ATTORNEY GENERAL v. M.P. NUNNS, ESQ., PERMANENT MAGISTRATE AND ANOTHER

HEADNOTE

                Consequences of an invalid transfer of proceedings from a Magistracy to the District Court.

HELD.

                If a magistrate exceeds his jurisdiction on an application for a transfer, he can still validly make an order subsequently if the case is referred back to him.

                In the present proceedings it was necessary to issue an order of certiorari quashing the original transfer and issuing a Mandamus requiring another magistrate to hear subsequent proceedings which were instituted.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 571 OF 1987

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JUDGMENT

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1. The Attorney General is seeking the judicial review of an order made by the 1st Respondent on the 5th of November 1986. The 1st Respondent made an order transferring a criminal case being Fanling Magistracy Case No. 12450 of 1986 to the District Court on the application of the Attorney General pursuant to Section 88(1) of the Magistrates Ordinance Cap. 227. The Attorney General is seeking an order of Mandamus against the 2nd Respondent requesting him to proceed to hear and determine Fanling Magistracy Case No. 1255 of 1987. Although both Respondents were served with the requisite papers neither of them attended before me to seek to persuade me not to grant the relief which is sought.

2. The Defendant in Fanling Magistracy Case No. 12450 of 1986 first appeared before the 1st Respondent in the Fanling Magistracy on the 15th of October 1986. He was charged with uttering forged banknotes contrary to Section 74(1) of the Crimes Ordinance Cap. 200. The case was adjourned to first the 29th October 1986 and then the 5th of November 1986. The Defendant was remanded in custody during this period.

3. On the 5th of November the Attorney General applied to transfer the case to the District Court. It is clear that this application should never have been made. It is provided in Section 70(1)(c) of the Crimes Ordinance Cap. 200 that the maximum penalty for this type of forgery is life imprisonment. Accordingly, by virtue of para. 2 of part 3 of the second schedule of the Magistrates Ordinance Cap. 277, the case is not a case which can be transferred to the District Court.

4. It is equally clear that a charge under Section 70(1)(c) cannot be heard in the District Court by virtue of the provisions contained in Section 75(2) of the District Court Ordinance Cap. 336.

5. The case came before Rattigan D.J. on the 19th of January 1987. Crown Counsel who appeared submitted to the Court that it had no jurisdiction to hear the case. Rattigan D.J. seems to have seen some force in Crown Counsel's submissions and purported to remit the case back to Fanling Magistracy.

6. The case then came before the 2nd Respondent on the 20th of January. He took the view that he had no jurisdiction in the matter. He did, however, enlarge the Defendant's bail.

7. On the 27th of January, Crown Counsel appeared before Rattigan D.J. and sought to enter a nolle prosequi. Rattigan D.J. declined to exercise jurisdiction and made no order. On the same morning, Crown Counsel appeared before the 2nd Respondent and likewise sought to enter a nolle prosequi. The 2nd Respondent also refused to exercise jurisdiction on the ground that he could not be seized of the matter in the circumstances.

8. In the afternoon of the 27th of January, the Defendant was rearrested and again charged with the offence. The fresh charge was numbered 1255 of 1987. He was immediately brought before the 2nd Respondent who declined to deal with the case.

9. The Attorney General applied for a Review of the 2nd Respondent's decision under Section 104 of the Magistrates Ordinance Cap. 227. The 2nd Respondent reviewed his decision and delivered judgment on the 24th of February. He upheld his original determination of the matter.

10. The first question I must consider is what was the effect of the order made by the 1st Respondent on the 5th of November?

11. Here guidence can be sought from R. v. West ⁽¹⁾ where a similar type of problem arose. I have no doubt that the 1st Respondent did not have jurisdiction to make the order transferring the case to the District Court. Equally, it seems to me from a passage appearing on page 312 of R. v. West that where the Magistrate acted in excess of his jurisdiction, he was then competent to exercise his jurisdiction properly. That seems to me to exactly correspond with the present situation.

12. This being the case I consider that Rattigan D.J. was correct in declining to exercise his jurisdiction when the case came before him in the District Court. Equally the Attorney General's action in attempting to enter a nolle prosequi before him was misconceived.

13. As I have already indicated the 1st Respondent's order transferring Case 12450 to the District Court on the 5th of November was clearly wrong. I consider that the most appropriate way of rectifying the position is to grant an order of certiorari quashing the said order.

(1) [1962] 46 Cr. App. 296

14. For the reasons I have given above, the case should have remained in Fanling Magistracy. When the Attorney General attempted to enter the nolle prosequi this was the correct course to adopt and indeed by its nature, the nolle prosequi hecame effective when it was placed before the 2nd Respondent on the 27th of January.

15. This leads me to the conclusion that when the Defendant was charged on the same day in the Case 1255 of 1987, this was a valid and effective proceeding. Having regard to the reasons which were given by the 2nd Respondent in his judgment on the Review, I consider it to be necessary to make an order of Mandamus in the terms sought in the application.

16. I grant the relief which is sought against both Respondents.