PUN CECIL v. KOWLOON CITY MAGISTRACY

HCAL58/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.58 OF 2006

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REASONS FOR JUDGMENT

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1.  The applicant applies to judicially review the sentences passed on him in the Kowloon City Magistracy on 3 February 2006.  At the hearing on 26 May 2006, I allowed the application.  My reasons appear below.

The Facts

2.  On 2 March 2005, the applicant was convicted after trial in the Kowloon City Magistracy in case no. KCCC72/2005 of three charges of (i) assaulting a police officer, (ii) resisting a police officer, and (iii) failure to produce proof of identity on demand.  On 6 April 2005, the applicant was sentenced in respect of these convictions to 60 hours of community service (“the CSO”).

3.  On 3 January 2006, the supervising probation officer laid a complaint in the Magistracy against the applicant for breach of the CSO.  The complaint was twofold.  The first was that the applicant had refused to perform community service and he had thus far only carried out eight hours of service.  The second was that he had on 12 and 26 July 2005 twice failed to attend interviews with the supervising probation officer.

4.  In consequence of the complaint, a warrant of arrest (not backed for bail) was issued. The applicant was arrested and brought before a Magistrate in the Kowloon City Magistracy on 13 January 2006.  He was not legally represented.

5.  It transpires from the transcript of the hearing that the applicant disputed the complaint against him.  In particular, he claimed that the supervising probation officer had not asked him to attend interviews.  On hearing this, the Magistrate adjourned the matter to 3 February 2006 and called for a further probation officer’s report.  The applicant was remanded in jail custody.

6.  On 3 February 2006, the matter came before another Magistrate.  It is clear from the transcript of the hearing that the Magistrate mistakenly thought the previous Magistrate had already found the applicant to be in breach of the CSO.  He proceeded to deal with the breach of the CSO.  He revoked the CSO and sentenced the applicant on the three offences afresh.  For the offences of (i) assaulting a police officer and (ii) resisting a police officer, he sentenced the applicant to two months’ imprisonment each, to run concurrently.  In respect of the third offence of failing to produce proof of identity on demand, he fined the applicant $200.

7.  The applicant had not appealed against the order.  He had served the prison term and paid the fine.

The judicial review application

8.  On 2 May 2006, the applicant commenced these judicial review proceedings.  He acts in person.  His application for legal aid was refused.

9.  In his Form 86A, the applicant complained that the two Magistrates had not properly dealt with his case.  He also complained that the hearings were unfair in that he was arrested and taken into custody, thus could not produce documents he had at home to substantiate his case.  He further said he did not have the opportunity to prepare his defence because he only learnt of the probation officer’s complaint at the hearing.  The applicant asked for an order of certiorari.

10.  At my request, the Secretary for Justice represented by Mr Lai SGC appeared at the hearing on 26 May 2006.   There are principally two areas that I invite assistance from the Secretary for Justice.  The first is whether it is appropriate for the applicant to proceed by way of judicial review.  The second is whether the sentence imposed on 3 February 2006 has a proper legal basis.

11.  In his helpful written submissions, Mr Lai analyses the legal position and concedes that leave for judicial review should be granted to the applicant.

12.  Further at the hearing on 26 May 2006, Mr Lai agreed, in my view sensibly and fairly, that the court should proceed to deal with the substantive judicial review application and to allow it.

The sentences passed on 3 February 2006

13.  As accepted by Mr Lai, the sentence passed on 3 February 2006 is irregular.

14.  Under section 6(1) of the Community Service Orders Ordinance, cap. 378 (“the Ordinance”), an offender who has been placed under a community service order is required to perform unpaid work as directed by his supervising probation officer and to comply with all reasonable directions given by the said officer.

15.  Section 8(3)(a) of the Ordinance further provides as follows:

“If it is proved to the satisfaction of the magistrate before whom an offender appears or is brought under this section that he has failed without reasonable excuse to comply with section 6(1) the magistrate may, without prejudice to the continuance of the order, impose on him a fine not exceeding $1000 or may-

(a)     if the community service order was made by a magistrate revoke the order and deal with the offender, for the offence in respect of which the order was made, in any manner in which the offender could have been dealt with for that offence by the magistrate who made the order if the order had not been made”.

16.  Accordingly, the power of a magistrate to revoke a community service order and to deal with the offences afresh can only be exercised when it is proved that the offender has failed without reasonable excuse to comply with the community service order and/or the reasonable directions of the supervision probation officer.

17.  In the case of the applicant, it is evident from the transcripts of the two hearings on 13 January and 3 February 2006 that he disputed the supervising probation officer’s allegations against him.  There was however no adjudication on the dispute or any finding that the applicant had failed to comply with the CSO and/or the supervising probation officer’s directions, and that such failure was without reasonable excuse.  In the circumstances, the power under section 8(3) of the Ordinance has not been engaged.  The sentence imposed on 3 February 2006 is devoid of legal basis and should be quashed.

Appeal versus judicial review

18.  Under section 113(1) of the Magistrates Ordinance, cap.227, “Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, … to a judge.”

19.  It is thus open to the applicant to lodge an appeal against the order of the magistrate made on 3 February 2006.  This is so even where the order was initially a nullity: see Yeung Siu Keung v. HKSAR (unreported) FACC 7/2005, 13 March 2006 at paras. 17-21.  However for reasons not explained to this court, the applicant had not appealed.  The time for appeal has long expired.

20.  It is trite law that judicial review is a discretionary remedy of the last resort.  Generally speaking, where an applicant has alternative remedy, he should not resort to judicial review.  Save in exceptional circumstances, he is expected to exhaust the other alternatives.  

21.  In R v. Hereford Magistrates Court, ex parte Rowlands [1998] QB 110 at 123, Lord Bingham of Cornhill CJ said:

“While we do not doubt that ex parte Dowler [1997] QB 911 was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates’ court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court.  So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates’ courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts.  The crucial role of the magistrates’ courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained.

Two notes of caution should however be sounded.  First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates’ court.  Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates’ courts as of all other courts.  This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown.  Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one.”

22.  In the present case, having regard to the fact that the time for appeal has expired and the applicant had served the sentence, and that there is plainly an irregularity in the proceedings in the Magistrate court, I agree it is appropriate to allow the applicant to proceed with the judicial review application.

Relief

23.  It follows from the foregoing analysis that the applicant should be given leave to judicial review, and that his application should be allowed.  What needs to be considered then is the relief to be granted.

24.  The applicant only asked for an order of certiorari in the Form 86A.  There can be no doubt that he is entitled to the relief such that the order of the Magistrate made on 3 February 2006 should be quashed and set aside.  The necessary consequence is that the $200 fine paid by the applicant should be refunded to him.

25.  At the hearing, the applicant additionally asked for an order remitting the complaint of breach of the CSO to the Magistracy for determination.  It would appear from the applicant’s submissions that he was dissatisfied with the Community Service Orders Office and the Social Welfare Department and he had written to complain about it.  The applicant claimed that his complaints were not responded to.  He was hoping to raise them at the hearing of the complaint of breach of the CSO.  He also hoped that with a determination on the complaint of breach of the CSO, his grievance and complaint would receive proper attention.

26.  As noted above, judicial review is an exceptional and discretionary remedy.  While I acknowledge that the court has power under Order 53 rule 9(4) of Rules of the High Court to remit the matter to the Magistracy for disposal, I do not consider that in the proper exercise of my discretion, this power should be exercised.

27.  An important consideration in my exercise of the discretion is that the CSO, which only had a duration of 12 months, had already expired on 5 April 2006 and ceased to be in force: see section 7(b) of the Ordinance.  The matter is therefore stale.  An adjudication of whether there was non-compliance with the CSO and/or the directions of the supervising probation officer will not serve any useful or practical purpose.   In particular, it is most likely that the magistrate hearing the matter will not make any further order given that the CSO is no longer in force.  On the other hand, considerable time and resources will have to be incurred if there were to be a full hearing on the matter in the Magistracy. 

28.  Moreover, it is most unlikely that the applicant’s dissatisfaction or grievance about the Social Welfare Department and/or the Community Service Orders Office can be resolved at the hearing.  After all, proceedings in the Magistracy are not an appropriate avenue for dealing with the applicant’s dissatisfaction or grievance about the performance of government department or authority.

29.  I am conscious that the applicant had served the sentence.  The outcome of this judicial review has shown the sentence was passed without proper basis.  A full hearing to determine whether the applicant was in breach of the CSO is, in the circumstances of this case, not warranted.  I therefore exercise my discretion against an order to remit the matter back to the Magistracy for disposal.

Costs

30.  Applying the normal rule of costs follow event, the applicant should have the costs of this judicial review application.  The applicant indicated he had incurred a total of $1,141.50.  Mr Lai does not oppose it.  I therefore made a gross sum costs order in the amount indicated.

31.  Subsequent to the hearing, the applicant wrote in on 30 May 2006 requesting to vary the amount of the costs order.  In that letter, he referred to other expenses that he had incurred that he had omitted to mention at the hearing, including the costs of obtaining the transcript and document from the Magistracy, and new quantification.  In summary he asked to vary the amount to $2,854.  Upon my invitation for comments, Mr Lai by letter dated 5 June 2006 indicated there is no objection to the request for variation.

32.  In the circumstances, I will allow the request for variation.  As to the revised amount, as there is no challenge to it, I will treat it as an agreed amount of costs, without regard to the breakdown and quantum given in the applicant’s letter dated 30 May 2006. 

33.  However, I feel obliged to point out for the applicant’s benefit that had the amount not been agreed such that the court is called upon to assess the amount, then the court would not have: (i) allowed the applicant’s costs for drafting, preparing and attending the hearing on time basis,  (ii) adopted the scale costs for making visits to court or Legal Aid Department for filing and service purposes, or (iii) allowed photocopying at $5 per page. 

34.  This is because, firstly, the applicant is not employed and admittedly suffered no loss of income in respect of the time he claimed to have spent on drafting documents, preparing and attending the hearing.  Secondly, for the same reason that he has no actual loss of income and additionally as he is not legal represented, the scale costs for attending to filing and service is not applicable.  The applicant can only claim disbursements for travelling expenses actually incurred.  Thirdly, $5 per copy is undoubtedly excessive for photocopying charges.  Even adopting the scale under Order 62 of Rule of the High Court, it is only up to $3 per copy.   It must be stressed that the fact that the revised amount is agreed on this occasion does not afford a precedent as to how costs should be assessed.  Assessment of costs is governed by Order 62 of Rules of the High Court and decided cases, including the recent Court of Appeal decision in 霍兆榮 訴 廉政公署  (unreported) CACV 341/2005.  

Conclusion

35.  The orders I make are:

(1) The applicant is granted leave to judicial review.

(2) The application for judicial review is allowed.

(3) The order and sentence imposed by the Magistrate in case no. KCCC72/2005 on 3 February 2006 is quashed.

(4) The fine of $200 paid in consequence of the said order be remitted to the applicant.

(5) The respondent shall pay the applicant the costs of the judicial review application assessed at the sum of $2,854.