X v. SECRETARY FOR JUSTICE

CACV 318/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 318 OF 2008

(ON APPEAL FROM HCAL 60 OF 2008)

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J U D G M E N T

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Hon Cheung JA :

The appeal

1.  The applicant is a minor and was charged with the offence of murder.  She was first brought before the Juvenile Court of Tuen Mun Magistracy on 13 December 2007.  After a series of appearances at which she was legally represented, on 22 April 2008, Mr. Peter Hui, Permanent Magistrate, on the joint application of the defence and prosecution, ordered the case to be dealt with by the adult court in the same Magistracy instead of by the Juvenile Court.  The matter that was to be dealt with was for the continuation of the committal proceedings of the trial which was to be conducted in the Court of First Instance of the High Court. 

2.  Mr. W. K. Kwok, Principal Magistrate, who was seized of the matter at the adult court on the same day, however, was of the view that the committal proceedings should be dealt with by the Juvenile Court and transferred the case back to the Juvenile Court.

3.  The applicant who was represented by her father, applied for judicial review of Mr. Kwok’s decision.  The Secretary for Justice supported the application.  A declaration that a permanent magistrate of the Juvenile Court has no jurisdiction to entertain in that Court committal proceedings concerning a charge against a child or young person of an offence of murder was among the reliefs sought in the judicial review.

4.  McMahon J who heard the judicial review refused the application.  The Secretary for Justice now appeals the judgment. 

5.  The Court was informed by the parties before the hearing of the appeal that the Secretary for Justice would offer no evidence against the applicant in respect of the charge.  As the judicial review raised a matter of substance on the jurisdiction of the Juvenile Court, this Court decided to proceed with the hearing of the appeal notwithstanding the intended dismissal of the charge.  Subsequent to the hearing the Secretary for Justice informed the Court that he had on 19 June 2007 offered no evidence against the applicant of the charge and the charge was dismissed.

The Juvenile Court

6.  The Juvenile Court was established by the Juvenile Offenders Ordinance (‘JOO’) (Cap 226) in 1933.  The long title of JOO is ‘To make provision for juvenile courts and juveniles’.

7.  Section 3A provides that,

‘(1)  Courts constituted in accordance with this section and sitting for the purpose of hearing any charge against a child [i.e. under the age of 14] or young person [i.e. under the age of 16] or for the purpose of exercising any other jurisdiction conferred on juvenile courts by or under this or any other Ordinance shall be known as juvenile courts.

(2)  A juvenile court shall consist of a permanent magistrate appointed by the Chief Justice.

(3)  A juvenile court shall have jurisdiction to hear and determine a charge against a child or young person of any offence other than homicide.

(4)  A juvenile court shall have all the powers of a permanent magistrate and, subject to this Ordinance, the Magistrates Ordinance (Cap 227) shall apply to proceedings before a juvenile court as it applies to proceedings before a magistrate.’  (emphases added)

8.  Section 3C(1) further provides that,

‘ (1)  Subject as hereinafter provided, no charge against a child or young person shall be heard by a court of summary jurisdiction which is not a juvenile court.’

9.  When the Juvenile Court is sitting, only the court officers, parties to the case, their lawyers and witnesses and other persons concerned with the case may be present in Court.  Although news reporters may also be present, the Juvenile Court may exclude their presence on the ground that it is in the interest of the juvenile to do so: see section 3D(3) and (4).

Committal for trial

10.  As I understand the procedure, when a child or young person (‘the juvenile’) is faced with a charge of either summary or indictable nature, he is first brought before the Juvenile Court.  The summary offence is, of course, tried there.  In respect of indictable offence, it may also be tried there except when the prosecution applies for the charge to be transferred to the District Court or asks for the juvenile to be committed to the High Court for trial.  Part III of the Magistrates Ordinance deals with committal proceedings for indictable offences.  Section 80C deals with the procedure to be followed on the return day, after the accused appears or is brought before a magistrate upon an allegation of the commission of an indictable offence and the complaint and witness statements have been served before the return day.  Section 80C provides that unless the accused elects to have the charges heard at a preliminary inquiry, he will be committed without such an inquiry.  If the accused elects to have the charge against him heard at a preliminary inquiry, there shall be a preliminary inquiry which will be held pursuant to section 81.  This section makes provision for the taking of evidence for and on behalf of the prosecutor, with liberty to the accused or his counsel to cross-examine witnesses produced against him, and for the recording of evidence: see Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836 at 845. 

11.  The nature of committal proceedings was explained by Barnes J in Attorney General v. PH O’Donnell Esq, Magistrate [1985] 2 HKC 283 at 287 ：

‘ That change in the nature of the preliminary examination changed the underlying purpose of the committal proceedings only to the extent that whereas originally the aim was to ensure that everyone charged with an indictable offence would appear at his trial in a higher court, the new aim became merely to ensure the appearance of those charged against whom the evidence was sufficient to warrant their being so put on trial.  (Sir Carleton Kemp Allen, The Queen’s Peace p 148: Holdsworth, History of English Law, Vol I, pp 296-­7; Vol IV pp 528-9; Vol V p 191)’

12.  That the Juvenile Court has the jurisdiction to commit is recognized by section 7(1) of the Juvenile Offenders Ordinance which provides that,

‘ (1)  A court on remanding or committing for trial a child or young person who is not released on bail shall commit him to custody.’

13.  The procedure for committal proceedings as specified by section 80C of the Magistrates Ordinance is applied to the Juvenile Court by virtue of section 3A(4) of the Juvenile Offenders Ordinance.

The issue

14.  There is no controversy that when a juvenile is faced with a homicide charge, the Juvenile Court has no jurisdiction to hear and determine the charge.  This is expressly provided for by section 3A(3).  What is at issue is whether the prohibition imposed on the Juvenile Court to hear a homicide charge also extends to the committal for trial of a homicide charge.

The judgment

15.  McMahon J in agreeing with the view of Mr Kwok held that,

‘ 14.  …… it is clear from the provisions of section 3A(3) that juvenile courts have jurisdiction to hear to finality all criminal charges concerning juveniles, except those involving homicide.  So far as those offences other than homicide are concerned, it appears clear also from the provisions of section 3C(l) that, except for the circumstances set out in section 3C(2) [i.e. joint charge with adult offenders] which do not apply to the present case, a juvenile court is to have exclusive jurisdiction over those charges as against any other court of summary jurisdiction.  To my mind that exclusive jurisdiction includes proceedings other than a “hearing and determination”.   It is not without meaning that section 3C refers to “hearings” only and that suggests quite strongly that all hearings involving juveniles, of whatever nature, are within the exclusive jurisdiction of a juvenile court as opposed to magistrates’ courts.

......

16.  Finally, in exercising its jurisdiction it appears clear, that pursuant to the provisions of section 3A(4), a juvenile court has all the powers of a permanent magistrate and that, by dint of section 3A(4) applying the Magistrates Ordinance to proceedings in a juvenile court, it has power to conduct committal proceedings under Part III of that Ordinance.

17.  It seems to me that committal proceedings must be a “hearing” for the purpose of the Ordinance and that the Ordinance itself distinguishes between that which is, generally, a hearing and that which is more specifically a “hearing and determination”.  See for example section 3A(1), section 3C(1) relating to a “hearing”, and section 3A(3), section 3C(2)(c) and section 3E(1) relating specifically to a “hearing and determination”.

……

18.  That being so, section 3C(1) is perfectly clear and specific in its terms.  If committal proceedings are a “hearing” as I find them to be, then a juvenile court is intended to have exclusive jurisdiction over committal proceedings relating to juveniles, and a magistrates’ court by the terms of section 3C(1) has no jurisdiction over such proceedings at all.’

16.  In respect of the prohibition imposed on the Juvenile Court to hear a homicide charge and its relationship with the Juvenile Court conducting committal proceedings on the homicide charge, the Judge held that

‘ 21.  ……That is, to regard the section 3A(3) prohibition on a juvenile court “hearing and determining” a homicide charge against a juvenile as not prohibiting it from conducting a hearing in the nature of committal proceedings or any other hearing short of a final determination.

……

22.  In my judgment both as a matter of reason and of precedent committal proceedings, whether a decision is made to commit or not, cannot be regarded as a “determination” of a matter. The reference to “determination” in section 3A(3) is a reference to a final determination.  That was made perfectly clear by the court in Yeung Wai Hung.  That being so, the hearing of committal proceedings in respect of a homicide charge against a juvenile by a juvenile court would not be a “determination” and would not offend the provisions of section 3A(3). 

23.  That interpretation avoids a construction of the Ordinance which otherwise requires section 3C(1) to have no effect so as to allow a court of summary jurisdiction other than a juvenile court, and contrary to the specific terms of section 3C(1), to have jurisdiction to conduct a hearing in respect of a charge faced by a juvenile.’

My view

17.  I agree with the Judge that the Juvenile Court has jurisdiction to conduct committal hearings of a homicide charge.  But I reach this conclusion by a slightly different route.

‘To hear and determine’

18.  First, I disagree that one can separate the words ‘to hear and determine’ in section 3A(3) as if each has a different meaning and separate function to perform.  The words are in fact a composite expression.  As pointed out by Bennion on Statutory Interpretation (5^th Edition) at page 1193 :

‘ A composite expression must be construed as a whole, but it is incorrect to assume that the whole is necessarily the sum of its parts.  Because a certain meaning can be collected by taking each word in turn and then combining their several meanings, it does not follow that this is the true meaning of the whole phrase.  Each word in the phrase may modify the meaning of the others, giving the whole its own meaning.

19.  In Mersey Docks and Harbour Board v Henderson (1888) 13 App Cas 595, Lord Halsbury LC at page 599 said :

‘ It certainly is not a satisfactory method of arriving at the meaning of a compound phrase to sever it into several parts, and to construe it by the separate meaning of each of such parts when severed.’

20.  In my view the composite expression ‘to hear and determine’ bears the same meaning as ‘to hear’.  To hear necessarily involves the making of a decision.  As Lord Blackburn stated in Sidney Faithorne Green v. Lord Penzance and others [1880-81] 6 AC 657 at 678 :

‘ Now comes the question, what does “hear” mean?  It was disclaimed, and no doubt justly disclaimed, that it was ever intended to argue that it only meant to hear what was said, and that it did not include determining.  Unless there be something which by natural intendment, or otherwise, would cut down the meaning and intention of the Legislature and make it less, I apprehend there can be no doubt that the Legislature, when they direct a particular cause to be heard in a particular Court, mean that it is to be heard and finally disposed of there.  And further, when they say that it is to be heard (meaning heard and finally disposed of) in a particular Court, they mean, unless there is something in the context which either by natural interpretation or by necessary implication would cut it down, that in all matters which are not provided for that Court is to follow its ordinary procedure.’  (emphasis added)

21.  By contrast, it was held by Lord Goddard CJ in Card v. Salmon [1953] 1 Q.B. 392 at 396 that when courts of summary jurisdiction sit as examining justice to commit a defendant charged with indictable offence to trial,

‘ They do not, however, come to any final decision when they are sitting as examining justices; they only come to a conclusion whether or not a prima facie case has been made out to send for trial.’

22.  Card was cited with approval in Atkinson v. United States of America Government [1971] A.C. 197.  Both of these cases were cited with approval in The Queen v. Yeung Wai Hung [1990] 2 HKLR 324.  The Court of Appeal there construed section 105 of the Magistrate Ordinance which allows a case stated within 14 days of the ‘the hearing and determination by a magistrate of any complaint’.  In that case after the facts were introduced upon the defendant pleading guilty, the magistrate vacated the plea and ordered a new trial.  The defendant sought to appeal against the magistrate’s decision by way of case stated.  It was refused by the Court.  Fuad VP held that :

‘ We hold that upon the true construction of s. 105 of the Ordinance (and there is no power elsewhere) a magistrate has no jurisdiction to state a case until there has been a final disposal of the case.’

23.  I, however, do not agree with the submission of Mr. Robert Lee S.C. who appeared together with Mr. David Leung as counsel for the Secretary for Justice that this interpretation is confined to the issue of whether the right to appeal by way of case stated has been engaged.  Card addresses the nature of a preliminary inquiry or committal proceeding in the context of whether it involves a hearing and determination. 

24.  In the present context when it is provided that a Juvenile Court shall have jurisdiction to hear and determine a charge, my view is that it means hearing and determining a charge to its finality.  In other words the Juvenile Court will try the young offender and reach a verdict on the charge.  It would be wrong simply to isolate the word ‘hear’ and on that basis construe it as enabling the Juvenile Court to commit the young offender to trial.

25.  Likewise when the words ‘to hear’ are used in the other sections of the Juvenile Offenders Ordinance, unless the context calls for a different construction, one should construe the words as bearing the same meaning as hearing and determining the charge.

The existence of jurisdiction or power

26.  In my view even if the words in section 3A(3) are to be construed in a composite way it does not mean that the Juvenile Court does not have the jurisdiction or power to commit a young offender faced with a homicide charge to trial.

27.  As a starting point the wording of this section does not prohibit a committal of a homicide charge.  It prohibits the hearing and determination of a homicide charge.  Even if, for the purpose of argument, committal proceedings involve a determination, it is still not a determination of the charge itself.  It is only a determination whether there is sufficient evidence for the charge to be tried.  Hence the prohibition to hear and determine a homicide charge in the Juvenile Court does not extend to the holding of committal proceedings of the homicide charge.

28.  In my view the jurisdiction to commit a homicide charge is conferred by implication by section 3A(1) in respect of the provision for ‘any other jurisdiction’, section 3A(4) in respect of the Juvenile Court exercising all the powers of a magistrate and section 7(1) which confers the Juvenile Court the power to commit for trial.

29.  As an alternative it may well be that the jurisdiction to hear a charge under sections 3A(1) and 3C(1) or to hear and determine a charge under section 3A(3) would also in the context of the Juvenile Offenders Ordinance confer a jurisdiction by implication to hold the committal proceedings.  The English Court of Appeal in R v. Tottenham Youth Court, ex parte Fawzy [1998] 1 All ER 365 at 368 expressed the view that :

‘ The concept of ‘hearing a charge’ is wide enough to embrace not merely summary trial but also an inquiry into offences as examining magistrates.’

30.  This interpretation would not fall foul of the prohibition imposed by section 3A(3) because the mischief that is being directed against is the hearing of the homicide charge itself by the Juvenile Court. 

31.  The Juvenile Offenders Ordinance is a very old legislation promulgated in 1933.  It created the Juvenile Court which exercises jurisdiction over juvenile offenders and juxtaposed it within the confine of the Magistrate Court.  Obviously the focus of the Juvenile Offenders Ordinance is the Juvenile Court and its conduct of proceedings.  In so doing it may not have spelt out clearly or fully all the jurisdictions that it may exercise other than hearing and determining a charge.  However, when a Court construes its provisions it must do so in a meaningful way, having taken into account the purpose of its existence.  Subject to specific provisions such as the ones relating to a joint charge with adult offenders, one of the main purposes of the Juvenile Offenders Ordinance is to ensure that juveniles, in view of their age, should be tried separately from other adult offenders and in a court setting which suits their age.  Hence the provisions relating to the exclusion of non parties and sitting in a court which has not previously tried an adult offender within one hour of the sitting of the juvenile court (section 3D(1)).  It also envisages hearing by a specialist magistrate.  As the Divisional Court observed in Tottenham Youth Court at 368,

‘ Parliament has expressed a general preference that cases involving youths should be tried by youth courts.’

32.  One may ask then why should there be a different practice when a juvenile is to be committed for trial in a homicide case?  One can understand and readily accept that the Juvenile Court cannot hear and determine a homicide charge against the juvenile because the Juvenile Offenders Ordinance expressly so provides.  But when it comes to committal proceedings, in the absence of an express statutory prohibition, one may ask what is the rationale for excluding this jurisdiction?  If the Juvenile Court does not have jurisdiction or power to commit a case to trial at all, then one may accept that, as a matter of uniformity in practice, committal for homicide charges should likewise be removed from the hands of the Juvenile Court.  But as pointed out earlier, this is not the case.  The provisions for committal in the Magistrates Ordinance are imported by reference through section 3A(4) and section 7(1) of the Juvenile Offenders Ordinance.  Juvenile Court has the jurisdiction or power to commit, otherwise the words in section 7(1) of ‘committing for trial’ would be superfluous.  The Secretary for Justice, unlike the applicant, is not advocating a total exclusion of the jurisdiction or power to commit by the Juvenile Court.  This being the case, one must ask where does the jurisdiction or power come from?

33.  It may then be argued that the Juvenile Court only has the jurisdiction to commit a particular indictable offence for trial when it has the jurisdiction to try that offence.  But there is no express provisions in the Juvenile Offenders Ordinance imposing such a restriction.

34.  It was argued that homicide being the most serious offence in crime, the jurisdiction to try this offence should be removed entirely from the Juvenile Court and this should include the committal proceedings as well.  I can see the justification for trying a juvenile charged with homicide before a jury in the High Court.  However, the fact is that committal proceedings are not conducted in the High Court but in the magistrate courts.  One can immediately see the absurdity of the situation if the proceedings are transferred from the Juvenile Court to the adult court of the magistracy : the judicial officers in both of these courts consist of the same magistrates.  The fact that committal proceedings in the adult court are conducted in an open setting cannot be a legitimate reasons for it to assume exclusive jurisdiction.  After all the magistrate there can also exclude the public from attending the proceedings.

35.  Ultimately the issue is one of jurisdiction.  In my view despite the lack of express provision conferring jurisdiction or power to commit a juvenile on a homicide charge to trial, reading the relevant provisions in the Juvenile Offenders Ordinance and the provisions of the Magistrates Ordinance relating to committal, such a jurisdiction or power exists by implication. 

Ambit of court of summary jurisdiction

36.  Mr. Dykes S.C. who appeared with Mr. Jason Wong for the applicant and supported the appeal by the Secretary for Justice, further argued that the Courts below had ignored that the Juvenile Court, as a court of summary jurisdiction, only has power to hear any charge against a juvenile but does not have the power to commit for trial on indictment. 

37.  Mr. Dykes relied on the similar wordings of ‘court of summary jurisdiction’ in section 46 of the English Children and Young Persons Act 1933 and its definition in the English Interpretation Act 1889.

38.  In my view the reference to ‘court of summary jurisdiction’ in section 3C(1) of Juvenile Offenders Ordinance is merely an expression used to describe the magistrate court in Hong Kong.  Even if there was a distinction in the jurisdiction of ‘court of summary jurisdiction’ in England, I do not consider it proper to import the same distinction in Hong Kong in the absence of the similar statutory provisions.

Conclusion

39.  Accordingly I would dismiss the appeal.

Hon Yuen JA :

40.  I agree that the appeal should be dismissed.  Leading counsel for both parties have referred the court to a number of cases but in my view the answer lies in the provisions of the Juvenile Offenders Ordinance itself.  There can be no doubt but that generally the “hearing” of a matter would include the court’s determination of it, as the exercise would be pointless otherwise.  But words must be construed in their context.  One cannot simply extract from s.3A(3) the phrase “hear and determine” and dissect only those words for examination without considering the words that immediately follow, as the words used are “hear and determine a charge ... of any offence other than homicide”.  In my view, the words “and determine” are there specifically to emphasize the legislative intention that a juvenile court has no power to proceed to a decision whether the accused was guilty of the charge. 

41.  It can be seen from other parts of the Juvenile Offenders Ordinance that where it was necessary to emphasize specifically the conclusion of a hearing where the court decides whether the accused was guilty of the offence charged, the draftsman has purposely used the words “hearing and determination” –

-  in s.3C(2)(c), if the fact that the accused is a juvenile is only discovered during the course of proceedings before any court other than a juvenile court, that court may choose to proceed with “the hearing and determination of those proceedings”, and  

-  in the converse situation in s.3E(1), if the fact that the accused is not a juvenile is only discovered during the course of proceedings in the juvenile court, that court may choose to proceed with “the hearing and determination of those proceedings”. 

In both these sections, the words “hearing and determination” are used to emphasize the court’s power to proceed to the conclusion of a hearing when it decides whether the accused was guilty of the offence charged.  These provisions support the view I have set out above. 

42.  As for committal, it is clear from s.7(1) that the juvenile court has jurisdiction to undertake committals.  Even where the accused is charged with homicide, since committal does not involve the court’s decision whether the accused was guilty of the offence charged, nothing in the Juvenile Offenders Ordinance prohibits the juvenile court from dealing with it.  In light of the purpose of the Ordinance which is to provide protection for juveniles who find themselves involved in a judicial proceeding, I think any ambiguity in the language should be resolved in favour of keeping committal proceedings in the juvenile court with its inbuilt measures for the protection of juveniles. 

Hon Wright J :

43.  The relief sought in the application for judicial review before McMahon J was a declaration that a permanent magistrate sitting in a juvenile court has no jurisdiction to entertain in that court committal proceedings concerning a charge against a child or young person of an offence of murder.  The question as to whether the Juvenile Court has concurrent jurisdiction with the Magistrates Court for the purpose of committal proceedings did not arise.

44.  For the reasons given by Yuen JA, I too would dismiss the appeal.

45.  I would add this : the prosecution on a charge of murder arose from an incident which occurred in December 2007, 19 months ago when X, the girl concerned, was aged 14.  In April 2008, 15 months ago, the magistrate delivered detailed and compelling reasons for his decision that the committal proceedings continue in the Juvenile Court.  In June 2008 the application for judicial review was initiated.  That application was heard by McMahon J on 30 June 2008 : he delivered his judgment, dismissing the application, on 18 July 2008.

46.  Then followed this appeal which was listed before us for hearing on 17 June 2009 : shortly prior to that hearing we were informed that it was the intention of the prosecution to offer no evidence on the basis that “... it has been decided that the prosecution is not in a position to prove beyond a reasonable doubt that the baby when delivered by X was born alive.”.  The prosecution, we were informed by counsel, made its decision on 11 June 2009 – this after seeking “clarification” from the pathologist who performed an autopsy on 12 December 2007 and despite having been in possession of a written report since then.  We were not told why that “clarification”, as fundamental as it must have been, had not been sought at any time in the intervening 19 months.  On 19 June 2009 no evidence was offered against X.

47.  The chronology suggests that there was little concern over or empathy with the girl.  It is basic good practice that cases involving children or young persons should be dealt with expeditiously so as to prevent unnecessary trauma arising from the proceedings themselves.  Every effort should be made by those having the conduct of such case, whether for the prosecution or the defence, to ensure that this principle is strictly applied.  The Department of Justice need have in place a protocol which identifies cases involving children and young persons, in the rare instances that such matters are not dealt with in the Juvenile Court, and puts them on a fast track to their conclusion, affording them priority over other cases.  If such a protocol does not exist, it should be established without delay.