ATTORNEY GENERAL v. B. R. PATERSON-TODD ESQ. PERMANENT MAGISTRATE

Headnote

                    The Attorney-General may apply under Section 88 of the Magistrates Ordinance to transfer the hearing of a charge or complaint in respect of an indictable offence from the Magistrates to the District Court at any time up to the announcement by the Magistrate of his decision to convict or acquit and once the application is made in due form the Magistrate is bound to make an order of transfer.

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JUDGMENT

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1. This is an application for judicial review made with leave of Mr. Justice Mayo in relation to a decision by a Magistrate sitting at Fanling Magistracy on the 9th of May 1985 when he declined to accede to an application made by the prosecution for the transfer of a criminal trial to the District Court. The Defendant who had appeared before the learned Magistrate at some earlier date had pleaded not guilty to a charge of blackmail, which is an indictable offence, and between the date of the plea being taken and the date of the Magistrate s adjudication which is complained of, advice had been taken as a result of which on 9th of May the application was made under Section 88 of the Magistrates Ordinance. That section reads in its material parts as follows :-

"whenever any person is accused before a Magistrate of any indictable offence, not included in any of the categories specified in part III of the Second Schedule, a Magistrate upon application made by or on behalf of the Attorney-General shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court. "

2. The section goes on to provide that the application may be made either orally in open court or in writing and Sections 89 and 90 prescribe the practice to be followed on the making of an order of transfer.  Now the learned Magistrate took the view which is the traditional approach in Hong Kong, that once the proceedings were underway that is to say from the time that a plea had been taken. Section 88 had no application and that the correct course was for the Attnrney-General to enter a nolle prosequi and begin afresh if what he wished was to have the matter heard in a Court with greater powers of punishment. Notwithstanding that that has been the traditional view in Hong Kong, as I have been told most helpfully by Mr Cross who appears for the attorney-General, the question previously came before Deputy High Court Judge Nazareth in December last year. His view was that the section is couched in terms broad enough to allow the making of an application at any time at any rate up to the giving of a decision and he found nothing in the Section or elsewhere in the Ordinance to inhibit the making of the application. Nor was it possible on that occasion for whoever made the application before Deputy High Court Judge Nazareth or, for that matter, whoever appeared in opposition to it, to show any authority in support of what had been up to then the traditional view and Deputy High Court Judge Nazareth, if I may respectfully say so, correctly regarded the terms of the section as mandatory, leaving no residual discretion to the Magistrate once the Attorney-General had decided to make and did make the application in due form. Clearly once a decision has been announced by a Magistrate, it is too late for the application to be made because by that time the Magistrate is functus officio and in any event it would I think be right to say that whether acquitted or convicted the Defendant no longer occupies the role of an accused person, and it is only in relation to an accused person that section 88 has any application. So, this being an indictable offence not excluded specifically under the terms of the Ordinance, once the application was made in due form the Magistrate was bound to transfer. In not doing so, the learned Magistrate was in error. In the light of previous practice in Hong Kong, one has every sympathy with the view which he took and one would have had even greater sympathy had he not been referred at the time to the decision of the Deputy High Court Judge Nazareth. Nevertheless he declined to order a transfer and instead, perhaps rather curiously, adjourned the hearing without inviting the prosecution to continue on that or on some subsequent day. Therefore. I think it is right in the circumstances that the application for judicial review should be granted. It is only necessary, I think, to give a relief in the terms of sub-paragraph (b) of the application which is for an order of Mandamus directing the learned Magistrate to make an order transferring the case to the District Court under section 88 of the Magistrates Ordinance and I do so order and direct.