ATTORNEY GENERAL v. TAI LIN RAKO SERVICES LTD

-----------------

HEADNOTE

-----------------

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1228 OF 1990

-----------------

JUDGMENT

-----------------

         This was an appeal by way of case stated.

1. However, Mr McCoy, who represented the respondent on the appeal, took a preliminary point on jurisdiction and I had to decide that point before going on to consider the merits of the case stated, should that have become necessary.

2. The case stated procedure is set out in sections 105 to 112 of the Magistrates Ordinance, Cap. 227. Section 105 requires either party to the proceedings, who wish to question a conviction or an acquittal or other order, to apply in writing to the magistrate to state and sign a case within 14 clear days after the magistrate has made his decision.

3. Section 106 requires the appellant to transmit the case to the Registrar within 14 days after its delivery to him by the magistrate. Section 106 also requires him, before doing that, to give notice in writing of the appeal to the other party and to send a copy of the case to the other party.

4. Mr McCoy submitted that this appeal was incompetent, and that the High Court, therefore, had no jurisdiction to hear it, because the appellant failed to give to the respondent notice that the appellant had appealed by way of case stated within (a) 14 days of the application to state a case directed to the magistrate; or (b) within a reasonable time; or (c) before transmitting the signed case to the Registrar, Supreme Court.

5. Mr McCoy acknowledged that there was no requirement in section 105 that the appellant should notify the respondent. However, he argued as his secondary point that it was a matter of fairness and natural justice, and in accordance with common law and common sense, that there should be a requirement upon the appellant to do so.

6. His main argument was that there was certainly a requirement under section 106 that the appellant give notice in writing of the appeal and send a copy of the case stated to the respondent before the case was transmitted to the Registrar (which must be done within 14 days after the case has been delivered to him). He submitted that any failure to comply with section 106 rendered the case incompetent and left the High Court without jurisdiction.

7. I will deal with that point first. There was no dispute that the application under section 105 to the magistrate to state a case was made by the appellant on the 3rd May 1990. There was further no dispute that the case was delivered to the Registrar, Supreme Court on the 31st August 1990, and that the respondent was notified of the appeal on the 1st September 1990,

8. Mr McCoy's submission was that the provisions of section are mandatory and not directory, and that as the appellant failed to notify the respondent of the appeal until after he had transmitted the case to the Registrar, Supreme Court, that the appeal was rendered incompetent.

9. In support of that submission, Mr McCoy referred me to a line of English authorities he claimed was unbroken since 1861. He referred me particularly to the Duke of Atholl v. Read [1934] 2 KB 92; that case dealt with section 2 of the Summary Jurisdiction Act 1857 which provided that an appellant by case stated, after receiving the case signed by the justices, shall, within three days after receiving such case, transmit the same to the court ". first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party to the proceeding ..". It can readily be seen that the terms of section 2 of the Summary Jurisdiction Act 1857, insofar as they relate to the notification of the appeal to the respondent and the forwarding of the case stated to the respondent, are almost on exactly the same terms as section 106 of the Magistrates Ordinance. The Duke of Atholl, having been convicted of an offence contrary to the Lotteries Act 1823, applied to the magistrate to state a case for the opinion of the High court. His solicitor filed the case stated in the High Court at the same time as he notified the solicitor for the prosecution that he had done so and forwarded to him a copy of the case stated. It was held that the giving of the notice of the appeal with a copy of the case stated to the respondent before the case is transmitted to the High Court is a condition precedent to the jurisdiction of the Court to entertain the appeal and cannot be waived. In his judgment, Avory, J. said: -

"I regret to have to come to the conclusion that we cannot give effect to either of these applications. With regard to the first, that the appellant may be given leave to proceed with his appeal notwithstanding the fact that the case was transmitted to the Court before notice in writing and a copy of the case had been given to the respondent, I have come to the conclusion that it is impossible to give effect to that application consistently with the decided cases, which have held that the giving of the notice of appeal with a copy of the case stated to the respondent before the case is transmitted to this Court, is a condition precedent which cannot be waived, and without compliance with which this Court has no jurisdiction to entertain the case stated."

He quoted with approval the case of. Ashdown v. Curtis (1862)31 LJ (MC) 216 and said:-

"Probably the strongest case against the application is Ashdown v Curtis (1862)31 LJ (MC) 216, where it was held that 'if notice of Appeal under the statue 20 and 21 Vict. c. 43, s. 2, be not given to the respondent before the case is lodged in Court the case will be struck out. It is not sufficient to post the notice of appeal to the respondent within three day allowed for lodging the case, if it does not reach the respondent until the day after the case is transmitted to the office."

Charles, J. had this to say in the same case:-

"With the same reluctance that was expressed by  my Lord, I agree that this application to us fails. Indeed, were we ^to come to any other conclusion it would be contrary to every decision since 1859. This matter has been considered again and again whether or not the words which I am about to read are conditions precedent to the hearing of the appeal: 'the Appellant shall, within three days after receiving such Case, transmit the same to the Court named in his application, first giving notice in writing of such an appeal' and so forth and so on. In 1859, in Woodhouse v. Woods 29 LJ '(MC) 149, 150 Blackburn, J. said: 'The Court has no jurisdiction to hear the appeal, except by this Act of Parliament; and the second section gives that jurisdiction, and uses the words 'first giving, notice,' etc. If the legislature intended to say that the giving of such notice should be a condition, precedent to our hearing the appeal, I see no other words which could have been used. The legislature must be considered to have made it a condition precedent.' That decision was approved in the case which my Lord has referred to, of Ashdown v. Curtis (31 L.J. (M.C.) 216). In 1906 the matter was again considered in Rust v. The Churchwardens of St. Botolph, Bishopsgate. Lord Alverstone C.J. said, 94 L.T. 575, 576, sharing the feelings of Lord Russell of killowen C.J. expressed in the case of Hill v. Wright and Wilson (1896) 60 J.P. 312, that he gave effect to this preliminary objection with reluctance. Then he goes on: 'But I consider the practice is too rootedly fixed to enable us to overrule it. It is a statutory condition.'"

10. Another case to which Mr McCoy referred was Edwards v. Roberts (1891)1 QB 302. That decision was on all fours with the Duke of Atholl and Ashdown. In that case also it was held that the court had no jurisdiction to hear appeal against a decision of justices by way of case stated unless the appellant had given the respondent notice in writing of the appeal together with a copy of the case before transmitting the case to the court.

11. In Michael v. Gowland [1977]1 WLR 296 it was held that the period of 14 days from the date of the justices' decision in which to apply to the justices under section 87(2) of the Magistrates Court Act 1952 (the equivalent of section 105 of our Magistrates Ordinance) was mandatory, and since it was a condition precedent to the stating of a case to the justices, the Divisional Court of the Family Division had no power to extend that period. The application was refused on that basis. The decision in Michael v. Gowland was expressly approved in Bristol & West Building Society v. Hickmott (1980)144 JP 443; there the English Court of Appeal held that the provisions of section 87(2) of the Magistrates Court Act 1952 were mandatory and that the court could not extend the time of 14 days stated in that Act.

12. Mr Lugar-Mawson, who appeared for the appellant, referred me to the case of The Attorney General v. Lo Chi kiu and another MA250 of 1989. In that case Wong J. held that the failure by the Attorney General to transmit the case stated to the Registrar within 14 days after the delivery of the case to him in compliance with section 106 of the Magistrates Ordinance, Cap. 227 was not fatal to the High Court's jurisdiction to hear the appeal, finding as he did, that the terms of section 106 were directory and not mandatory. He held that it was within his discretion to grant leave for the transmission of the case to the Registrar out of time which he proceeded to do. That decision of course was entirely at odds with the decisions in that whole line of English authorities to which I have already referred. In coming to that decision, Wong, J. relied on two decisions of the Court of Appeal The Queen v. Lam Hon Cheung, Cr.App. No. 167 of 1985 and the Attorney General v. Lau Shek Man and others App. for Rev. No. 4 of 1987.

13. In the first of these cases, the Court of Appeal were dealing with section 81(A) of the Criminal Procedure Ordinance which relates to the Attorney General's right to apply to review a sentence. In that case, documents which, according to the section, must accompany the application for review, had not in fact bean filed with the Registrar. These were the opening speeches of counsel, the arguments on a submission of no case to answer, and the closing speeches of counsel. It was obvious that none of these documents could have been of any relevance to the question of a review of sentence. In that case, the court found that the terms of section 81(A) which require that "the record of the whole of the proceedings before him other than the evidence given in any trial that took place in these proceedings" should be part of the documentation which must accompany the application was not a mandatory requirement, and that their absence was not fatal to the court's jurisdiction. In that case, the court said this:

"We think, therefore, that as a matter of common sense, we must view the situation form the stand whether or not the Respondents have been prejudiced by the omission. We find that that has not happened and therefore we will allow the Review to proceed."

14. In the second of the cases referred to or relied upon by Wong J., The Queen v. Lam Hon Cheung, the Court of Appeal found that the failure of a trial judge to arraign the defendant did not vitiate a succeeding trial provided no objection was raised. The court followed the reasoning in the case of R. v. Williams in which the English Court of Appeal, taking the view that it was quite clear that a plea of not guilty was intended accepted that the right to be arraigned had been waived.

15. It seems clear that Wong J. was never referred to any of the authorities mentioned here, which, though not strictly binding upon him, present a compelling body of opinion that in my view is unassailable. As well as which I do not find the ratio in either The Attorney General v. Lau Shek Man and other or The Queen v. Lam Hon Cheung helpful in deciding whether the terms of section 106 of the Magistrates ordinance are mandatory or directory. Neither of these cases it seems to me dealt with matters that went to jurisdiction.

16. Indeed, I am satisfied on the basis of the authorities I have read and the submissions I have heard as well as on a consideration of the legislation itself that I must come to the conclusion that the terms of sections 105 and 106 of the Magistrates Ordinance are mandatory, that failure to comply strictly with their terms renders the appeal by way of case stated incompetent and deprives this court of jurisdiction.

17. That would be sufficient to dispose of this appeal. However, I have been asked to rule on Mr McCoy's second ground of appeal. That is to the effect that the plain intention of the legislature cannot have been to deprive a party to an appeal of notification of the fact that that appeal is underway. Mr McCoy submitted that the rules of natural justice, common sense and common law all dictated that notification must be given to a respondent in an appeal if not immediately upon the appellant indicating his intention to appeal, then certainly within 14 days or a reasonable time thereafter.

18. For this part of his argument, Mr McCoy relied on the case of Cooper v. Wandsworth District Board of Works (1863)14 CB (NS) 180. In that case, where legislation permitted the District Board to alter and demolish a house where the builder neglected to give notice of his intention to build seven days before proceeding, the court held that that did not empower the Board to demolish the building without first giving the party, guilty of the omission, an opportunity of being heard.

19. It seemed to me that that case is distinguishable from the present case. The demolition of the house in Cooper can be seen as a final determination of a matter, whereas the application for a case stated is merely the first stage in the appeal procedure which culminates in the hearing in court. There is ample provision within the Magistrates Ordinance to ensure that the respondent is notified of the appeal some time prior to the actual hearing. As was stated by Lord Reid in Wiseman and another v. Borneman and others [1969]3 All E.R. 275 at 277:-

"Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

20. The justice mentioned there by Lord Reid is, I felt, properly served by the terms of the Magistrates ordinance where these relate to the stated case procedure. It is there provided that in proper time the respondent is notified of the proceedings, so that he can meet the arguments of the appellant at the hearing before the single judge. It is, in other words, by no means clear that the statutory procedure is not sufficient to achieve justice. No additional steps are required to supplement that procedure in response to the dictates of natural justice.

21. I therefore take the view that it cannot be held in this case to be necessary to impose upon the terms of sections 105, 106 and 107 of the Magistrates Ordinance any principle of common law which is required to ensure that fair play or natural justice be done. The statute already ensures that.

22. This appeal is dismissed.