AMEER KHAN v. THE TAK WING PAWNSHOP (a firm)

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JUDGMENT

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Sir Alan Huggins, V. - P. :

1. The claim of the Appellant in the court below was made under s.23 of the Pawnbrokers Ordinance, the material part of which reads:

(It is common ground that para (b) does not apply). It was therefore essential that the Claimant should establish that the goods had been unlawfully pawned. There were here two Claimants: one was the Pawnbroker and one was the present Appellant. The judge having heard evidence made the finding that all the items involved had been lawfully pawned and he proceeded under s. 23(2) to order that, upon payment within fourteen days by the Appellant of the amount of the advance by the Pawnbroker together with the interest due, the items should be redelivered to the Appellant. With respect to him it seems to me that the learned judge proceeded on an entirely wrong basis. If he was satisfied that all the items had been lawfully pawned then the items had not been unlawfully pawned so as to raise jurisdiction under s. 23 (1) (a). He had no jurisdiction to deal with the matter under that section and the parties should have been left to proceed to their claims in a civil action.

2. However, the judge having made his order, went on to say "If I am wrong in saying that the pawning was lawful, I will make an order under s. 23 on similar terms."   That, with respect, was not open to him. It seems to me that the whole substratum of his judgment must go and that accordingly the order must be set aside. I would order accordingly and leave the parties to take such further proceedings as they think fit, either possibly a further claim under this Ordinance, if so advised - having gone into the evidence rather more fully than it was gone into before the judge - or in a civil action in the appropriate court. I would therefore allow the appeal to that extent.

Fuad, J. A. :

3. I agree that on the finding made by the judge, which is not challenged by the Pawnbroker, he had no jurisdiction to make the order he made. I would set aside the order and would direct that the diamonds remain in the custody of the police until the further order of the court.

Kempster, J. A.

4. It may be that the learned judge fell into error having regard to the wording of sub-section (1)(b) of s.23 of the Pawnbrokers Ordinance which reads.

"Where any proceedings before a court or magistrate - a person has been convicted of an offence under this Ordinance and it appears that any goods brought before the court or magistrate by which he is convicted in connection with the offence have been pawned with a pawnbroker, whether or not the pawnbroker is the person so convicted, the court or magistrate shall dispose of the goods in a manner provided by this section".

He may have failed to give appropriate weight to the words "offence under this Ordinance". Be that as may, I agree with my Lords that, having regard to the learned judge's findings of lawfulness, he had deprived himself of jurisdiction to make an order under this section and his order constitutes a nullity.

28th January 1986

IN THE COURT OF APPEAL

1985, No. 156

(Civil)

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RULING

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Sir Alan Huggins, V. - P. :

5. This is an appeal against an order of a District Judge made upon an application which appears to have been both under s.84 of the Criminal Procedure Ordinance and under s.23 of the Pawnbrokers Ordinance.  In the result the judge made an order under the Pawnbrokers Ordinance only.

6. The question has arisen whether this is a civil matter or a criminal matter. At the time it was before the judge, as it seems to me, it was of a mixed nature: an application under s.84 of the Criminal Procedure Ordinance seems to me clearly to be an application in a criminal matter. However, since the order was confined to the Pawnbrokers Ordinance I would agree that this is properly to be considered a civil proceeding. The appeal has in fact been entered in the Register of Civil Appeals.

7. It was then pointed out by the court that leave was required under the District Court Ordinance for such an appeal and that no leave had been obtained. Under the Ordinance application should have been made to the District Judge himself before the matter was brought to this court. That not having been done, it is open under s.63 of the District Court Ordinance for an application to be made to this court - and also for an order extending the time for application. In my view it has not been shown that there will be any prejudice to the Respondent if we do make an order extending the time, and we are all agreed that time should be extended. For my part I would reserve the question whether leave should be granted until we have heard more of the substance of the appeal. However, we grant an extension of time as asked by Mrs. Penlington.

28th January 1986