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Hksar v Zhang Bing Xiao Yuan, Robin

Judgment Cited authorities 3 Cited in Precedent Map Related
Vincent
Judgment Date07 August 2003
Year2003
Citation[2003] 3 HKLRD 108
Judgement NumberHCMA643/2003
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000643/2003 HKSAR v. ZHANG BING XIAO YUAN, ROBIN

HCMA643/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 643 OF 2003

(ON APPEAL FROM ESCC 846 OF 2003)

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BETWEEN
HKSAR Respondent
AND
ZHANG BING XIAO YUAN, ROBIN Appellant

----------------------

Coram: Hon Jackson J in Court

Dates of Hearing: 31 July and 7 August 2003

Date of Judgment: 7 August 2003

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J U D G M E N T

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1. On 21 May 2003 the appellant was acquitted after trial in Eastern Magistracy of an offence of assault occasioning actually bodily harm. He was then ordered to be bound over in the sum of $1,000 "to keep the peace or to be of good behaviour for a period of 12 months". He appeals against that order and in his written ground of appeal he says this :

"All the evidence shows that I was assaulted and I sustained injury. The magistrate also said in his judgment that I should not approach [...] and scold him with foul language. But all these did not violate the law. Why sentence me to [be bound] over."

2. For present purposes the complete detail of the events which led to the appellant being prosecuted for assault are not perhaps important. Suffice it to say that the prosecution case was that on 26 September 2002 the appellant (a waiter) started an argument with his fellow employees in the restaurant where they worked. The chef intervened and received verbal abuse from the appellant for so doing. That led to a minor altercation between the chef and the appellant which was stopped by a passing police officer.

3. The following day the appellant (who was not then on duty) returned to the restaurant and tried to hit the chef but failed. This led to a struggle between the pair of them which struggle was stopped by other members of staff who called the police and the appellant was charged with the offence of assault.

4. Both the appellant and the chef received medical treatment for an assortment of minor injuries. The chef was granted seven days' sick leave; the appellant was discharged with medication.

5. What the magistrate has to say in his 'Reasons for imposing a binding over order' (inter alia) is this :

" In the result I acquitted the appellant. I was however in no doubt it was him who had used the foul language and been the aggressor on both occasions. It was plain to me he, still on the date of trial, harboured at least dissatisfaction, if not anger, towards PW1.

I was of the view there was a distinct likelihood the appellant would make some further approach to his former place of employment and/or to PW1 such as would lead to a breach of the peace.

I indicated to defence counsel I was considering making a binding over order. She responded she had no submissions to make on the appellant's behalf as to that.

...

Being satisfied the circumstances before me were such that a binding over order was appropriate I made such an order."

6. It is pertinent to note that the binding over order was made some eight months after the incident complained about and it was no doubt, for that reason that the magistrate said "... still on the date of trial ...".

7. This is not an appeal against conviction and nor is it an appeal against sentence because the appellant plainly was neither convicted nor sentenced. It is, as I have said, an appeal against the making of the 'binding over' order which is amenable to an appeal by virtue of section 113 of the Magistrates Ordinance.

8. I make that last point because the appellant plainly, and in my judgment perhaps for good reason, believes that he has been sentenced or punished for an offence of which he was acquitted and he is unable to see the justice or fairness in that. He holds that belief despite the fact that the magistrate specifically told him that he was not being sentenced or punished and his belief is in no way assuaged by the certificate (entitled 'Magistrates Ordinance, Cap.227 form 24 (s 28)') signed by the magistrate which is headed 'Punishment by Binding Over Order' [my emphasis].

9. Nor is the appellant's belief assuaged by the fact that when he lodged his appeal he was apparently given a form numbered 101 ('Notice of appeal to a judge against conviction') for his completion, and of course that form refers to both conviction and sentence.

10. There can be no question whatsoever about the magistrate's power to make the order that he did make and, in my judgment, given what he says in his reasons about his apprehension concerning the appellant's possible future behaviour towards the chef and (despite the lapse of time between the incident and the making of the order) the magistrate cannot be criticized for making it.

11. The questions that do arise however are these. Did the magistrate adopt the proper procedure in making his order? Was he obliged to obtain the appellant's consent before making it and/or to invite submissions from the appellant or his legal representative as to why such order should not be made?

12. The appellant tells me that, insofar as he can recall, at no time did the magistrate address him directly concerning the proposed binding over order prior to its imposition and that, if (as both the magistrate and the transcript confirm) the magistrate indicated his intentions to the appellant's lawyer, that intention was not immediately communicated to him by the lawyer and his instructions were not sought on the matter in the sense that he was not asked if he wished to show cause why he should not be bound over. The appellant tells me that if he had been he would have objected to what was being suggested or proposed.

13. When this appeal first came before me last week I called for a transcript of proceedings relating to the making of the order. I now have that transcript the relevant parts of which read as follows :

"COURT : Now, ..., notwithstanding the defendant's acquittal, I am contemplating a bindover over. Is there anything you want to say as to that?
[COUNSEL] : I have nothing to add, Sir.
COURT : [Proceeds to tell the appellant directly why he is being bound over; the terms of the order and its effect]
Now, the net result of today is that you have no conviction, there is no sentence, there is no penalty, but I have put in place this measure for the reason I explained to you.
Do you understand the things I have said to you?
DEFENDANT: I understand. I ...
COURT: You talk to your lawyer. No, ..., go and see what he's got...
[COUNSEL] : Yes, I'll explain to him again the meaning of 'bindover'.
COURT : Well, find out if that's his only problem. I'm not here to have an exchange all afternoon but if he's got some matter that's worrying him...
[COUNSEL] : Indeed.
COURT : ...and you can't resolve it, I'll do it now. But just have a quick check with him. See ...
[COUNSEL] : Indeed.
COURT : ... what his problem is, will you?
(Counsel confers with defendant in body of court)
[COUNSEL] : I explained to him something about the bail and the $1,000. No other matters.
COURT : All right. I was going to go on to say that after you have signed the form downstairs, the matter will be all finished and you can then collect your bail money back. I understand now that has been of concern to you.
So, to put it simply, you pay no money today. You just sign the form promising to pay if the matters I referred to should happen over the next
...

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