THE ATTORNEY GENERAL v. G. WATSON, ESQ., PERMANENT MAGISTRATE

Action No. M.P. 350/86

 

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HEADNOTE

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                 S.105 of C.227. Are forfeiture proceedings under S.27 of the Import and Export Ordinance, Cap. 60 sufficiently "related to" or "connected with" an offence as to enable the Attorney General to require a magistrate to state a case under S.105?

HELD. They are and that a mandamus would issue requiring the magistrate to state a case.

1986 M.P. No. 350

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. The Attorney General is seeking the judicial review of a decision of the Respondent who is a magistrate for his refusal to state a case on the Attorney General's application for this. The Respondent had declined to make a forfeiture order pursuant to the Import and Export Ordinance, Cap. 60 and by virtue of the provisions contained in section 105 of the Magistrates Ordinance, Cap. 227 the Attorney General applied to the Respondent to state a case. The Attorney General is applying for an Order of Mandamus requiring the Respondent to accede to his application.

2. Mr Edward Chan who was acting as amicus curiae raised a preliminary point. He argued that it was evident from the papers which were lodged in support of the application for leave under Order 93 that the Attorney General was placing reliance upon an application for review dated the 15th October 1985. As the hearing of the application for forfeiture was on the 3rd August 1985 there had been non-compliance with the time limit of 14 days referred to in section 105. Mr Chan submitted that it was not open to me to take cognizance of a supplemental affidavit which had been filed by Mr Peter Cahill on the 25th February which contained an explanation for the apparent delay. It was evident from the contents of this affidavit that the application had been made timeously but that it had been necessary to amend it so as to accurately reflect the status of the Attorney General. I regret that I do not see much merit in Mr Chan's submission and I am satisfied that there is no good reason why I should not make reference to Mr Cahill's affidavit. This being the case I am able to deal with the substantive issues.

3. I think that it may be helpful to set out in full the reasons which were given by the Respondent for declining to state the case.

"The Honourable the Attorney General as 'intervener' has requested myself to state and sign a case.

Section 105 of the Magistrate Ordinance, Cap.227 contains the statutory authority for such application and the relevant part reads: -

'Forfeiture' proceedings are civil proceedings - there is no complainant or informant - and do not 'relate to' nor 'connected with' an offence although should such an offence have been committed in relation to the goods then such criminal proceedings may be used in evidence in the civil proceedings.

A.G. v. D.A. Davies (1970) HKLR 203 considered. The application is therefore denied.

4. I do not think there is any merit in the Respondent's contention that the Attorney General is not entitled to participate by virtue of forfeiture proceedings being civil proceedings. The fact that the proceedings may be of a civil nature would seem to me to be entirely irrelevant.

5. The central issue which has to be determined is whether forfeiture proceedings relate to or are connected with proceedings which may be taken under the Import and Export Ordinance, Cap.60. Section 27 of Cap.60 deals with forfeiture.

"27(1) There shall be liable to forfeiture

 

 

whether or not any person has been convicted of an offence in respect of such contravention. "

It is also pertinent to have regard to the definition of "offence" contained in section 3 of the Interpretation and General Clauses Ordinance, Cap.1.

"Offence' includes any crime, treason, felony or misdemeanour and any contravention or other breach of, or failure to comply with, any provision of any ordinance, for which a penalty is provided;"

It will be noted that the definition is couched in wide terms. Miss Hartstein for the Attorney General submitted that forfeiture proceedings must be closely connected with offences under the Import and Export Ordinance and accordingly the Attorney General must have a right to apply for a case to be stated.

6. Mr Edward Chan submitted that this was not the correct approach to the matter. He referred to I.T.P. (London) Ltd v. Winstanley⁽¹⁾ as authority for the proposition that the words "connected with" must be treated very carefully. In his judgment at p.178 Goddard, C.J. held that there must be some nexus between the matters being referred to and the words "in connection with" should be treated with care. I would however observe that the facts of I.T.P. (London) Ltd v, Winstanley⁽¹⁾ are very different to those in the present application.

7. Mr Chan placed particular reliance upon a passage at p.208 in the judgment of Rigby, C.J. in the A.G. v, D.A. Davies⁽²⁾. The magistrate in that case had fined a police officer who had failed to appear as a witness in a traffic case. The Attorney General had appealed against the fine and the question which had to be decided was whether fining the policeman related to or was connected with the traffic offence. Rigby, C.J. had this to say:

"The fine imposed upon PC 10092 was entirely independent of any issue for trial in the traffic charge and wholly unrelated to the facts of that charge. In my view, the words 'any person aggrieved' must mean - and only mean - a person who has suffered a legal grievance as the result of an order made; a person against whom a decision has been pronounced, which has wrongfully affected him. Nor, in my view, is the Attorney General assisted in so far as these proceedings are concerned by the latter part of the section, (i.e. section 105 aforesaid).  There are, from time to time, private prosecutions brought for a variety of offences which adversely affect the rights or interests of private individuals or registered companies, institutions or organizations e.g. infringement of patent rights, trespass etc. An order or determination by a magistrate in such a case may be a matter of public interest or concern " public policy, or even involve the correct interpretation of particular legislation. In such a case it may be a matter of public importance that the Attorney General should appeal in order to have the matter decided by a higher court, irrespective of any action taken by the original parties to the proceedings. I would venture to suggest that this part of section 105 is expressly designed to confer such a right of appeal. But the order here made by the magistrate was one purely incidental and wholly unrelated to the issues in the case before him; rightly or wrongly, it was summary action taken by him under what he considered to be the powers conferred upon him by section 21(2) or, alternatively, section 40 of the Magistrates Ordinance, for nonattendance of a witness at the proper time. It was an order made which personally affected, and only affected, PC 10092 and not the parties in the case. "

8. With the greatest respect I do not find myself in agreement with the views expressed by Rigby, C.J. His approach is far too restrictive. I do not think that he was justified in coming to a conclusion that the Attorney General's involvement was likely to be limited to cases where private prosecutions are brought. I consider the present case to be an obvious example of the type of situation where it is very much in the public interest that the Attorney General should be able to require a magistrate to state a case. I am satisfied that Miss Hartstein is right in her submission that forfeiture proceedings are undoubtedly closely connected with or related to offences under the Import and Export Ordinance and that the second limb of section 105 is applicable. It follows from this that the Respondent should have acceded to the application which was made by the Attorney General. He is accordingly entitled to the relief sought and an Order of Mandamus will issue. I will hear the parties on costs.

(1)    [1947] 1 AER 177

(2)    [1970] HKLR p.203