ATTORNEY GENERAL v. WONG CHI MING AND OTHERS

1988, No. 140, 141 and 142

Mag. App.

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H E A D N O T E

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    Subsection (5) of Section 33 of the Public Order Ordinance empowers a court to issue a warrant for the arrest of a person for the offence of possession of an offensive weapon under subsection (1) of the same section or to remand in custody or on bail a person charged with any such offence, even though the consent of the Attorney General to the institution of the prosecution has not yet been obtained.

    A Magistrate should approach the exercise of the discretion to remand, without any preconceived ideas against one party or the other. The discretion should be exercised judicially having regard to what is reasonable in the circumstances of each case and with the interest of not only the defendant, but also the community being taken into consideration.

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 140, 141 and 142 OF 1988

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J U D G M E N T

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1. In these three appeals, on the Attorney General's application, the Principal Magistrate at Sanpokong Magistracy, Mrs Margaret Chui, has stated and signed a case under S. 105 of the Magistrates Ordinance in the following terms :

"CASE

1.     The Respondents were charged with possession of offensive weapon in a public place. The offence is one under Section 33 of the Public Order Ordinance, Chapter 245

2.     Although section 33 of the Ordinance makes it an offence for any person, without lawful authority or reasonable excuse, to possess in any public place any offensive weapon, section 33 also prohibits the institution of any prosecution for this offence without the consent of the Attorney General, for section 33 subsection 5 provides:-

'No prosecution for an offence under this section shall be instituted without the consent of the Attorney General, but this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for any such offence, or the remand in custody or on bail of a person charged with any such offence.'

3. Section 33 of the Public Order Ordinance therefore, like the more recent section 27 of the Public Order Ordinance, contains a safeguard against unscrupulous prosecutions for an offence under that section. The safeguard prohibits the institution of a prosecution for an offence under that section without the consent of the Attorney General. In other words, a prosecution for an offence of possession of offensive weapon in a public place under section 33, like a prosecution for an offence of publishing false news under Section 27, requires the approval of the Attorney General. As all prosecutions are deemed by law to be instituted by the Attorney General, who is also deemed by law to be a party to the proceedings instituted, the safeguard would be meaningless unless it means the personal approval of the Attorney General.

4. Although section 33 subsection 5 says that the subsection "shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for any such offence", these words are superfluous because whether or not consent of the Attorney General to a prosecution is required, there is nothing to prevent the arrest or the issue of a warrant for the arrest of any person for an offence. Arrest and prosecutions are distinct matters. Even without these words, there is nothing to prevent the arrest or the issue of a warrant for the arrest of a person for any such offence. Before a prosecution could be instituted against the person, however, the approval of the Attorney General must be obtained. That, in my view, is the purpose and intent of section 33 subsection 5. The Attorney General might or might not approve a particular prosecution. Therefore not all arrests would result in prosecutions.

5. Again, although Section 33 subsection 5 says that the subsection shall not prevent "the remand in custody or on bail of a person charged with any such offence" - if it means remand by the court before the consent of the Attorney General to the institution of the prosecution has been given - is inconsistent with the purpose and intent of the subsection, which is to prohibit the institution of a prosecution until the Attorney General has considered and approved it. A prosecution is instituted when a person is charged and brought to court, and prosecutions have been instituted in these cases before the Attorney General had considered and approved their institution.

6. The general principles of interpretation laid down by section 19 of the Interpretation and General Clauses Ordinance, Chapter 1 are that an Ordinance shall receive such fair interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning, and spirit. There can be nothing clearer from the words "no prosecution for an offence under this section shall be instituted without the consent of the Attorney General"' in section 33 subsection 5 of the Public Order Ordinance that the legislature intended to afford protection to its citizens from unscrupulous prosecutions. It would be repugnant to the intent, meaning, and spirit of section 33 subsection 5 of the Public Order Ordinance that no prosecution for an offence under the section shall be instituted without the consent of the Attorney General if prosecutions could be instituted without the consent of the Attorney General even having been sought, still less obtained.

7. When the Respondents were brought before me, I enquired of the Crown whether the consent of the Attorney General to the institution of the prosecutions had been obtained. The Crown informed me that the consent of the Attorney General to the institution of these prosecutions had not been obtained.

8. The Crown asked me to adjourn the cases and to remand the Respondents in custody to await the decision of the Attorney General on whether or not he would give his consent to the institution of these prosecutions.

9. In day after day, the Crown institute prosecutions against people without due consideration of the suitability of the charges, or the availability of evidence, or the appropriate venue of trial, and, in the present cases, without even the statutory requirement being complied with. Adjournments are routinely sought by the Crown for the purpose of considering the suitability of the charges, or the availability of evidence, or the appropriate venue of trial, or for the purpose of complying with certain statutory requirements. In my view, these are matters which should have been done as a prerequisite to the institution of a prosecution. The course of action adopted by the Crown puts the car before the horse, and is unfair to people who are prosecuted and detained, as these Respondents were.

10. Although the law protects the liberty of the subject by guarding against detention without trial in requiring that people arrested and detained be brought to a magistrate within 43 hours of his detention, this law is often treated as no more than a mere formality by the Crown, for when these people are brought before a magistrate, the Crown would prevent a plea from being taken from them by the magistrate or a date from being fixed for their trial. Adjournment of the cases and remand of these people are then sought on the ground that the Crown have not yet decided on what charge to proceed against them, or in which court they are to be dealt with, or whether there is evidence to justify the continuation of the prosecutions against them. These applications for adjournment or further adjournment and remands are also treated as no more than a mere formality by the Crown.

11. Although adjournments lie within the discretion of magistrates, magistrates have been pressurised to grant all adjournments applied for by the Crown. Adjournments are demanded as of right by the Crown since the decision of the Chief Justice Sir Denys Roberts in Case Stated SPK 14532/87, which was followed by O'Dea, J. in Case Stated SPK 15816/87 etc. Not only does the Crown want these adjournments, the Crown also wants defendants to bear all costs thrown away by the adjournments, as can be seen in Case Stated SPK 5773/87 etc.

12. I have voiced my repugnance of attempts by the Crown to make puppets of magistrates in granting adjournments and in detaining people in custody. Whether people charged should be remanded without a plea being taken from them or a date fixed for their trial is a discretion that should be exercised by a magistrate judicially, and not for political purpose or for administrative convenience. I do not regard it as a proper exercise of my judicial discretion if I were to grant the Crown the adjournments routinely demanded by the Crown and remand people at the pleasure of the Crown. I therefore refused to grant the adjournments sought by the Crown.

13. In my view, the Crown should not have instituted these prosecutions against the Respondents without the consent of the Attorney General and take adjournments and remands by the court for granted. Nor should the Crown take for granted that the consent of the Attorney General would be forthcoming.

14. Furthermore, since section 33 subsection 5 of the Public Order Ordinance requires the consent of the Attorney General to the institution of a prosecution under that section, it is not enough for the Attorney General to give retrospective consent to a prosecution. That would not be a fair interpretation to section 33 subsection 5. The Attorney General's consent ought to be obtained as a pre-requisite to the institution of a prosecution for an offence under that section.

15. When the legislature has assured its citizens on the passing of a piece of controversial legislation like section 33 of the Public Order Ordinance and the more recent section 27 of the Public Order Ordinance that extra care will be exercised in the implementation of the legislation, with the Attorney General having to approve any prosecution under these sections, I think that it is the duty of the courts to see that the legislation is administered honestly and fairly.

16. Since these prosecutions were instituted without the consent of the Attorney General as required by section 33 subsection 5 of the Public Order Ordinance, I struck out the prosecutions.

2. The questions of law arising on the above statement for the opinion of the judge of the High Court are:

(1) "Whether I erred in law in exercising my discretion in refusing to adjourn the cases and to remand the Respondents in custody as required of me by the Crown?"

(2) "Whether I erred in law in striking out prosecutions for an offence under section 33 of the Public Order Ordinance, Chapter 245, instituted without the consent of the Attorney General as required by section 33 subsection 5 of the Public Order Ordinance, Chapter 245? " "

3. Mr Grenville Cross who appears for the Attorney General says that the answer "Yes" should be given to both questions.

4. So far as paragraph 3 of the Case Stated is concerned, he says sections 33 and 27 of the Public Order Ordinance are entirely different in their terms in that section 27 provides no exception to the prohibition whereas section 33(5) does provide exceptions. In practical terms, if the police are to comply with the provisions of section 52, Cap. 232 it is not possible to complete inquiries, to obtain legal advice, and to obtain the Attorney General's consent. In this respect, he relies upon the judgment of O'Dea, J. in A.G. v. TSE Lai-sing⁽¹⁾ in which he said:

"If the Attorney General is to make a reasoned and proper decision as to which Court the case will be transferred to, it cannot be done before an accused's first appearance."

He accepts that by virtue of the laying of the informations, the prosecution was underway in each case. Although other facts of the prosecution process cannot be embarked upon, section 33(5) allows a court to remand in custody or on bail. He recognises that the word "court'' does not appear in section 33(5) but argues that the word "remand'' does not appear in the Police Force Ordinance. It is obvious, he says, that the word "remand'' refers to an order by a Court of Law. The Magistrate erred in refusing to give effect to the words "remand in custody" or "on bail'' since she considered them to be "inconsistent with the purpose and intent of the subsection" (Paragraph 5). However, says Mr Grenville Cross, the words complained of constitute a clear and unequivocal exception to the subsection. He refers to a passage in Halsbury's Law of England, Vol. 44, para. 860 :

"If it is possible, the words of a statute must be construed so as to give them a sensible meaning. A statute must, if possible, be construed in a sense which makes it operative and does not defeat the manifest intentions of the legislature, and nothing short of impossibility so to construe it should allow a court to declare a statute unworkable. Thus where a statute has some meaning, even if it is obscure, or several meanings, even though there is little to choose between them, the court must decide what meaning the statute is to bear, rather than reject it as a nullity. It is not permissible to treat a statutory provision as void for mere uncertainty; however, if the uncertainty cannot be resolved, and the provision can be given no sensible or ascertainable meaning it must be regard as meaningless.''

Reference is made to a number of cases including Curtis v. Stovin⁽²⁾, Luke v. IRC⁽³⁾, Murray v. IRC⁽⁴⁾ and Pye v. Minister For Lands for N.S.W.⁽⁵⁾.

5. Mr Cross argues that the exception to section 33(5) is a recognition on the part of the legislature that it will not usually be possible to obtain the Attorney General 's consent before the first appearance in court of the defendant. The Magistrate was in error in concluding that the necessary adjournment to obtain the Attrorney General's consent was an "attempt by the Crown to make puppets of Magistrates in granting adjournments and in detaining people in custody'' (paragraph 12 above). The Magistrate erred, he says, in refusing reasonable requests for adjournments. He quotes from the judgment of Woolf, J. in R. v. Birmingham Justices, ex parte Lamb⁽⁶⁾ :

"When exercising the discretion which they have whether or not to adjourn cases, the justices have to exercise their discretion judicially. Doing that, they must be just not only to the defendant but to the prosecution as well. They must not use their powers to refuse an adjournment to give a semblance of justification for their decision to dismiss prosecutions when their refusal of the adjournment means that that is an inevitable consequence.''

Mr Cross says that Mrs Chui failed to do justice to the Crown and quotes from the judgment of Sir Alan Huggins, V-P in A.G. v. Tp Chong-kwan⁽⁷⁾ :

"It is well-established that an exercise of the discretion is a matter of law which can be challenged on appeal, but equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only, for example, where it is manifest that the discretion has been exercised unreasonably or where the court order will result in injustice .............................. I think the learned judge was wrong and that injustice did result from the course which she took. Justice must be done to the Crown as well as to the defence,''

Mr Cross also relies on a quotations from the judgments of Kempster, J.A. in A.G. v. TUNG Ying-chuen⁽⁸⁾:

"After all, the interests of the community have to be considered as well as those of the individual charged."

And Roberts C.J. (as he then was) in A.G. v. WONG Ho-yung & Anor⁽⁹⁾:

".... Further, the principal magistrate appears in one important respect to be under a misapprehension as to the system within which the courts are working.

There is no rule, and indeed there could not be, that the prosecutor must not charge a defendant and bring him before the court, until all the evidence is available to the prosecution. Any experience of the courts will show that in a considerable number of cases, the police would be guilty of a serious dereliction of their duty if they did not bring defendants before the court at an early stage while evidence was still being collected.''

6. Mr Cross contends that this particular Magistrate has taken objection to the Crown obtaining adjournments at all, and that she seems to be seeking to find any point against the Crown obtaining adjournments on the first occasion. He asks that each case be remitted back to the Principal Magistrate with a direction to her to deal with each according to law.

7. The respondent in Appeal 142/88 has not appeared, but Mr Selwyn So who appears for the respondents in Appeals 140/88 and 141/88 supports the Magistrates Orders. He contends that the decision of O'Dea, J. in A.G. v. TSE Lai-shing⁽¹⁾ can be distinguished from the present cases because there the decision was about the venue of the trial. In the present appeals, on the other hand, the matter is one concerning a point of law and the construction to be placed upon a statute. It is not impossible to bring a defendant who was in possession of an offensive weapon before a court of law without the Attorney General's consent. He says this can be done under S. 17 of the Summary Offence Ordinance, Cap. 228. The words of the statute are perfectly clear and not ambiguous and they mean what they say when they say that no prosecution for an offence under this section shall be instituted without the consent of the Attorney General. So far as the argument of Mr Cross that section 33(5) contains exceptions to the rule that the Attorney General's consent must be obtained and that those exceptions are a recognition by the legislature that it is not possible to obtain the Attorney General's consent before the first appearance in court, he argues that this is putting the cart before the horse. He argues that the discretion of the Magistrate did not arise in the present cases because on a proper construction of the law the prosecution should not have been instituted, and the Magistrate had no discretion to remand. He distinguishes the Birmingham Justices⁽⁶⁾ case on the ground that in that case there was a discretion. He also draws the same distinction in the case of the Attorney General v, WONG Ho-ying⁽⁹⁾. To this extent he appears to contradict the Principal Magistrate who recognised that she had a discretion, hence her first question. He argues that this court should give the word ''remand" its ordinary meaning which does not exclude a remand by the police. He asks the court to adopt the literal approach and to apply the plain meaning rule. He argues that the subsection can be split into two parts, the first part providing that without the consent of the Attorney General there shall be no prosecution and the second part meaning that a person may be arrested and remanded even if the prosecution is instituted without the Attorney General's consent. However, he argues that the second part does not provide exceptions to the first part. "It has the meaning and value of empowering certain acts, but the prosecution still cannot be instituted in any circumstances. The value and significance of the second part of the subsection is not to create an exception to the first part, but to protect magistrates from liability when they have acted by remanding somebody in a case where a prosecution has been wrongfully instituted.''

8. In considering the submission of counsel which I have set out above, I must bear in mind the provisions of section 19 of the Interpretation and General Clauses Ordinance:

"An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object to the Ordinance according to its true intent, meaning and spirit.''

9. It will be noted that in paragraph 6 of her Case Stated, Mrs Margaret Chui has, in fact, omitted to quote the words "large and liberal" when referring to the provisions of this section. It is hard to believe that this was an accidental omission, since she has adopted a strict interpretation.

10. It is to be noted that section 33(1) makes it an offence for which a person may be tried summarily or on indictment. It provides minimum sentences and is thus a very unusual piece of legislation in the Hong Kong statute book. The penalties are very much more severe than, for instance the commission of a similar offence under the Summary Offences Ordinance. In these circumstances, it was desirable that the decision to prosecute under this section should receive close scrutiny from the Attorney General and that the Attorney General's consent should be obtained before the prosecution went ahead. It was clearly for this reason that subsection (5) was included in this section. The terms of the subsection are accurately set out in paragraph 2 of the Magistrate's case stated.

11. In my view, although the first part of the subsection is aimed at protecting the individual the second part of the subsection provides an exception to that protection.

12. The words "this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of a person for any such offence .......'' should not be regarded as superfluous, as stated by Mrs Chui in paragraph 4 of the Case Stated.

13. S. 9(1) of the Magistrates Ordinance empowers a Magistrate where complaint or information laid before him is substantiated by oath to issue a warrant to arrest the defendant and bring him before a Magistrate to answer the complaint or information. Subsection (2) of the same section provides that where a defendant is arrested under a warrant issued under subsection (1), he shall be brought before a Magistrate, who may adjourn the hearing and deal with the defendant in accordance with section 20. Section 20 enables the Magistrate before the hearing to adjourn the case on such conditions as he thinks fit and to release the defendant on bail or commit him to custody. Clearly the first of these two subsections and the first part of the second subsection could not be complied with, if the words which Mrs Chui says are superfluous were not included in subsection (5) of Section 33. They enable the Magistrate to issue such a warrant where a complaint or information is laid before him and is substantiated on oath and for the defendant to be arrested even though the consent of the Attorney General has not yet been obtained.

14. Similar provisions in respect of indictable offences appeal in Sections 72, 73 and 79 of the Magistrates Ordinance.

15. With regard to the words "But this subsection shall not prevent .......... the remand in custody or on bail of a person charged with any such offence", again they are not superfluous and do not refer to the actions of the police as Mr Selwyn So suggests. 'Remand' is a word which is commonly used to cover the situation where a court orders a person to be kept in custody pending the return date. It is also used when a person is released by a court on bail to a return date. It is specifically used in section 79 of the Magistrates Ordinance which gives the Magistrates Court power to remand an accused person, both in custody or on bail, until the return date, in respect of committal proceedings. The word does not specifically appear in section 20 of the Magistrates Ordinance but the powers in Section 20 are exerciseable when a defendant is brought before a Magistrate under S. 19(2) above.

16. In my judgment, it is clear that the legislature intended that despite the fact that the consent from the Attorney General had not yet been obtained, a Magistrates Court should be empowered to remand a prisoner charged with this offence in custody or on bail for a reasonable length of time to enable the Attorney General to familiarise himself sufficiently with the facts of the case, in order to exercise his discretion properly whether to grant or withhold his consent.

17. Section 52 of the Police Force Ordinance is not one of the clearest pieces of legislation but it appears to me that the intention is that no person may be held by the police in custody in excess of 48 hours from the time of his apprehension without being brought before a Magistrate, unless a warrant for his arrest and detention under any law relating to deportation is applied for, in which case he may be detained for a period not exceeding 72 hours from the time of such apprehension. Even within the 48 hour period the prisoner should be brought before the magistrate "as soon as practicable". This view receives support from the decision of the Acting chief Justice in Chiu Chung Keng & Others and the Commissioner of Prisons and The Commissioner of Police⁽¹⁰⁾.

18. In these circumstances it would be undesirable in the public interest that a decision by the Attorney General whether to consent to the prosecution or not should be taken without proper examination of the facts of the case. There is a discretion on the part of the Magistrate to remand on bail, if she considers it appropriate, in the circumstances of the individual case. The Magistrate should approach the exercise of her discretion not with any preconceived ideas against one party or the other. The discretion should be exercised judicially having regard to what is reasonable in the circumstances of each case and with the interests of not only the defendant but also the community being taken into consideration. In the light of paragraphs 9 to 12 of her Case Stated that was not done in these cases.

19. In my judgment, the answer "yes" must be given to both questions posed.

20. The orders refusing an adjournment and striking out the Prosecution are set aside and the three cases will therefore be remitted back to the Principal Magistrate with a direction to deal with each according to law.

(1) Magistrates Appeal 817/87

(2) (1889) 1 C.B.D. 513

(3) [1963] A.C. 557

(4) [1918] A.C. 541

(5) [1954] 3 AER 514

(6) [1983] 3 AER 23， at p. 28

(7) [1979] H.K.L.R. 141

(8) C.A. 20/87

(9) M.A. 680/87

(1) M.A. 817/87

(6) [1983] 3 AER 23, at p. 28

(9) M.A. 680/87

(10) (1950) 34 H.K.L.R. 65