X v. SECRETARY FOR JUSTICE

HCAL60/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 60 OF 2008

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J U D G M E N T

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Background

1. The applicant is a minor and by her father and next friend seeks leave to apply for the judicial review of a ruling made by Mr Kwok Wai Kin, principal magistrate of Tuen Mun Magistracy on 22 April 2008 that committal proceedings on a charge of murder brought against the applicant should take place in the juvenile court at Tuen Mun Magistracy.  Mr Robert Lee, SC for the respondent supports the application.  The applicant seeks a declaration that a permanent magistrate sitting in a juvenile court has no jurisdiction to hear committal proceedings in respect of a juvenile charged with murder.  The notice pursuant to Order 53, rule 3 originally sought more extensive relief, but Mr Dykes, SC and Mr Jason Wong of counsel for the applicant were content to restrict the application in that way. 

2. The applicant’s argument as advanced by Mr Dykes is essentially that the jurisdiction granted to juvenile courts by section 3A of the Juvenile Offenders Ordinance, Cap. 226 (“the Ordinance”) does not extend to the hearing of committal proceedings under the provisions of Part III of the Magistrates Ordinance, Cap. 227.  

3. The matter arises in this way; the applicant was a young person aged 14 when she first appeared in Tuen Mun juvenile court charged with murder on 13 December 2007.  On 22 April 2008, upon the joint application of the applicant and the respondent, the presiding magistrate ordered that the matter be transferred out of juvenile court into Court No. 1 of Tuen Mun Magistracy for the purpose of committal proceedings.  It was there that the case came before Mr Kwok, the principal magistrate, who invited submissions as to whether the committal proceedings should take place in Court No. 1 or in the juvenile court. 

4. Having heard and considered submissions from the applicant and respondent to the effect that the juvenile court had no jurisdiction, he concluded that the juvenile court indeed had exclusive jurisdiction over the applicant’s case and transferred it back to the juvenile court for committal proceedings. 

The magistrate’s reasoning

5. The magistrate’s decision involved the construction of section 3A of the Ordinance, which states :

“3A.  Juvenile courts

(1)   Courts constituted in accordance with this section and sitting for the purpose of hearing any charge against a child or young person or for the purpose of exercising any other jurisdiction conferred on juvenile courts by or under this or any other Ordinance shall be known as juvenile courts.

(2)   A juvenile court shall consist of a permanent magistrate appointed by the Chief Justice.

(3)   A juvenile court shall have jurisdiction to hear and determine a charge against a child or young person of any offence other than homicide.

(4)   A juvenile court shall have all the powers of a permanent magistrate and, subject to this Ordinance, the Magistrates Ordinance (Cap 227) shall apply to proceedings before a juvenile court as it applies to proceedings before a magistrate.” [Emphasis added]

6. The magistrate’s reasoning was as follows : section 3A provides a juvenile court with jurisdiction over criminal matters concerning children and young persons.  Section 3A(3) exempts only crimes of homicide from that jurisdiction.  But that is an exemption which applies only for the purposes of the “hearing and determination” of a charge.  Committal proceedings do not amount to the determination of a charge and accordingly the exemption of homicide from the jurisdiction of a juvenile court does not apply to committal proceedings. 

7. The magistrate also concluded that juvenile courts had exclusive jurisdiction over children and young persons prior to their cases being transferred to the District Court or their being committed to the High Court.  He arrived at that conclusion on the basis of his interpretation of section 3C(1) of the Ordinance which provides as follows :

“3C.  Assignment of certain matters to juvenile courts

(1)   Subject as hereinafter provided, no charge against a child or young person shall be heard by a court of summary jurisdiction which is not a juvenile court.”

8. The magistrate apparently regarded the use of the single word “heard” (in contrast to the phrase “hear and determine” in section 3A(3)) as including the initial appearance of a defendant before a juvenile court or magistrate.  Because section 3C(1) provides a juvenile court with exclusive jurisdiction over children and young persons as against any other magistrates’ court, the magistrate concluded that all juveniles charged with a criminal offence should initially be brought before a juvenile court.  He found support for this view in the provisions of section 4 and section 5 of the Ordinance which are as follows :

“4.  Bail of children and young persons arrested

Where a person apparently under the age of 16 years is apprehended, with or without warrant, and cannot be brought forthwith before a juvenile court, an inspector of police, or other police officer of equal or superior rank, or the officer in charge of the police station to which such person is brought, shall inquire into the case, and may in any case, and-

(a)   unless the charge is one of homicide or other grave crime; or

(b)   unless it is necessary in the interest of such person to remove him from association with any undesirable person; or

(c)   unless the officer has reason to believe that the release of such person would defeat the ends of justice,

shall release such person on a recognizance, with or without securities, for such amount as will, in the opinion of the officer, secure the attendance of such person upon the hearing of the charge, such recognizance being entered into by him or by his parent or guardian or other responsible person.” [Emphasis added]

and

“5.   Custody of children and young persons not released on bail after arrest

       Where a person apparently under the age of 16 years having been apprehended is not so released as aforesaid, the officer in charge of the police station to which such person is brought shall cause him to be detained in a place of detention until he can be brought before a juvenile court unless the officer certifies-

(a)   that it is impracticable to do so; or

(b)   that he is of so unruly or depraved a character that he cannot be safely so detained; or

(c)   that by reason of his state of health or of his mental or bodily condition it is inadvisable so to detain him,

and the certificate shall be produced to the court before which the person is brought.” [Emphasis added]

9. The magistrate pointed out, and it was not disputed before me, that the effect of these sections read together was that a juvenile charged with any offence, including homicide, had to initially be brought before a juvenile court. 

10. Sections 8(1) and (2) lent further support to the magistrate’s view in this regard.  Those provisions state :

“8.   Procedure in juvenile courts

(1)   Where a child or young person is brought before a juvenile court for any offence it shall be the duty of the court as soon as possible to explain to him in simple language the substance of the alleged offence.

(2)   If the court is satisfied that the child or young person understands the nature of the alleged offence it shall (unless the alleged offence is homicide) ask the child or young person whether he admits the offence.” [Emphasis added]

11. The magistrate relied upon sections 8(1) and (2) as further establishing that the legislature’s intent was that indictable offences (including homicides) charged against a juvenile be initially dealt with by a juvenile court, because (particularly by sub-section (2)) they contemplate, when read together, homicide offences coming before a juvenile court.  

12. One further legislative provision was considered by the magistrate.  Section 80C of the Magistrates Ordinance deals with the conduct of committal proceedings on the return day appointed pursuant to section 80A of that ordinance.  It sets out various procedural requirements and by section 80C(4) provides :

“80C.     Procedure on return day

       …

       (4)   After complying with the provisions of subsection (3), the magistrate shall then—

(a)   except where the accused is a juvenile or the offence is punishable by death, ascertain if the accused desires to plead guilty to the charge and, if he does so desire, the provisions of section 81B shall apply; and

(b)   if the accused is a juvenile or if the offence is punishable by death or if the accused does not then plead guilty and is not committed for sentence under section 81B(2), commit the accused for trial.” [Emphasis added]

Analysis

13. As an initial matter, in my view, section 3A(1) is not intended to confer any jurisdiction upon a juvenile court.  It is fundamentally an introductory or descriptive provision naming juvenile courts as such.  Section 3A(2) deals with the actual constitution of juvenile courts (to which reference only was made in section 3A(1)), and section 3A(3) deals with the jurisdiction of juvenile courts (again to which reference only was made in section 3A(1)).  I agree with the magistrate’s understanding of sections 4, 5 and 8(1) and (2).  The legislation intends as a general rule that all juveniles, on their first appearance, be brought before a juvenile court.  The only possible exceptions to that general rule are the circumstances set out in section 3C(2) which are partly mandatory and partly discretionary in giving jurisdiction, in circumstances where the juvenile is charged in connection with an adult offender, to a magistrates’ court.  In such cases it may well be that a juvenile can be brought before a magistrates’ court ab initio.

14. Apart from that it is clear from the provisions of section 3A(3) that juvenile courts have jurisdiction to hear to finality all criminal charges concerning juveniles, except those involving homicide.  So far as those offences other than homicide are concerned, it appears clear also from the provisions of section 3C(1) that, except for the circumstances set out in section 3C(2) which do not apply to the present case, a juvenile court is to have exclusive jurisdiction over those charges as against any other court of summary jurisdiction.  To my mind that exclusive jurisdiction includes proceedings other than a “hearing and determination”.  It is not without meaning that section 3C refers to “hearings” only and that suggests quite strongly that all hearings involving juveniles, of whatever nature, are within the exclusive jurisdiction of a juvenile court as opposed to magistrates’ courts. 

15. I might add in passing that by giving exclusive jurisdiction to a juvenile court as opposed only to other courts of summary jurisdiction, section 3C(1) appears to contemplate that juvenile courts do not have exclusive jurisdiction as against the High Court and District Court regarding indictable offences, and there is nothing otherwise in the Ordinance which expressly or by construction would appear to give such exclusive jurisdiction.  In my judgment it is intended that a juvenile court shares its jurisdiction over indictable offences with the District Court and High Court.

16. Finally, in exercising its jurisdiction it appears clear, that pursuant to the provisions of section 3A(4), a juvenile court has all the powers of a permanent magistrate and that, by dint of section 3A(4) applying the Magistrates Ordinance to proceedings in a juvenile court, it has power to conduct committal proceedings under Part III of that Ordinance.  

17. It seems to me that committal proceedings must be a “hearing” for the purpose of the Ordinance and that the Ordinance itself distinguishes between that which is, generally, a hearing and that which is more specifically a “hearing and determination”.  See for example section 3A(1), section 3C(1) relating to a “hearing”, and section 3A(3), section 3C(2)(c) and section 3E(1) relating specifically to a “hearing and determination”.  In that regard I note that section 79(1) of the Magistrates Ordinance, prior to its amendment in 1983, referred to “the hearing of an indictable offence” in relation to committal proceedings.  In any event I cannot see that the present procedure for committal proceedings could be described as anything other than a hearing.  Such proceedings have the classic indicia of a hearing.  A magistrate may hear evidence and listen to submissions in the course of committal proceedings before disposing of the matter. 

18. That being so, section 3C(1) is perfectly clear and specific in its terms.  If committal proceedings are a “hearing” as I find them to be, then a juvenile court is intended to have exclusive jurisdiction over committal proceedings relating to juveniles, and a magistrates’ court by the terms of section 3C(1) has no jurisdiction over such proceedings at all.  

19. The question that then arises is at the core of this application : what then of committal proceedings in respect of homicide charges against juveniles?  Section 3C(1) seems plain in its terms in expressly providing that “no charge” against a juvenile be heard by a court of summary jurisdiction which is not a juvenile court.  The reference to “a court of summary jurisdiction” I take to be a descriptor of the court rather than a restriction of the applicability of section 3C to summary offences only.  

20. If that be right, then on the one hand (i.e. section 3C(1)) the Ordinance removes the jurisdiction of magistrates’ courts completely in respect of juveniles (except for the particular circumstances set out in section 3C(2)), and on the other hand removes offences involving homicide from the jurisdiction of juvenile courts (i.e. section 3A(3)).  What court then is to deal with committal proceedings involving juveniles charged with a homicide? 

21. In my judgment the best construction of a less than transparent procedural regime established by the Ordinance is the approach adopted by the magistrate.  That is, to regard the section 3A(3) prohibition on a juvenile court “hearing and determining” a homicide charge against a juvenile as not prohibiting it from conducting a hearing in the nature of committal proceedings or any other hearing short of a final determination.  That construction is supported by the meaning placed upon the phrase “hearing and determination by a magistrate” as it appears in section 105 of the Magistrates Ordinance by the Court of Appeal in R. v. Yeung Wai Hung [1990] 2 HKLR 324.  In that case Fuad VP adopted the reasoning of Lord Reid in Atkinson v. United States of America Government [1971] AC 197, at 235 where he had this to say :

“… it frequently happens that a court has to make a decision in the course of the proceedings-e.g., whether certain evidence is admissible-but it cannot have been intended that the proceedings should be held up while a case on such a matter is stated and determined by the superior court.  So application for a case can only be made when the litigation or ‘proceedings’ is at an end.  But, as Lord Goddard pointed out in Card v. Salmon [1953] 1 Q.B. 392, 396, examining magistrates do not come to a final decision.  If they decide to commit for trial the case goes on, and if they decide not to commit that is not a ground for a plea of autrefois acquit.”

22. In my judgment both as a matter of reason and of precedent committal proceedings, whether a decision is made to commit or not, cannot be regarded as a “determination” of a matter.  The reference to “determination” in section 3A(3) is a reference to a final determination.  That was made perfectly clear by the court in Yeung Wai Hung.  That being so, the hearing of committal proceedings in respect of a homicide charge against a juvenile by a juvenile court would not be a “determination” and would not offend the provisions of section 3A(3).  

23. That interpretation avoids a construction of the Ordinance which otherwise requires section 3C(1) to have no effect so as to allow a court of summary jurisdiction other than a juvenile court, and contrary to the specific terms of section 3C(1), to have jurisdiction to conduct a hearing in respect of a charge faced by a juvenile.  

24. But section 8 of the Ordinance does create some obstacles to this interpretation.  The section, while supporting the magistrate’s interpretation in that it contemplates that juvenile offenders charged with murder be brought before a juvenile court (sections 8(1) and (2)), goes on to require the magistrate to hear the evidence in the case; (sections 8(3), (4), (5) and (6)), and then to proceed to the penalty stage (section 8(7)).  Implicit in arriving at that final stage is that the juvenile court has made a determination on the charge. 

25. I accept Mr Dykes’s submission in this regard that section 8(3) to (7) do not lie happily with a juvenile court, rather than complying with their provisions, conducting committal proceedings in respect of a homicide offence, as those provisions of section 8 are couched in mandatory terms and the section, at least on its face, requires a magistrate, once a charge is before him, to proceed along a path resulting in conviction or acquittal in respect of the charge which the juvenile is facing. 

26. But it is quite plain that the provisions of section 8(3) to (7) cannot be read in that way in their application to a homicide charge.  Even though section 8 makes no provision for transferring charges to another court or for conducting committal proceedings it must be read in conjunction with section 3A(3).  And it is clear that that sub-section prohibits a magistrate from determining a homicide charge laid against a juvenile. 

27. Accordingly whatever be the effect of section 8 generally on indictable offences faced by juveniles (and I do not have to deal with that for the purpose of this application) there is, at least, one circumstance where sections 8(3) to (7) cannot apply.  Where the charged offence is one of homicide a juvenile court simply does not have jurisdiction to go on and determine that charge.  Section 3A(3) plainly establishes that.  

28. Similarly section 3C(2)(a) in its mandatory terms requires that any charge against a juvenile where that juvenile is jointly charged with an adult be heard by a magistrates’ court, and sections 3C(2)(aa) and (b) allow magistrates’ courts to hear charges against juveniles in certain circumstances.  It must be in such cases that it occasionally arises that a juvenile is required to be transferred to a magistrates’ court, for example where a juvenile after initially being singly charged with an offence is subsequently jointly charged with an adult.

29. From all this it must be that the intention of the legislature as expressed in section 3A(3) and section 3C(2) is that regardless of the mandatory terminology of sections 8(3) to (7), some charges involving juveniles must, or may (depending on the circumstances), be transferred out of a juvenile court to other courts, and in regard to those charges the provisions of sections 8(3) to (7) do not apply.  It is perhaps unfortunate from the point of view of clarity that no procedural provision to this effect was incorporated into section 8.  

30. In any event, accepting that the mandatory terms of sections 8(3) to (7) do not, at the least, apply to juveniles faced with homicide charges, it is necessary that some other procedure must be adopted so as to have such individuals committed for trial in the High Court.  In my judgment that procedure is a hearing under Part III of the Magistrates Ordinance as it applies to a juvenile court by section 3A(4), and it must be conducted in the juvenile court which, for the reasons I have given, has exclusive jurisdiction over hearings, including committal proceedings, as against any other court of summary jurisdiction. 

31. One other provision raised as an obstacle to such a construction of the Ordinance is section 80C(4) of the Magistrates Ordinance.  Sections 80C(1) to (3) deal with the procedure to be followed when a defendant appears before a magistrate on a return day.  Section 80C(4) is set out earlier in this judgment and contemplates that committal proceedings before a magistrate can apply to juvenile offenders.  But that does not in my view impact upon or undermine the construction given the Ordinance by the magistrate.  That is because section 3C(2) provides that a juvenile must or may be taken before a magistrate when charged with an offence in connection with an adult offender, and section 80C(4) simply takes that into account.  The terms of the sub-section are neutral so far as the questions which arise pursuant to this application are concerned.  

32. There are other “neutral” provisions in the Ordinance.  Section 7, for example, contemplates a “court” committing a juvenile for trial.  But while “court” is not defined for the purposes of the Ordinance it is clear that the term is used in various provisions to refer to courts other than, as well as, juvenile courts, see for example, section 3F, section 9 and section 12.  Section 7 does not provide any substantial guidance for the purposes of the present application.  It certainly cannot be read as giving exclusive, or any, jurisdiction to either magistrates’ or juvenile courts in committal proceedings.  By its reference to “courts” rather than specifically to “juvenile courts”, the section merely acknowledges that juveniles may be committed for trial, depending on the circumstances, by either category of court. 

Conclusion

33. I am satisfied the magistrate’s well-reasoned ruling was based on a correct construction of the provisions of the Ordinance and is therefore correct in law.  That is sufficient to dispose of the application. 

34. For the reasons given, I decline to make the order sought by both the applicant and respondent and the application is dismissed.  The committal proceedings should continue before the magistrate sitting as a juvenile court.  The circumstances of this case being such as they are, I make no order as to costs.