ATTORNEY GENERAL v. CHAN WING SHEUNG

BETWEEN:

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JUDGMENT

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1. This is a Case Stated at the request of the Attorney General by a magistrate under section 105 of the Magistrates Ordinance.

2. The respondent was charged with being in possession of a dangerous drug for the purpose of unlawful trafficking, contrary to section 7 of the Dangerous Drugs Ordinance.

3. The respondent first appeared in answer to this charge at the Magistracy on 2nd September, 1986, on which occasion no plea was taken. The case was adjourned until 11th September at 9.30 a.m. to enable the police to obtain the usual Government Chemist's Certificate which is tendered in support of charges of this nature. The respondent was granted cash bail of $750. The magistrate ordered that he should be remanded in prison custody if he failed to raise the necessary bail.

4. On 11th September at 10.54, the case was called. The prosecutor stated that the necessary case file was not available and the magistrate stood the case down to give her an opportunity to obtain it.

5. At 11.20, the duty lawyer, who had been retained to act for the respondent, reached the end of his list of cases and the prosecutor again said that the case file was not available and asked for an adjournment of the case until the following day. The duty lawyer told the magistrate that he had no objection to the day's adjournment but that his client had not been able to raise the necessary bail. The magistrate thereupon dismissed the charge for want of prosecution.

6. On 17th Septemeber, he refused an application by the Crown for a review of that decision.

7. The magistrate, in his case stated, explains his decision as follows -

"(iv) Notwithstanding the non-availability of the case file, be it temporary or otherwise, the next appropriate step to be taken by the court prosecutrix would be to ask for plea to be taken, if the Crown intended to proceed further with this prosecution.

 

(v) A defendant, particularly one who has been detained in custody owing to his failure to meet the bail requirement set by court, is entitled to be tried as expeditiously as possible when charged with a criminal offence.

 

(vi) If  I, on my own volition, were to ask the defendant to plead to the charge, I felt that I would have risked the impression that I had entered into the arena and taken up the role of court prosecutrix.

 

(vii) 1, being dissatisfied with the way in which the case was being prosecuted, decidea, after failing to obtain any reason from the respective parties why I should not so do, to dismiss the charge for want of prosecution and to discharge the Respondent accordingly."

8. The appellant bases his argument on two main grounds - firstly, that the magistrate improperly exercised his discretion by refusing to grant an adjournment and, secondly, that he should, in any event, have taken a plea from the respondent as required by section 19 of the Magistrates Ordinance.

9. The question of whether or not a magistrate should grant an adjournment at the instance of the Crown was considered by the Court of Appeal in Attorney General v. IP Chong-kwan & Others ⁽¹⁾. My attention has been drawn to two passages which are relevant to this appeal. At p.142, Mr. Justice Huggins observed -

 

"What is submitted before us is that the learned judge wrongly exercised his discretion in refusing an adjournment. It is well-established that an exercise of the discretion is a matter of law which can be challenged on appeal, but equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the order will result in injustice."

 

At page 143, Mr. Justice Huggins commented -

 

"I think that the learned judge was wrong and, that injustice did result from the course which he took. Justice must be done to the Crown as well as to the defence, although there is no doubt that the court will scrutinize the proceedings with particular care where the defendant may be prejudiced: but justice must be done to both sides. In my judgment justice was not done here and the appeal must be allowed."

 

10. In Attorney General v. CHEUNG Kam-lun ⁽²⁾, it fell to me to consider a case which, in some respects, is not dissimilar to this. In that case, a magistrate called on a charge during the course of the morning and was told that it was thought that a Crown Counsel was on his way to court to conduct the case. On the application of the defence, the magistrate dismissed the charge. Crown Counsel arrived a few minutes' later and applied to the magistrate to review his decision, which the magistrate refused to do.

11. During the course of my judgment, I said-

 

"I think that, when he was informed that Crown Counsel was on his way, the magistrate should have adjourned the matter, at least sufficiently long to enable Crown Counsel to appear and explain the matter to him."

12. As in that case, I am of the view that the discretion was exercised unreasonably by the magistrate, in the circumstances, and that the result of his order was to cause injustice to the prosecution.

13. Similarly, this was the first occasion on which an adjournment had been sought, other than the standard and necessary one for the obtaining of a Chemist's Certificate. The magistrate did not know why the case file was not available. I think he should have adjourned in order to find out what bad happened. In R. v. Birmingham Justices, ex parte Lamb ⁽³⁾, Wolf, J., at page 28 observed, when considering a case in which the justices had refused an adjournment and dismissed a charge -

"The explanation for what has happened is no doubt to be found in the fact that the pressure on the Bench in the Birmingham Magistrates' Court ......... is extreme. However, when exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, they must be just not only to the defendants but to the prosecution as well.'

14. The magistrate, in his Statement of Case, observes that, notwithstanding the absence of the file, it was the duty of the prosecutor to ask for a plea to be taken if the Crown intended to proceed further with the prosecution.

15. With respect to the magistrate, this does not accord with the normal practice, which is that, at the time set for the hearing of the case, a plea is taken from the defendant without any application for this to be done being required by the Crown. Section 19 of the Magistrates Ordinance provides that where the defendant is present at the hearing the substance of the complaint or the whole of the information shall be read over to him and explained, if necessary, and he shall be asked whether he admits or denies the truth of the complaint or information.

16. That is the course which, the magistrate should have followed, irrespective of whether or not the case file was available. Having taken such a plea, the right course would have been to grant an adjournment, at least until the Crown had had an opportunity to explain to him why the case file had not been available at the time fixed for trial.

17. The magistrate gives as a reason for failing to grant an adjournment his view that a defendant is entitled to be tried as expeditiously as possible when charged with a criminal offence. This is a general principle with which no one would disagree, but it is not one which entitles a magistrate to dismiss a charge, especially one of a serious nature such as that which the respondent faced, without hearing any evidence.

18. This, indeed, is a rule that is re-emphasized by the Birmingham Justices Case ⁽³⁾ to which I have referred, in which the Queen's bench Divisional Court said that the justices had no power to dismiss a charge without hearing any evidence because, in their view, it would be unjust or prejudicial to the defendant to continue the hearing. They could only reflect their sense of any injustice to the defendant by deciding that the charge had not been made out or by acquitting, or by imposing a light penalty.

19. The magistrate appears to have believed, that if he had asked the defendant to plead, this might have given an impression that he had entered the arena and taken up the role of prosecutor.

20. I do not regard this as a reasonable fear since it is, after all the court which puts any charge to a defendant.

21. For the reasons which I have given, I think that the magistrate was wrong not to grant the adjournment sought and not to take a plea from the defendant.

22. The question of law posed in the case is -

 

"Whether I erred in law in exercising my discretion as I did on the 11th day of September 1986, in making an order dismissing the said information."

23. The answer to that question must be "Yes". Accordingly, I order that the case be remitted to a magistrate at Causeway Bay with a direction that a date of hearing be fixed and that the charge be put to the defendant.

⁽¹⁾    [1979] H.K.L.R. 141

⁽²⁾    [1981] H.K.L.R. 657

⁽³⁾    [1983] 3 All E.R. 23