ATTORNEY GENERAL v. G. WATSON, ESQ., PERMANENT MAGISTRATE

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. I gave an "ex tempore" judgment on May 18th 1986. Because of a mechanical fault in the recorder, that judgment was not recorded.

2. This was an application for Judicial Review directed to G. Watson, Esq., the Magistrate at Fanling for an order of mandamus directing the Magistrate to hear and determine an information issued by the Attorney-General for an offence contrary to s.6(4) of the Crown Land Ordinance, Cap. 28. The facts are very brief and are set out in the affidavit of WONG Kwai-huen Albert, the Crown Counsel involved in the case.

3. The Defendant to the information carried on go-kart activities and was alleged to have carried them on in breach of a notice issued on September 16th 1985. At the hearing, the Magistrate, of his own volition, questioned his jurisdiction to hear and determine the information. He permitted evidence to be called by the Defendant and ruled that he had no jurisdication.

4. The reasons for the Magistrate's action are set out in his minute of proceedings - D. P.1.

5. In my judgment, the conclusions of the Magistrate were clearly wrong.

6. Part II of the Crown land Ordinance deals with the occupation of unleased land. The notice, to which I have referred, was issued under s.6. (1) and as the occupation had not ceased the information was brought under s.6(4). Other offences, under Part II, are created by s.4(A) and s.7(4). These offences are summary offences - see s.89 Interpretation and General Clauses Ordinance. The magistrate accepted that the offence before him was a summary one, but considered that his jurisdiction was ousted as the High Court of Hong Kong also has summary jurisdiction. The magistrate's reasoning is difficult to follow, but he appears to be saying that the Attorney-General is exercising rights as a landlord and not on behalf of the public. This, in my judgment, is wrong.

7. The Attorney-General brings these proceedings on behalf of the public - the rights he is exercising are public not private ones. The prevention of the occupation of unleased land is for the benefit of the public.

8. The magistrate also appeared to confuse his role in determining such an information. Under s.6(4), there are a number of issues of fact to be determined:

9. The offence is that of occupation continuing after the notice; the mere assertion by a defendant that the land, or part of it, is not unleased land does not raise any issue as to title to the land. The defendant is, however, entitled to say that the land in question has been leased, etc. and therefore he has not committed an offence - (see s.2 the definition of "unleased land". )

10. This offence is clearly a summary offence and it is for the magistrate to determine it on the evidence which is called before him. I would stress that Part II offences, as a matter of common sense, should be determined quickly and the magistrates' courts are best equipped so to do.

11. Although, as a matter of principle, magistrates should be vigilant to ensure that the issues before them are within their jurisdiction, they are entitled to rely upon advocates drawing to their attention any doubt as to their jurisdiction. If no such doubt is raised, then the magistrate should be equally vigilant to ensure that his own initiative in questioning his jurisdiction is not clouded by extraneous matters.

12. I noted that at the hearing before me, the justification by Mr. Watson of his decision was centred on s.12 of the New Territories Ordinance (Cap. 9). This point was not raised by anyone below, not even himself.

13. I do not consider that it has any relevance to my determination. Many offences concerning land are summary ones, and the whole object of the summary process would be frustrated if, in the New Territories, it was only the High Court or District Court who determined them. Section 12 in no way restricts the bringing of informations for summary offences, under the Crown Land Ordinance, before a magistrates' court.

14. The magistrate's approach here was wrong and I can see no reason why he should have declined jurisdiction.

15. I would only add this - the Defendant was not represented before me, but Mr. Watson appeared in person. As a matter of courtesy, I listened to what he had to say. He sought to uphold his own decision. No allegation as to his character or "bone fides" had been made - all that was being asserted was that he had erred in law. In my judgment, unless there are special circumstances, it is not necessary for magistrates to appear by counsel; it is a wrong practice for magistrates to appear in person and argue their point of view in the High Court. It is embarrassing both for the Judge and the Magistrate. Although therefore I listened to what Mr. Watson urged upon me and considered it, this should not be taken as my approval of the practice of a magistrate appearing in person in the High Court.

16. I made the order of mandamus as sought in the Notice of Motion.