ATTORNEY GENERAL v. SHIU KAM FUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 746 OF 1992

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BETWEEN

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J U D G M E N T

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1. This was an appeal by way of case stated brought by the Attorney General against a decision of R.B Venning, Magistrate, at Fanling Magistracy.

2. The respondent appeared before the magistrate on a charge alleging that she assisted in the control of a gambling establishment, namely, a horse-racing machine, contrary to s.5(c) of the Gambling Ordinance, Cap. 148. She pleaded guilty to the charge and agreed to the facts presented by the Crown. The magistrate convicted the respondent on her own plea and made an order discharging the respondent absolutely under s.36 of the Magistrates Ordinance, Cap. 227.

3. On 16th June, the respondent applied to review the order of conviction. The magistrate granted the review, reviewed his decision and ordered that no conviction be entered and that the respondent be bound over for a period of three weeks from 25th Mav, 1992 under the Justice of the Peace Act 1361.

4. The question of law which has been stated as arising is:

"Whether I erred in law in acting as I did at the review hearing, in reversing the conviction of the Respondent and ordred that no conviction be entered."

5. Mr MacLeod, who appeared for the Attorney General, submitted that the learned magistrate had failed to comply with the terms of s.19 of the Magistrates Ordinance which he said were mandatory, and required the magistrate, upon a plea of guilty to convict a defendant. Section 19 of the Magistrates Ordinance reads as follows:

"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. If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an order against him accordingly; ..."

Mr MacLeod submitted that the Magistrates Ordinance, s.19, maintains a distinction between complaint and information. The complaint being the proceeding which is the prelude to an order made by the magistrate, and the information being the proceeding which is the prelude to a conviction or acquittal by a magistrate. He argued that the fact that the distinction exists is evidenced by the series of orders to be found in the subsidiary legislation to the Magistrates Ordinance. He submitted that a complaint. could give way to a binding over under the Justice of the Peace Act 1361, while an information must lead either to a conviction or an acquittal of a defendant.

6. He reminded the court that since the passing into law of the Rehabilitation of Offenders Ordinance in 1986, it was no longer open to a magistrate, having convicted a defendant, to decline to record a conviction. Section 36 of the Magistrates Ordinance had been amended accordingly.

7. Mr Marash, who appeared for the respondent, both on appeal and at first instance, frankly conceded that he had suggested the device of a binding over order under the Justice of the Peace Act 1361 to the learned magistrate who had clearly expressed a reluctance to enter a conviction in the case. He submitted that, s.19 of the Magistrates Ordinance envisaged the use of such a device. His argument was that the words "or make an order against him accordingly" left the option of a binding over open to the magistrate following a plea or finding of guilt. He conceded that following the amendment to s.36, it was the intention of the legislature to prevent magistrates from declining to enter a conviction, but suggested that, probably as an oversight, the legislature had overlooked the need to amend s.19.

8. The Attorney General's position was, then, that as the respondent did not come before the learned magistrate on a complaint, he had no jurisdiction to make a binding over order under the 1361 Act. The respondent had appeared before him on an information alleging that she had committed an offence liable to be punished according to the Gambling Ordinance, and had pleaded guilty, so the learned magistrate was constrained by statute (s.19, Cap. 227) to convict her and record that conviction.

9. The respondent on the other hand argued that s.19 left open to the magistrate the option of a binding over under the 1361 Act and that that option could be exerised in a wide variety of cases, and was not restricted to those connected with breaches of the peace or riots etc. All that is required is that the court must have some cause to believe that without a bindover the defendant might repeat her conduct.

10. It seems to me that s.19 of the Magistrates ordinance does, as Mr MacLeod has submitted, deal with two separate and distinct situations, and does preserve the distinction which has always existed between complaints and informations. I am satisfied that the words "or make an order against him accordingly" refer to the procedure the magistrate will follow upon a complaint having been filed, and does not provide an alternative to the magistrate of not recording a conviction when an information has been laid. I am satisfied that s.19 of Cap.227 does not compromise the legislature's intention to remove the option of not recording a conviction. Having made that decision, it follows that I must allow this appeal.

11. In the present case, the learned magistrate was faced with a defendant who had pleaded guilty following the laying of an information and who he had properly convicted in pursuance of s.19 of the Magistrates Ordinance. He could not have done otherwise. The answer, therefore, to the question of law which appears in the Case Stated is "Yes".