|
HCMP000549/2002
FOR REFERENCE
HCMP 549/2002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 549 OF 2002
____________
| IN THE MATTER OF Kowloon City Magistracy Court Case No. KCCC3721/2001 |
|
AND
|
| IN THE MATTER OF application for bail under Section 9J of the Criminal Procedure Ordinance Cap. 221 of the Laws of Hong Kong |
____________
| BETWEEN |
| HKSAR |
Respondent |
| AND |
| SIU YAT LEUNG |
Applicant |
____________
Coram: Deputy High Court Judge McCoy SC in Chambers
Date of Hearing: 15 April 2002
Date of Judgment: 15 April 2002
Date of Reasons for Judgment: 19 April 2002
_____________________________
REASONS FOR JUDGMENT
_____________________________
1. This application for bail, which I dismissed with short form reasons at the hearing, has raised significant and previously unresolved questions of jurisdiction under Part 1A Criminal Procedure Ordinance, Cap. 221. I now hand down my formal reasons, in accordance with s11 High Court Ordinance Cap 4.
2. On 11 April 2002, the applicant, who was and is still presently detained in Lai Chi Kok Reception Centre awaiting trial, took out a summons, supported by a short affirmation returnable on 15 April 2002, applying for bail. His application was expressly brought in terms of s.9J Criminal Procedure Ordinance.
3. That section provides:
"Review of refusal of bail or conditions of bail
S9J
(1) Where a District Judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition, apply to a judge to be admitted to bail without bail being subject to that condition.
(2) On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the District Judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just."
4. This section gives the Court of First Instance statutory jurisdiction to review, at the behest of a defendant, the decision made by either a District Judge or a magistrate, under s.9D(1) Criminal Procedure Ordinance. The jurisdiction under s.9J is not appellate. The judge of the Court of First Instance must review the matter afresh: s.9J(2).
5. It is apparent that s.9J(1) precludes the judge of the Court of First Instance from reviewing under that section an earlier decision of another Court of First Instance judge made under and in accordance with s.9J. This is consistent with the general common law principle that no court of co-ordinate jurisdiction may sit in review of itself: Re Kray [1965] Ch 736, 745A, per Lord Gardiner LC, Chung Tse Ching v Commissioner of Correctional Services [1988] HKC 251, 255D (CA) per Cons VP. Of course, this does not (outside the s9J jurisdiction) preclude a judge of the Court of First Instance varying, granting or revoking bail which had been earlier granted by the Court of First Instance, if the circumstances warrant that course; that is "for sufficient reason": Chung Tse Ching at 254D-E.
History
6. The applicant is now facing an indictment, dated 4 April 2002, which alleges the serious offences of incitement to rob, contrary to common law and punishable under s.101I Criminal Procedure Ordinance and possession of arms without a licence, contrary to s.13(1) and (2) Firearms and Ammunition Ordinance, Cap. 238. The case, HCCC 109/2002, is pending a trial fixture in this Court.
7. The applicant was arrested on 18 December 2001. An application for bail on 1 February 2002 to a Magistrate was unsuccessful. The applicant by a summons dated 7 February 2002, returnable on 15 February 2002, asked the Court of First Instance, pursuant to s.9J Criminal Procedure Ordinance, to review the decision of the Magistrate. On 15 February 2002 Jackson J refused to grant him bail, because of the strength of the prosecution evidence and the nature and seriousness of the alleged offences.
8. Subsequent to the decision of Jackson J the applicant appeared before a Magistrate on 15 March 2002. He made no application for bail and was remanded to 28 March 2002 for committal proceedings. On that day he was committed to face trial in the Court of First Instance. He made no application for bail.
9. The present application before me is purportedly brought pursuant to s.9J However, this Court cannot review the decision of Jackson J, which was itself a review of the decision of the Magistrate on 1 February 2002. The primary decision of the Magistrate has been reviewed and affirmed. That jurisdiction to review has been exhausted. That primary decision of the Magistrate was made pursuant to s.9D(1). Since the decision of Jackson J, understandably, there has been no application for bail to any Magistrate. I therefore conclude that the present application fails for want of statutory jurisdiction under s.9J(1) Criminal Procedure Ordinance.
Other jurisdiction to apply for bail
10. However, so jealously does the Court inquire into any decision restricting liberty of a person entitled to the presumption of innocence, that the Court on its own motion, nunc pro tunc, amended the summons so that it now sought bail under s.9D Criminal Procedure Ordinance and/or the inherent jurisdiction of the High Court. Since the completion on 28 March of his committal proceedings under Part III Magistrates Ordinance Cap 227, the magistracy has become functus officio and indisputably so by the time of the filing of the indictment, a week later, in this Court.
Inherent Jurisdiction to Grant Bail
11. There can be no doubt that Part 1A Criminal Procedure Ordinance is not a code. Indeed as Dr Robert Sharpe stated (now Sharpe JA in the Ontario Court of Appeal) in The Law of Habeas Corpus, 2nd ed at p. 134.:
"... the summary procedure, designed particularly for the purpose of bail and which is...
| 
