate to make an order binding over a defendant to keep the peace is derived from the Justices of the Peace Act 1361 and is now exercised in accordance with section 109I of the Criminal Procedure Ordinance, Cap.221, which is in very similar terms to the wording of section 1(7) of the UK Justices of the Peace Act 1968. Section 109I provides as follows :

" A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdiction, the power to bind over to keep the peace, and power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognizances or to find sureties or both, and committing him to prison if he does not comply."

3. In 1973, in the case of R. v. Woking Justices, Ex parte Gossage [1973] 1 QB 448, Lord Widgery CJ, sitting in the Divisional Court said, at page 450 :

" We need not go back over the old authorities to establish the fact that the justices' ancient power to bind over applies to all persons who are before the court, whether as parties or as witnesses, and that the fact that a defendant is acquitted of the charge against him is no bar to the justices binding him over to keep the peace. There are many instances, where, although the offence is not adequately proved, the conduct of the defendant has, in the opinion of the bench, justified that use of preventive justice."

Further, at page 451, Widgery CJ said :

" It seems to me that a very clear distinction is drawn between, on the one part, persons who come before justices as witnesses and, on the other, persons who come before justices as defendants. Not only do the witnesses come with no expected prospect of being subjected to any kind of penalty, but also the witnesses as such, although they may speak in evidence, cannot represent themselves through counsel and cannot call evidence on their own behalf. By contrast, the defendant comes before the court knowing that allegations are to be made against him, knowing that he can be represented if appropriate, and knowing that he can call evidence if he wishes. It seems to me that a rule which requires a witness to be warned of the possibility of binding over should not necessarily apply to a defendant in that different position."

4. In 1981, in the case of Veater v. G. & Others [1981] 1 WLR 567, the Divisional Court dealt with an appeal by the prosecutor against a decision by justices not to bind over the defendants after they refused to consent to being bound. Lord Lane CJ dismissed the appeal and, at page 577, said :

"At first sight there is much to be said for the view that an order that a person be bound over to keep the peace or to be of good behaviour is like any other order imposed by a court. To suggest that such an order requires consent before it is effective is almost a contradiction in...

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