THE QUEEN v. CHAN MAN KIT

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 594 OF 1990

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BETWEEN

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JUDGMENT

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1. On the 9th of January 1989, Mr. Chat Man-kit and his brother, both in their early thirties, had a discussion over the size of their respective contributions towards the cost of their mother's birthday party.  They failed to reach consensus ad idem.    The discussion became a quarrel and the quarrel became a fight in which both armed themselves with items of furniture and caused the other a degree of bodily harm.

2. The incident was reported to the police. A worldly wise Detective Senior Inspector who handled the case arrived at a Solomon like solution. If two brothers aged 32 and 30 could not agree to make equal contributions towards defraying the cost of their mother's birthday party, then, so the Detective Senior Inspector must have reasoned, it was highly likely that they would cause a breach of the peace in the imminent future.

3. So, instead of indulging in an academic exercise with a view to determining whether either or both should be charged with some offence, the Detective Senior Inspector decided to make an application to Western Magistracy to have both bound over, under the Justices of Peace Act 1361 and the Common Law, to keep the peace.

4. As a result of that application, the case became WMP No. 2 of 1989 - WMP being an abbreviation of "Western Miscellaneous Proceedings".

5. Both brothers attended the court for the hearing of the application; both agreed that they had a fight and injured each other; both agreed that the cause of the dispute was inability to reach agreement regarding their respective contributions towards defraying the cost of the party; and both agreed to be bound over in terms of the application. The learned magistrate then ordered as follows:

 

"Each bound over $100 for 12 months under Common Law and Justice of Peace Act. No conviction recorded. No court costs."

6. The formal order drawn up, stated the number of the case, the name of the court and the Magistrate, and then continued as follows:

 

"The 11th day of January 1989, Chan Man-kit (hereinafter call the "Respondent") is this day ordered to enter into a reconnaissance to keep the peace in the sum of $100 for 12 months under the Common Law and Justices of Peace Act 1361."

7. Mr. Chan Man-kit duly entered the reconnaissance and kept the peace for the ensuing 12 months and keeps on keeping the peace. Why then is this matter before me as an appeal against the learned magistrate's order?

8. The answer is that Mr. Chan has learnt that a conviction has been recorded. Someone has, through error, applied to a document in the Western Magistracy's file a chop which purports to say that Mr. Chan was conditionally discharged under section 36 of the Magistrate's Ordinance. That is quite clearly wrong. It is wrong because that is not the order made by the learned magistrate and it is also wrong because under section 36, the power to discharge a person conditionally arises only where a person has been charged before a magistrate with an offence punishable on summary conviction and the magistrate thinks that the charge has been proved. Here, there was no charge, there was no allegation of the commission of an offence and certainly no finding by the magistrate that any offence had been proved.

9. The immediate problem is that section 113 of the Magistrate's Ordinance, which gives a right of appeal from a magistrate in any matter, is a right of appeal exercisable by and only exercisable by a person aggrieved by a Conviction Order or Determination of a Magistrate in respect of or in connection with an offence.  The order made by the magistrate here was not an order made in respect of or in connection with any offence but an order made on the application of the Detective Senior Inspector who quite wisely, in my view, decided not to charge anybody with the commission of an offence in respect of this matter.  So, Mr. Chan, although he is a person aggrieved, is not a person aggrieved by an order of a magistrate in respect of or in connection with an offence. He has, therefore, in my view, no right of appeal.

10. However, since his real concern is to have court records show what is the truth, namely, that he is a person who has never been convicted of any offence, I propose to shortcut the procedure in the interests of justice by making an order that the records of WMP 2 of 1989 be brought up before this court so that the chop which has caused all the trouble can be expunged. I formally now order that that record be amended by erasure of that chop.

11. I also direct that a copy of this judgment be forwarded to the Commissioner of Police so that, if his records erroneously record Mr. Chan Man-kit as having been the subject of a conditional discharge under section 36 of the Magistrate Ordinance, his record can be amended to reflect the truth, namely, that Mr. Chan Man-kit has never committed any offence.