THE QUEEN v. TONG YUEN

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J U D G M E N T

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Power, J.A.:

1. The applicant faced a charge of possession of an imitation firearm, namely a toy pistol. He pleaded not guilty to that charge but was, after trial in the District Court to which the matter had been transferred from the Magistrate's Court, found guilty and now appeals against that conviction.

2. The first ground of appeal, which we have dealt with as a preliminary matter, alleges that there was no jurisdiction in the District Court to hear or determine the matter as the charge was summary and was, therefore, triable only in the Magistrate's Court.

3. Mr. King who appears for the applicant refers firstly to the Firearms and Ammunition Ordinance s.20(1) which reads:

"Subject to sub-sections (2) and (3), any person who is in possession of an imitation firearm commits an offence and is liable to imprisonment for two years."

Mr. King points out that s.19 and s.21 of the Ordinance make clear the intention of the legislature. That certain offences may be dealt with, if the Attorney General sees fit, "upon indictment", appears from the use of those words in the sections themselves. No such words appear in s.20.

4. Mr. King next refers to s.89(1) of the Interpretation & General Clauses Ordinance which reads:

"Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless :

(a)     the offences is declared to be treason, felony or misdemeanour;

(b)     the words 'upon indictment' appear; or

(c)     the offence is declared to be 'a misdemeanour triable summarily'; or

(d)     the offence is transferred to the District Court in accordance with Part IV of the Magistrates Ordinance."

The only part of the section that might have application to the present case is s.89(1)(d) as the offence was transferred to the District Court in purported accord with Part IV of the Magistrates Ordinance. The question that faces this court is whether it was in fact in accord with that part.

5. Part IV of the Magistrates Ordinance to which reference is next made provides, in s.88(1), that:

"Notwithstanding anything contained in any other provision of this Ordinance, whenever any person is accused before a magistrate of any indictable offence (and those words are of particular importance) not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Attorney General -

(a)     shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court; and

(b)     may, if the person is also accused of, any offence triable summarily only, make an order transferring the charge or complaint in respect of the summary offence to the District Court."

6. The definition in the Magistrates Ordinance of "indictable offence" is not of any real assistance as it does no more than say that an indictable offence is an offence for which the magistrate is required to commit the accused to prison for trial in the High Court.

7. The material section for our consideration is then section 89 of the interpretation & General Clauses Ordinance. This section states clearly that all offences "shall be triable summarily" unless they fall within one of the four categories set out therein.

8. Reference has been also made to s.74 of the District Court Ordinance which states that the court shall have jurisdiction to hear and determine in accordance with the provisions of the Ordinance such charges as the attorney General may lawfully prefer under the provisions of s.75. Section 75(1) provides:

"Where a charge or complaint has been transferred to the court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance the Court shall have jurisdiction and powers over all proceedings in relation to the offence therein such as the High Court would have."

This again brings us back to Part IV and to s.89(1) of the interpretation & General Clauses Ordinance.

9. It is the submission of Mr. King that as s.21 which creates the offence contains no indication that it can be tried other than summarily, it must be so tried unless it falls with one of the categories set out in s.89(1) of the Interpretation & General Clauses ordinance. He submits, unarguably, that it does not fall within categories (a), (b) and (c) and further that (d) does not create any new category but is, in reality, a provision dealing only with offences transferred from the Magistrate's Court to the District Court which must, or they could not have been properly transferred under s.88(1) of the Magistrate's Ordinance, have been designated indictable offences. He submits, in the outcome, that as none of the categories apply the offence under s.21 was one that could only be triable summarily and that the District Court judge had no jurisdiction to deal therewith.

10. Mr. Bruce, who appears for the Crown, conceded that he was unable to provide any argument against the contentions of Mr. King. It must immediately be said that it was, as Mr. King has informed us, Mr. Bruce, with his customary fairness who pointed out the existence of this ground of appeal to the legal advisers of the applicant.

11. It is, in our view, clear that this was prima facie an offence that was triable summarily and was not one which by virtue of s.89 could be tried otherwise than summarily and that the District Court did not, therefore, have jurisdiction to hear the matter. Jurisdiction remained vested in the magistrate.

12. We give the applicant leave to appeal against conviction, the hearing of the leave will be treated as the hearing of the appeal and the conviction will be quashed and the sentence set aside.

13. As I have have already said the quashing of this conviction is without prejudice to the jurisdiction of the magistrate as the offence has, at all times, remained within that jurisdiction. Further it has not been contended by the Crown that the material ground of appeal should have been the subject of an application for judicial review.