THE QUEEN v. LEE KAM CHUEN

-----------

__________

JUDGMENT

__________

1. On 11th December, 1985 this Court made an order remitting this matter to the High Court with a direction that the appeal be heard. The Court now gives reasons for the order.

2. On 15th March, 1985 the Appellant was convicted by the North Kowloon Magistrates Court of two offences, one of accepting an advantage contrary to Section 4(2)(a) of the Prevention of Bribery Ordinance Cap. 201 and one of attempting to pervert the course of justice. He was fined $1,500 and $2,500 respectively. The same day he appealled against these convictions and the appeals were set down before Deputy Judge Cruden on 8th July,1985. The Appellant's application for an adjournment in order to instruct counsel was granted.

3. The new date was 21st August. Notice had been sent by Registered Mail to the Appellant 's address on 12th August. As will be seen he did not receive the notice so that when the appeal was called on before Deputy Judge Hopkinson (as he then was) he did not appear and he was not represented. Crown Counsel invited the Judge to dismiss the appeal. On being satisfied that the notice of hearing should be 'deemed' to have been served upon and received by the Appellant in pursuance of Section 115(3) of the Magistrates Ordinance Cap. 227 Deputy Judge Hopkinson dismissed the appeal.

4. In fact the notice of hearing had not been delivered to the Appellant in the ordinary course of post. A message asking him to collect a registered package from the post office had been left at his address. He collected the notice from the post office on the day his appeal was dismissed.

5. On 9th September the Appellant's solicitors wrote to Deputy Judge Hopkinson's clerk setting out the above accepted facts which showed that the Appellant had not received the notice, was not aware of the hearing and had not abandoned his appeal.

6. Following well established practice Deputy Judge Hopkinson ordered that the appeal should be relisted so that it could be heard on the merits. The relisted appeal came before Bewley, J. Mr McCoy now appeared for the Crown and he took the point that on 21st August Deputy Judge Hopkinson had made a final order dismissing the appeal, that therefore the Court was 'functus officio' and could not hear the appeal on its merits. Faced with this surprising proposition Bewley, J. decided that the point of law as to whether the Court was 'functus officio' should be reserved for the opinion of this Court under Section 118(1)(d) of the Magistrates Ordinance.

7. The point is of importance. If Counsel for the Crown is right this Appellant will be deprived of his appeal through no fault of his own, a long standing perfectly satisfactory practice of the High Court in dealing with appeals must come to an end and injustice to this Appellant and many others will result; there being no appeal from the single judge to the Court of Appeal.

8. Deputy Judge Hopkinson did not set out the grounds upon which he made the order dismissing this appeal, nor did he specify the exact nature of the order. It was unnecessary for him to do so. Both are clear from the surrounding circumstances and the well known practice of the Court.

9. The order was made on the non-appearance of the Appellant, notice having been 'deemed' to have been served and received under the provisions of Section 115(3) of the Magistrates Ordinance. Although the word 'deemed' may bear different meanings according to its context, as used in this section it raises a presumption but a rebuttable presumption. Much clearer language would be required in the context of such an important provision to raise an irrebuttable presumption. Compare the words 'conclusively presumed' in Section 5(2) of the Fixed Penalty (Criminal Proceedings) Ordinance Cap. 240. In the circumstances it is not necessary to consider the effect of Section 8 of the Interpretation Ordinance Cap. 1 upon this section although we do not doubt that Section 115(3) is subject to the provisions of Section 8.

10. Having made the presumption that service had been effected the learned Deputy Judge made the order on the further rebuttable presumption that the non-appearance of the Appellant indicated his abandonment of his appeal. There was no further enquiry (nor was such indicated) as to the reasons for the Appellant's non-appearance.

11. There was therefore no consideration of the merits of the appeal. The order was made on a procedural basis against the background that if it later transpired that there was no foundation in fact for the order a hearing on the merits would take place.

12. The question is whether the learned Judge's order was a final one, disposing of the appeal once and for all without the merits ever being heard or was it an order made provisionally, leaving it open to the Appellant to apply to have it set aside if the presumptions made about service and abandonment of his appeal was incorrect?

13. The circumstances themselves provide a clear answer to the question. The argument that the order of 21st August finally disposed of the appeal is untenable. In short, the learned Judge never intended it to be final (he would not have accepted counsel for the Crown's invitation to make a final order); it was not understood by any party to be final; it was made procedurally without a hearing on the merits; it was made in the knowledge that this Appellant would apply for a hearing on the merits if the presumptions upon which it was founded were incorrect; there was no basis upon which a final order could have been made; and, if the learned Judge had purported to make a final order it would have been a nullity.

14. The principle that a court may not re-open proceedings once it is 'functus officio' save in extra-ordinary circumstances is not in doubt. The authorities on 'functus officio' which the Court has been invited to consider are not relevant to the instant case.

15. In the course of argument the court's attention was drawn to its inherent power to avoid irremedial injustice by reconsidering what otherwise would be a final order after serious administrative error by the court itself. See R. v. Daniell 1977 1 Q.B. 364. The court accepts Crown Counsel's submission that there were no such errors in this case and it is not necessary to consider any inherent powers which the Court may possess.

16. Counsel for the Grown drew the court's attention to the fact that no time limits for notices of the hearing of Magistrates' appeals are provided in Section 116(1) of the Magistrates Ordinance. On the other hand neither Counsel suggested that any practical difficulties were arising in relation to the length of notice given. If any practical difficulty arises from short notice of hearings this can (and no doubt will) be dealt with by the appeal Judge.

17. There is one final matter. In considering whether to accept that a notice of hearing should be deemed to have been served and received under Section 115(3) of the Magistrates Ordinance it is the duty of Counsel for the party present to satisfy the Judge of the requisite matters, especially about time of delivery in 'ordinary course of post'. The instant case may indicate that registered mail is not always delivered 'in the ordinary course of post'.

18. The opinion of this court is that the High Court is not 'functus officio' in relation to this appeal and the court directs that the appeal should be heard on its merits.