ATTORNEY GENERAL v. CHAN WAH CHUEN

1988, No. 274

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H E A D N O T E

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Review of conviction in Magistrates Court - meaning of 'determination' - application not time-barred if made before date sentence passed.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 274 OF 1988

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J U D G M E N T

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1. This is an appeal by the Attorney General by way of case stated. It concerns the proper meaning of the word 'determination' in the context of section 104(1) of the Magistrate Ordinance Cap. 227, which provides: -

"104. (1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter."

2. On 3rd February this year at Central Magistrates Court, the respondent pleaded not guilty to possession of dangerous drugs for the purpose of unlawful trafficking. He was tried the same day and convicted of simple possession. He was remanded to 24th February; when sentence passed.

3. At this hearing the prosecutor applied under s.104 for a review of the conviction. The application was refused, on the grounds that it was out of time. The question of law for this court is whether the magistrate erred in holding that he had no jurisdiction to grant the application.

4. In England the power of review is limited to a) the rectification of invalid sentences, and b) to ordering a rehearing by different justices, following a finding of guilt, where it appears to be in the interests of justice. The power is exercisable under s.142 (4) of the Magistrates Court Act, 1980, "only within the period of 28 days beginning with the day on which the sentence or order was imposed or made or the person was found guilty, as the case may be...."

5. The wording of the subsection is quite different from that of s.104, however, and thus the provision for a rehearing of the issue of guilt or innocence, before the sentencing stage has been reached, is not helpful.

6. S.111(1) of the same Act (replacing s.87 of the 1952 Act) gives "any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it-is wrong in law .... by applying to the justice composing the court to state a case......''

7. S.111(2) and (3) provided:-

"(2) An application under subsection (1) above shall be made within 21 days after the day on which the decision of the magistrates' court was given.

(3) For the purpose of subsection (2) above, the day on which the decision of the magistrates' court is given shall, where the court has adjourned the trial of an information after conviction, be the day on which the court sentences or otherwise deals with the offender."

8. Counsel for the appellant, Mr Cross, also relies upon R. v Grant⁽¹⁾. The latter appealed against sentence on the ground that Quarter Sessions had no power to sentence him to corrective training, as he was not served with the notice the requisite three days before the hearing by the justices, but only before the passing of sentence by Quarter Sessions. Lord Goddard C.J. said at p. 503: -

"If it is served three days before the prisoner is brought up for sentence, that is all that is required, and we cannot hold in this case that the 'trial' was the incomplete trial which takes place before justices, for, in our opinion, for this purpose the trial is not complete until sentence has been passed or the prisoner has been ordered to be discharged."

This case was referred to the magistrate but he found it unhelpful, since the word 'trial' does not appear in s.104.

9. The only other authorities relate to appeals from magistrates' courts. Mr Cross urges the court to look at the similarities of s.104 to s.105 and s.113 of the same Ordinance and submits that it should be construed ejusdem generis.

10. Section 105 commences: -

"105. Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case....."

11. Section 113 provides: -

"113. (1) Any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connexion 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, in manner hereinafter provided to a judge.

(2) Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence unless the sentence is one fixed by law.

(3) After the hearing and determination of any complaint or other proceeding which a magistrate has power to determine in a summary way other than a determination or proceeding relating to or in connexion with an offence either party thereto may appeal from such order or determination of such magistrate to a judge."

12. In Atkinson v United States Government and others⁽²⁾ the House of Lords held that s.87 of the Magistrates Court Act had no application to committal proceedings and the magistrate had no power to state a case, Lord Guest said at p. 1332: -

"Counsel for the second and third respondents, as amicus curiae, gave the complete answer, in my view, when he said that a stated case was only competent for a final determination. This conclusion was reached by an examination of s. 87 where 'other proceeding' had to be interpreted ejusdem generis with the words 'conviction, order or determination' which are final proceedings. As the decision of committing magistrates or the chief metropolitan magistrate under the Extradition Acts was not a final determination, a stated case was incompetent."

In R. v Rockford Justices ex parte Buck⁽³⁾ the Divisional Court held it had no jurisdiction to interfere by way of judicial review with a decision of justices, exercising their summary jurisdiction, refusing to admit certain similar fact evidence. The Lord Chief Justice said at p. 118: -

"The obligation of this court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings."

The principle in Atkinson's case was applied in Streames v Copping⁽⁴⁾ May L.J. said at p, 127: -

"Apart from questions of jurisdiction, where justices are asked to, and do rule on a point of law in the course of a hearing before them (for instance, on a question of the admission of evidence, or the construction of a statute or document) they should not at that stage, with nothing more, accede to an application, by the party against whom they have ruled, for an adjournment and for them to state what I can describe as an 'interlocutory' case. If they purport to do so, then for the reasons I have given I do not think that this court has jurisdiction to hear it. The justices, having made their ruling, should complete the hearing and determination of the matter before them, and then state a case thereafter, if they are asked to do so. In a very special instance, if the party aggrieved sought and obtained leave to apply for prohibition, then the justices might be wise to adjourn the matter, pending the hearing of the application for judicial review, but they should not state a case under s. 111(1) until after their final determination of the information or complaint before them.

I bear in mind that such an 'interlocutory' case was stated in Piggott v Sims [1973] RTR 15 and that Lord Widgery C.J. in particular did not suggest that this court had no jurisdiction to hear it. However, as I have said, it is quite clear that the point was never taken by counsel on either side, and I respectfully think that one must consider Lord Widgery C.J.'s short dictum to have been expressed per incuriam.

In the instant appeal, therefore, I do not think that the justices ought to have stated a case on the defendant's application at the stage at which it was made. In my respectful opinion, having held that the relevant information was not bad for duplicity, they should have continued to hear it and to have reached a final determination on it. If either party then asked them to state a case under s.111(1) of the 1980 Act, then they would have had to consider that request in the usual way."

13. The matter has also been considered by the New Brunswick Supreme Court in R. v Appleby⁽⁵⁾. S. 762(1) of the Criminal Code of Canada provides :-

"762. (1) A party to proceedings to which this part applies or the Attorney General may appeal against a conviction, order, determination or other proceeding of a summary conviction court on the ground that -

(a) it is erroneous in point of law, or

(b) it is in excess of jurisdiction,

by applying to the summary conviction court to state a case setting forth the facts as found by that court and the grounds on which the proceedings are questioned.''

14. Hughes C.J. said at p. 169: -

"    An appeal lies under s. 762(1) against a 'conviction, order, determination or other proceeding in a summary conviction court'. The only ground on which the decision in the present case could be appealable is that the judge decision was a 'determination'.

    In my opinion a 'determination' as used in s. 762 is a decision which is decisive of the issue raised in the information. 'Determination' implies an ending or finality, the ending of a controversy. While a decision of the trial judge allowing the defendant's motion would have ended the issue of the defendant's guilt or innocence of the offence charged, the decision to deny the motion did not have that effect and in my opinion was therefore not a 'determination' against which an appeal by way of stated case was available."

Bugold, J.A. added at p. 174: -

"I feel that the expression" conviction, order, determination or other proceeding of a summary conviction court" as used in s. 762 of the Code is to be interpreted as referring to judicial acts which are of a final, rather than an interlocutory, nature. It seems to me that to hold otherwise would have the result that any matter upon which the judge of first instances rules in the course of summary proceedings before him could be subject to appeal by way of stated case."

15. The Hong Kong authorities follow the same line. In Newton v Walker⁽⁶⁾ Pickering J. said at p. 321: -

"I am fully satisfied, and hold, that it is not the intention of the subsection (s.113 (1)) to permit appeals upon interlocutory matters arising in magistrates' courts. Were it otherwise appeals would proliferate like mushrooms at dawn to the impediment of the disposal of the work of the criminal courts."

16. That decision was followed by Jones J. in R. v Leung Kwong Fai⁽⁷⁾.

17. In R. v Tam Kun Shing⁽⁸⁾ it was made clear by the Full Court that appeals against conviction and sentence by magistrates are separate matters and that a notice of appeal against conviction does not authorise the court to hear an appeal against sentence.

18. In R. v Yuen Chun Sing⁽⁹⁾ Cons J. (as he then was) heard an application for bail pending appeal against conviction, although sentence was still pending. In granting the application he said at page 770, after citing Tam Kun-shing: -

"It must therefore be technically feasible to pursue an appeal against conviction before sentence is passed. This is not a course to be generally encouraged, but after much hesitation I have come to the conclusion that in the particular and peculiar circumstances of this case the interests of justice would best be served by granting bail to the hearing of the appeal."

19. Finally in R. v Shu Jaan Chang⁽¹⁰⁾, Wong J. was asked to hear the appeal against conviction of an appellant who had deliberately absconded in order to avoid sentence. The judge considered Shu Jaan Chang but felt that in the circumstances of his case, there was "no justification to depart from the normal and firmly established practice that an appeal will only be heard after conviction and sentence."

20. Mr Polson, for the respondent, makes two principal points. He correctly says that in R. v Appleby⁽⁵⁾ the court was considering the meaning of 'determination' in the context of s.762 of the Criminal Code, whereas in s.104 the word stands on its own. Hughes C.J., however made it clear that the judge's decision in that case could only be regarded as a 'determination', not a 'conviction, order or other proceeding.'

21. Mr Poison also submits that appeal and review are different matters and that on 3rd February, the issue of guilt was decided by a final determination, subject to the right of review.

22. In Re Dillon⁽¹¹⁾ Hayes J. said: -

"Information is the initiatory step in proceedings of a criminal nature, which are to be disposed of summarily, while I apprehend the term 'complaint' designates the initiatory step in summary proceedings of a civil nature; but equally in both cases there is contemplated the existence of a matter in controversy between two parties."

23. In the context of the trial of an information by a magistrate, I think 'determination' means a final decision on all matters in issue between the informant and the defendant. This includes sentence upon conviction.

24. The authorities cited tend, largely on grounds of convenience and cost, to support this view in the case of appeals. For these reasons, I hold that the application to review, made on 24th February, was not time-barred. The answer to the question asked is 'yes'.

(1) [1951] 1 KB 500

(2) [1969] 3 AER

(3) [1976] 68 CAR 114

(4) [1985] 2 All ER 122

(5) [1974] 10 WBR at 162

(6) [1975] HKLR 317

(7) MCA 503 of 1982

(8) [1975] HKLR 128

(9) [1976] HKLR 767

(10) MCA No. 1106 of 1985

(11) (1860) Ir.Com. Law Reports Vol XI 238