THE SECURITIES AND FUTURES COMMISSION v. NEW CHUAN KONG INVESTMENT CO. LTD.

1998, No. MA31

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 31 OF 1998

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D E C I S I O N

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1. The Respondents ask for a certificate from me as a step in taking certain matters to the Court of Final Appeal. I say "a step" because whether or not I give a certificate, it will be for the Appeal Committee to say whether these matters can proceed to the Court of Final Appeal.

2. I have before me two documents prepared by the Respondents. The first document is headed "The Respondents' Confirmed Notice of Application to Apply for a Certificate to Appeal to the Court of Final Appeal" and dated 23rd January 1999 ("the Notice"). The Notice reads:-

"1. Her Ladyship has made 2 rulings in the course of this appeal. Namely to rule that a private prosecutor appealing by way of Case Stated who/which does not enter into a recognizance as required by S110(1) Magistrates Ord is not deemed to have abandoned its appeal in terms of S110(3) Magistrates Ord. The second ruling was to award costs against the Respondents' in an interlocutory decision, notwithstanding that the Costs in Criminal Cases Ord Cap 492 does not give jurisdiction to award costs against a Respondent to an appeal by Case Stated in these circumstances, nor is there any such precedent.

2. The Respondents' will apply for a Certificate to take these 2 points to the Court of Final Appeal. Her Ladyship's decision has been considered so important that it has been reported in the Hong Kong Law Reports and will bind every Magistrate in Hong Kong.

3. As was agreed between the parties and Her Ladyship, the only appropriate time to apply for a Certificate is upon the delivery of the judgment finally deciding the merits of the appeal.

4. The Respondents' respectfully confirm their notice to apply for such a Certificate in any event."

3. As can be seen, the Notice speaks of my having made two "rulings".

4. Perhaps the terminology does not matter. But I am not persuaded that the word "ruling" is apt. What happened was that the Respondents took out a motion, in the appeal, asking for a declaration that the appeal be dismissed and/or deemed abandoned by operation of s. 110(3) of the Magistrates Ordinance, Cap. 227, for default in completing a recognisance within the prescribed time.

5. I gave a judgment dismissing that motion. When counsel for the Appellant asked for the costs, the Respondents' junior counsel said that he could not resist costs. As it seems to me, this was not an award of costs in an interlocutory ruling. It was an order as to costs on an appeal within the meaning of the wide words of s. 120(1) of the Magistrates Ordinance which begins: "On any appeal to which section 105 or section 113 applies, the judge may make such order as to costs, as he may think fit ..." The order was made on this appeal, in a separate motion which, if well-founded, would have put an end to the appeal.

6. As for the Costs in Criminal Cases Ordinance, Cap. 492, I do not think it applies here. First of all, I think that the Ordinance which applies here is the Magistrates Ordinance, Cap. 227: in particular, s. 120(1) thereof for the reasons which I have given. Secondly, the Costs in Criminal Cases Ordinance does not apply to these proceedings. The offences alleged against the Respondents are said to have happened between 1st August 1995 and 30 April 1996. That is well before the Costs in Criminal Cases Ordinance came into operation on 17 January 1997, and s. 25 of this Ordinance says that it shall not apply to criminal proceedings in respect of offences committed before it came into operation.

7. This morning, I gave judgment in the appeal itself, allowing the appeal. I did so with costs. Counsel for the Respondents concedes that I have jurisdiction to award costs to the Appellant, but submitted that I ought not to do so. I took the view that it would be appropriate to do so in all the circumstances. The decision of the Magistrate was one he made upon a submission by the Respondents. It is quite natural for the Appellant to take the point on appeal, and they have succeeded. I did no more than to allow costs to follow the event and whether it is usual or unusual to award the prosecution its costs of a successful appeal by it by way of case stated, I thought it appropriate to award such costs in the present case.

8. On the question of the costs of the Respondents' motion for a declaration for a dismissal or deemed abandonment, there is one matter being one as to the broad merits, which I would mention even though my decision on whether or not to grant a certificate does not rest on it. That matter is this. Having allowed the Appellant's appeal, I have awarded the Appellant its costs of the appeal. If the Respondents' motion for a declaration of dismissal or deemed abandonment were indeed an interlocutory matter, and if I had not already awarded the Appellant its costs of that motion, those costs would have formed part of the Appellant's costs of the appeal. So the Appellant would have got those costs anyway.

9. In anticipation of my decision allowing the appeal, the Respondents' counsel prepared a document headed "Grounds for Certification" which he handed up for the purpose of seeking a certificate even in respect of that decision in the appeal itself.

10. The body of this document reads:

"1. Is an appeal by case stated by a private prosecutor, (pursuant to S105 Magistrates Ord), deemed to be abandoned (pursuant to S110(3) Magistrates Ord), if the prosecutor does not within 3 weeks of the application to the Magistrate to state a case, enter into a recognizance (pursuant to S110(1) Magistrates Ord)?

2. Does the High Court in an appeal by case stated (pursuant to S105 Magistrates Ord) have jurisdiction to award costs (pursuant to S120(1) Magistrates Ord, or otherwise)? in favour of a Prosecutor-Appellant against a Defendant-Respondent upon dismissing a preliminary Motion by the Respondent for a Declaration that the appeal is deemed to be abandoned?

3. Does S67 Leveraged Foreign Exchange Trading Ord (Cap. 451) apply to both summary and indictable offences (whether triable summarily or on indictment) and in particular to an offence laid by Information for Summons under S3(1)(a) and 3(2)(b) of that Ordinance?"

11. It is a serious step for a lower court to certify any point or points for the Court of Final Appeal. Before I did such a thing I would require the point or points to be formulated with precision after mature consideration.

12. The way this matter now stands before me does not, in my judgment, reflect such precision in regard to any of the points in respect of which the certificate is sought.

13. All things considered, I am not persuaded to certify any of the points raised. I feel I should leave the whole of the matter to the Appeal Committee, and I decline a certificate.