THE QUEEN v. CURRENCY BROKERS (HK) LTD AND ANOTHER

No. 186 of 1987
(Criminal)

H E A D N O T E

Criminal law and procedure - powers of District Court - power to give absolute and conditional discharge and to "bind over" - meaning of "conviction" - subsistence of defective conviction until quashed - judicial review of a conviction of the District Court.

An individual and a corporation pleaded "guilty" in the District Court to offences under the Gambling Ordinance (Cap. 148). The individual was "discharged absolutely" and the corporation, against which a conviction was recorded, ordered to pay costs. Both individual and corporation asked the Court of Appeal to extend the time within which they might apply for leave to appeal against their respective "convictions". The Crown took the preliminary point that even if time were to be extended the "convictions" were bad for want of jurisdiction and that, in consequence, they could not be the subject matter of appeals.

In a ruling on the preliminary point

Held: (1) That even if bad the “convictions” stood until and unless quashed and could, therefore, be the subject matter of appeals or related applications.

(2) That the appropriate way to seek to quash the "convictions" was by way of judicial review.

The Crown accordingly failed on the preliminary point. Applicants put to their election. Extent and sources of the powers of the District Court in criminal matters considered.

IN THE COURT OF APPEAL

No. 186 of 1987
(Criminal)

___________________________________________

JUDGMENT ON A PRELIMINARY ISSUE

___________________________________________

Kempster, J .A.:

1. This is the judgment of the Court.

2. On 10th July 1986 in Victoria District Court Currency BrOkers (Hong Kong) Ltd and Robert Lee Flickinger, both being legally represented, pleaded guilty to bookmaking between 4th March and 25th April 1986 contrary to section 7(1)(a) of the Gambling Ordinance (Cap. 148) and to sec t ion 84 of the Interpretation and Genera1 Clauses Ordinance (Cap. 1). Judge Chism recorded a conviction against the company but imposed no penalty save to order the payment of costs. Mr. Flickinger be "discharged absolutely."

3. By Notices filed on 14th April 1987 both the company and Mr. Flickinger sought and still seek an eight month extension of time in which to apply for leave to appeal against their respective "convictions". Since, however, the grounds relied upon would appear to involve a question of law alone leave may not be necessary although extension of time in which to serve notice of appeal is. Be that as it may the preliminary point is taken by the Crown that the company and Mr. Flickinger were not validly convicted so as to allow of such applications or appeals even if time were to be extended. By agreement we shall now rule on this submission as a preliminary point.

4. Magistrates presently dealing with such offences, which are punishable on summary conviction, have a statutory power under section 36 of the Magistrates' Ordinance (Cap. 227), after conviction, to discharge an offender either absolutely or conditionally upon his entering into a recognisance, with or without sureties, to be of good behaviour and to appear for sentence when called upon to do so within a period not longer than three years from the date of the order. A power to award costs is also granted. On 10th July 1986 a magistrate could also take one or other of these courses with or without recording a conviction. These powers are analogous to those accorded to magistrates to bind over persons before them, whether or not convicted and whether or not, in the case of a conviction, such conviction has been recorded, to be of good behaviour :or to keep the peace when it has emerged that a breach of the peace might well occur thereafter: Justices of the Peace Act 1361; Application of English Law Ordinance (Cap. 88) ; R v Aubrey Fletcher[1].

5. The relevant powers of the District Court differ from those of magistrates, are more limited than those of the Crown Court in England and, in a territory where distinction between felonies and misdemeanours has survived, are not so readily to be ascertained. It is not suggested that Hong Kong has any equivalent to section 7 of the Powers of Criminal Courts Act 1973 (previously section 7 of the Criminal Justice Act 1948) or to section 1(7) of the Justices of the Peace Act 1968 giving to the higher courts equivalent powers to those of magistrates in the material regard.

6. In. the discharge of its criminal jurisdiction the District Court, a creature of statute, has powers similar to those which would have been exercisable by the High Court had an accused been committed to that court for trial including those of imposing any punishment available to the High Court by statute; subject to a limitation on the length of sentence which may be imposed: District Court Ordinance (Cap. 336) sections 75(1) and 82(2) and (5). Thus it has power to fine in certain circumstances: Criminal Procedure Ordinance (Cap. 221) section 113A. It therefore falls for consideration whether or not the High Court has power to give an offender an absolute or conditional discharge and also to condemn him in costs and, if so, whether a conviction is a condition precedent.

7. Section 107 of the Criminal Procedure Ordinance, strangely headed "Probation of first offenders" reads:-

"(1) Where any person has been convicted on indictment of any offence punishable with imprisonment and the court is of opinion that, having regard to the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment, the court may, in lieu of imposing a sentence of imprisonment, make an order discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for sentence when called on at any time during such period, not exceeding 3 years, as may be specified in the order.

(2) The court may, where it makes an order under this section, further order that the offender shall pay such costs of the proceedings as the court thinks reasonable."

It is to be observed that for this course of action to be available to a sentencing judge in the High Court or the District Court there must be a prior conviction on indictment or charge-sheet (District Court Ordinance section 79(1)) of an offence punishable with imprisonment. “Bookmaking” as charged is so punishable.

8. Since the High Court is “a superior court of record" which exercises an "original jurisdiction of a like nature and extent as that held and exercised in criminal matters by the High Court of Justice and the Crown Court in England respectively -" [Supreme Court Ordinance (Cap. 4) Section 12] the question arises as to whether the power to discharge an offender absolutely or conditionally comes within its inherent jurisdiction. Such a jurisdiction is normally confined to the prevention of abuse of the Court's process, the preservation of the subject matter of a cause and of related documents and to the award of punishment for contempt. However, where no maximum term or other statutory inhibition arises in relation to a common law offence the courts have an inherent power to sentence an offender to a term of imprisonment which is not inordinate: Castro v R[2]. In Hong Kong the power is to a great extent superseded by the terms of section 90 of the Interpretation and General Clauses Ordinance.

9. More to the point, the Courts have an inherent power to bind over a convicted person on recognisance to come up for judgment if called upon, but meanwhile to be of good behaviour. This power is recognised by the terms of section 1(7) of the Powers of Criminal Courts Act 1973 and of section 79(2)(b) of the Supreme Court ACL 1981.

"That power must be distinguished from a number of other powers conferred on English criminal courts by statute such as the power to grant a conditional discharge, the power to pass a suspended sentence, the power to defer sentence and the power to make a probation order" per Mr. Advocate-General Warner in a reference to the Court of Justice of the European Communities: R v Saunders[3].

We respectfully agree and would only add that no power exists at common law to grant an absolute discharge either. Like a conditional discharge it derives from statute; initially the Criminal Justice Act 1948 section 7.

10. Recording a conviction against the company but not against Mr. Flickinger the judge did not purport to discharge either upon the terms required by section 107 of the Criminal Procedure Ordinance or under 'the inherent, jurisdiction. No more did his orders reflect the powers he might have exercised had he been sitting as a magistrate. None of these courses is apt in relation to a corporation in any event. The question nonetheless remains whether the company or Mr. Flickinger or both was or were “convicted” so as to be entitled to appeal or to apply for leave to appeal pursuant to section 82 of the Criminal Procedure Ordinance.

11. Depending on the context "conviction" may mean either a finding of guilt, whether or not following a related plea, as it obviously does for the purposes of section 81 of the District Court Ordinance, or a final disposal of the case: S (an infant) v Manchester City Recorder[4]; R v Drew[5]; R v Robertson[6]. Here the Judge purported to accept the pleas of guilty and finally to dispose of the case in relation to each accused; perhaps with some of the provisions of section 36 of the Magistrates Ordinance or of section 3 of the Probation of Offenders Ordinance (Cap. 298), as then worded, in mind. That he elected not to record a conviction as against Mr. Flickinger matters not because once his plea of guilty had been accepted he stood convicted nonetheless: Oaten v Auty[7]. We are satisfied that both the company and Mr. Flickinger were "convicted" whichever meaning of "conviction" may be thought appropriate. Further, for the purposes of appeal an order for payment of costs constitutes a "sentence". Criminal Procedure Ordinance section 80(1).

12. While the Crown's submission that the convictions, in the sense of final disposal, were bad for want of jurisdiction on the face of the record would seem to have considerable force we make no concluded finding to such effect. It is unnecessary for us to do so and the matter may more fully be argued elsewhere. We reject the related submission that applications or appeals in relation to the convictions cannot lie. Convictions of the District Court, as of all courts, stand until and unless quashed: R v Willesden JJ[8].

13. In the absence of any equivalent statutory provision to sections 28 and 29(3) of the Supreme Court Act 1981 the appropriate, machinery for quashing a conviction is that of judicial review: R v Crown Court at Knightbridge[9]. The process of appeal is wholly inappropriate as it predicates convictions made within the parameters of the Court's jurisdiction albeit subject to challenge on the grounds outlined in section 83(1) of the Criminal Procedure Ordinance. Further, the applicants or appellants have not sought to rely upon such grounds.

14. Should the company and Mr. Flickinger wish to seek leave, out of time, to apply for the judicial review of the convictions rather than to pursue their applications for time to be extended to apply to appeal on other interesting points of law arising from the terms of the Gambling Ordinance we will adjourn this hearing sine die to allow them so to do. It is, however, only fair to remind them of the terms of section 25(1) of the Supreme Court Ordinance:

"Where a person who has been sentenced for an offence by - the District Court applies to the High Court for an order of certiorari to remove the proceedings before the - District Court into the High Court and the High Court determines that - the District Court had no power to pass the sentence, the High Court may, instead of quashing the conviction, amend it by substituting for the sentenced passed any sentence which - the District Court had power to impose."

15. We await their election.