THE ATTOENEY GENERAL v. LI CHI WING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 949 OF 1988.

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J U D G M E N T

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   This is an appeal by way of case stated under the provisions of section 105 of the Magistrates Ordiance.

1. The case stated is in the following terns:

"1 . At the Magistrate's Court in the said Colony on the 15th day of February 1988, an information preferred by the Appellant against the Respondent, charging that the Respondent did drive a motor vehicle, namely a public bus displaying registration mark BX2347 on a road carelessly contrary to section 38(1) of the Road Traffic Ordinance ,Chapter 374, was listed to be tried by me. The Appellant made an application to adjourn the hearing on the ground that the key witness for the Appellant, LIU Kai-cheung, whose complaint had triggered the prosecution, was not available to attend the trial. The Respondent, who was then present and represented, did not oppose this application for an adjournment but applied for costs by way of compensation and upon such hearing it was adjudged by me that the hearing be adjourned and costs be reserved to the conclusion of the matter.

2. And whereas on the 24th day of March 1988, the said information was heard and determined by me, the said parties respectively being then present and represented; and upon such hearing the case was dismissed by me at the close of the Prosecution case and the respondent was found not guilty of the said charge. The Respondent made an application for  costs in respect of the adjourned hearing. The applicaton was acceded to and I ordered that the said witness, LIU Kai-cheung, should pay costs for $3,500 to the Respondent.

3. And whereas on the 1st day of June 1988, the Appellant sought, under section 104 of the Magistrates Ordinance, Chapter 227, to review my determination in relation to the said order for costs made against the said witness and upon such hearing, the said parties respectively being then present and represented, the review was refused and the said order for costs was confirmed.

4. And Whereas the Appellant, being dissatisfied with my determination upon the hearing of the application for costs for the said adjournment and upon the said review, and alleging himself to be aggrieved by such determination as being erroneous in points of law has, pursuant to section 105 of the Magistrates Ordinance, Chapter 227, duly applied to me in writing to state and sign a case setting forth the facts and grounds of such determination as aforesaid, in order that he may appeal therefrom to a judge of the High Court.

5 . Now therefore I, the said Magistrate, in compliance with the said application and the provisions of the Magistrates Ordinance, Chapter 227, do hereby state and sign the following case.

2. CASE

6.    Upon the hearing of the Respondent's application for costs of the said adjournment it was shown on the part of the Appellant or admitted by the Respondent that and found as a fact that:

6.1    The said witness for the Appellant, LIU Kai-cheung, had written to the Court a few days prior to the hearing date explaining that he was unable to obtain leave from his employer to attend court.

6.2    The said witness had genuine grounds for his absence in court as he was urgently required at his job during the Lunar New Year season.

6.3    The Appellant was not at fault as he had not had sufficient warning of the unavailability of the said witness and the witness summons had been properly served thereupon;

        6.4     The Appellant could not be said to have instituted the proceedings improperly;

7.    I, being of the opinion that whilst the said witness should not be punished under section 21 of the Magistrates Ordinance, Chapter 227 which provision does not benefit the Respondent in any event, he, being the complainant, should be made to compensate for the substantial costs incurred by the Respondent as a result of the said adjournment which had been brought about by the said witness through no fault of the Respondent I accordingly ordered, after due enquiries had been made as to the costs incurred by the Respondent in relation thereto, that the said witness should pay $3,500 by seven monthly instalments of $500 each to the Respondent pursuant to section 20(2)(a) of the Magistrates Ordinance, Chapter 227.

8.    Upon the hearing of said review it was contended on the part of the Appellant that a prosecution witness is neither a complainant nor an informant when the prosecution is brought by -the Crown and accordingly the witness cannot be ordered to pay costs under section 20(2)(a) of the Magistrates Ordiance, Chapter 227. I being of he opinion that although the prosecution was brought by way of laying an information the said witness was a complainant in the broad sense and that the Respondent could only be compensated under section 20(2)(a) of the Magistrates Ordinance, Chapter 227 for the lass which resulted from the said adjournment through no fault of his, confirmed my previous order in realtion to costs made against the said witness.

9. The questions of law arising from the above statement for the opinion of this court therefore are :

FIRSTLY WHETNER I was correct in holding that, where proceedings are brought by the Crown in the capacity of informant, the prosecution witness whose complaint originally triggered the proceedings can still be construed as a complainant within section 20(2)(a) of the Magistrates Ordinance, Chapter 227;

SECONDLY WHETHER I was correct in holding that a defendant is entitled to costs resulting from an adjournment against a particular witness whose non-attendance occasioned the adjournment.

3. Mr Stephen Wong who appears for the Attorney General submits as follows

"1. A Magistrate has no inherent jurisdiction to award costs on adjournment and thus may only do so in, pursuance of the express statutory powers granted under the limited circumstances set cut in s.20 of Cap. 227,

2. The order of costs must only be made to compensate the expenses incurred against the party who is at fault and a Magistrate has no power to inflict a penalty in the guise of costs.

3. As the Magistrate accepted that the Crown was not at fault in occasioning the adjournment and not improper in bringing the proceedings he quite correctly did not involve ss.20(2)((b) or 69 of Cap. 227.

4. As the Magistrate accepted the explanation given by the prosecution witness and found that he could not be criticized in the sense that he should be punished, he quite correctly did not invoke s.21 of Cap. 227.

5, A prosecution witness is not a 'complainant' nor an 'informant' within the meaning of s.20 of Cap.227 where the proceedings are instituted at the instance of the Crewn ,

6. S,20(2)(a) of Cap. 227 must be construed narrowly and the legislature does not intend a general power to award costs on granting an adjournment - 'witness' is used or included in other sections of the Ordinance but not in s.20.

7. The Magistrate erred in law in construing the 'prosecution witness' as a 'complainant' within the meaning of s.20(2)(a) of Cap. 22.7 and accordingly the order of costs made, against the prosecution witness was in excess of his power.

8. The Magistrate erred in law in making the order of costs against the prosecution witness in that the order was in the circumstances a penalty in the guise of costs."

4. He has referred me to the distinction between an information and complaint as it appears in Halsbury's Laws of England, Vol. 29, para. 315 at p.176. He has also referred to the cases of Chan Hak-wah v. R [1960] HKLR 201 and AG v. IP Wai-kwong [1982] HKLR 93.

5. I did not find these references any assistance in construing the word 'complainant' in the Magistrates Ordinance.

6. The Respondent who appears before me in person does not raise any legal argument but points out that he has incurred costs in excess of $8,000.

7. Under s. 19 of the Interpretation and General Clauses Ordinance, Cap. 1, the courts are enjoined to give such fair, large and liberal construction and' interpretation to the Magistrates Ordinance as will best ensure the attainment of the object of that Ordinance according to its true intent, meaning and spirit.

8. Looking at the Magistrates Ordinance as a whole, and the way in' which the words "complaint", "complainant", "information" and "infarriant" have been used in various sections throughout the Ordinance, which are too numerous to set out I have reached the firm conclusion that the words "complainant" and "informant" refer to the person who initiates the proceedings in the Magistrates Court, whether by making a complaint or laying an information. These words do not refer to a witness who may have brought the matter to the attention of the complainant or informant, but who did not initiate proceedings himself.

9. I sympathize with the magistrate who was trying to compensate the respondent for the costs which he had incurred, but I cannot agree to his interpretation of the section concerned.

10. Both questions should therefore be answered in the negative.