HKSAR v. ZHANG BING XIAO YUAN, ROBIN

HCMA643/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 643 OF 2003

(ON APPEAL FROM ESCC 846 OF 2003)

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J U D G M E N T

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1. On 21 May 2003 the appellant was acquitted after trial in Eastern Magistracy of an offence of assault occasioning actually bodily harm. He was then ordered to be bound over in the sum of $1,000 "to keep the peace or to be of good behaviour for a period of 12 months". He appeals against that order and in his written ground of appeal he says this :

"All the evidence shows that I was assaulted and I sustained injury. The magistrate also said in his judgment that I should not approach [...] and scold him with foul language. But all these did not violate the law. Why sentence me to [be bound] over."

2. For present purposes the complete detail of the events which led to the appellant being prosecuted for assault are not perhaps important. Suffice it to say that the prosecution case was that on 26 September 2002 the appellant (a waiter) started an argument with his fellow employees in the restaurant where they worked. The chef intervened and received verbal abuse from the appellant for so doing. That led to a minor altercation between the chef and the appellant which was stopped by a passing police officer.

3. The following day the appellant (who was not then on duty) returned to the restaurant and tried to hit the chef but failed. This led to a struggle between the pair of them which struggle was stopped by other members of staff who called the police and the appellant was charged with the offence of assault.

4. Both the appellant and the chef received medical treatment for an assortment of minor injuries. The chef was granted seven days' sick leave; the appellant was discharged with medication.

5. What the magistrate has to say in his 'Reasons for imposing a binding over order' (inter alia) is this :

" In the result I acquitted the appellant. I was however in no doubt it was him who had used the foul language and been the aggressor on both occasions. It was plain to me he, still on the date of trial, harboured at least dissatisfaction, if not anger, towards PW1.

I was of the view there was a distinct likelihood the appellant would make some further approach to his former place of employment and/or to PW1 such as would lead to a breach of the peace.

I indicated to defence counsel I was considering making a binding over order. She responded she had no submissions to make on the appellant's behalf as to that.

...

Being satisfied the circumstances before me were such that a binding over order was appropriate I made such an order."

6. It is pertinent to note that the binding over order was made some eight months after the incident complained about and it was no doubt, for that reason that the magistrate said "... still on the date of trial ...".

7. This is not an appeal against conviction and nor is it an appeal against sentence because the appellant plainly was neither convicted nor sentenced. It is, as I have said, an appeal against the making of the 'binding over' order which is amenable to an appeal by virtue of section 113 of the Magistrates Ordinance.

8. I make that last point because the appellant plainly, and in my judgment perhaps for good reason, believes that he has been sentenced or punished for an offence of which he was acquitted and he is unable to see the justice or fairness in that. He holds that belief despite the fact that the magistrate specifically told him that he was not being sentenced or punished and his belief is in no way assuaged by the certificate (entitled 'Magistrates Ordinance, Cap.227 form 24 (s 28)') signed by the magistrate which is headed 'Punishment by Binding Over Order' [my emphasis].

9. Nor is the appellant's belief assuaged by the fact that when he lodged his appeal he was apparently given a form numbered 101 ('Notice of appeal to a judge against conviction') for his completion, and of course that form refers to both conviction and sentence.

10. There can be no question whatsoever about the magistrate's power to make the order that he did make and, in my judgment, given what he says in his reasons about his apprehension concerning the appellant's possible future behaviour towards the chef and (despite the lapse of time between the incident and the making of the order) the magistrate cannot be criticized for making it.

11. The questions that do arise however are these. Did the magistrate adopt the proper procedure in making his order? Was he obliged to obtain the appellant's consent before making it and/or to invite submissions from the appellant or his legal representative as to why such order should not be made?

12. The appellant tells me that, insofar as he can recall, at no time did the magistrate address him directly concerning the proposed binding over order prior to its imposition and that, if (as both the magistrate and the transcript confirm) the magistrate indicated his intentions to the appellant's lawyer, that intention was not immediately communicated to him by the lawyer and his instructions were not sought on the matter in the sense that he was not asked if he wished to show cause why he should not be bound over. The appellant tells me that if he had been he would have objected to what was being suggested or proposed.

13. When this appeal first came before me last week I called for a transcript of proceedings relating to the making of the order. I now have that transcript the relevant parts of which read as follows :

"COURT :	Now, ..., notwithstanding the defendant's acquittal, I am contemplating a bindover over. Is there anything you want to say as to that?
[COUNSEL] :	I have nothing to add, Sir.
COURT :	[Proceeds to tell the appellant directly why he is being bound over; the terms of the order and its effect]
	Now, the net result of today is that you have no conviction, there is no sentence, there is no penalty, but I have put in place this measure for the reason I explained to you.
	Do you understand the things I have said to you?
DEFENDANT:	I understand. I ...
COURT:	You talk to your lawyer. No, ..., go and see what he's got...
[COUNSEL] :	Yes, I'll explain to him again the meaning of 'bindover'.
COURT :	Well, find out if that's his only problem. I'm not here to have an exchange all afternoon but if he's got some matter that's worrying him...
[COUNSEL] :	Indeed.
COURT :	...and you can't resolve it, I'll do it now. But just have a quick check with him. See ...
[COUNSEL] :	Indeed.
COURT :	... what his problem is, will you?
(Counsel confers with defendant in body of court)
[COUNSEL] :	I explained to him something about the bail and the $1,000. No other matters.
COURT :	All right. I was going to go on to say that after you have signed the form downstairs, the matter will be all finished and you can then collect your bail money back. I understand now that has been of concern to you.
	So, to put it simply, you pay no money today. You just sign the form promising to pay if the matters I referred to should happen over the next 12 months.
	So do you now understand?
DEFENDANT:	I understand.
	.....
	Now, this is an order I make. It does not need your agreement. You are to go from here down to the public office and complete the forms they put in front of you. If you do not, you will go to gaol for six weeks instead.
	Understand?
DEFENDANT :	I understand."

14. In seeking to answer the questions which I have posed in paragraph 11 above (and I hasten to add that I ask them specifically in relation to a defendant who is acquitted and not in relation to a witness who is at risk of being 'bound over' or to anyone else) assistance can be attained from the following authorities :

(a) R. v. Woking Justices, Ex parte Gossage [1973] QB 448 in which Lord Widgery CJ said (at page 451) :

" It seems to me that a very clear distinction is drawn between, on the one part, persons who come before justices as witnesses and, on the other, persons who come before justices as defendants. Not only do the witnesses come with no expected prospect of being subjected to any kind of penalty, but also the witnesses as such, although they may speak in evidence, cannot represent themselves through counsel and cannot call evidence on their own behalf. By contrast, the defendant comes before the court knowing that allegations are to be made against him, knowing that he can be represented if appropriate, and knowing that he can call evidence if he wishes. It seems to me that a rule which requires a witness to be warned of the possibility of binding over should not necessarily apply to a defendant in that different position. ...

... it seems to me to be putting it far too high in the case of an acquitted defendant to say that it is a breach of the rules of natural justice not to give him an indication of the prospective binding over before the binding over is imposed. That is not to say that it would not be wise, and indeed courteous in those cases for justices to give such a warning. There certainly would be absolutely no harm in a case like the present if the justices, returning to court, had announced that they were going to acquit, but had immediately said, 'We are however contemplating a binding over; what have you got to say?' I think that it would be at least courteous and perhaps wise that that should be done, but I am unable to elevate the principle to the height at which it can be said that a failure to give such a warning is a breach of the rules of natural justice. ..."

(b) R. v. South Molton Justices, Ex parte Ankerson and others [1989] QB 40 in which Taylor LJ said (at page 44) :

"... When justices have it in mind to order a binding over, before they do so (1) there should be material before them justifying the conclusion that there is a risk of a breach of the peace unless action is taken to prevent it. (2) They must indicate to the defendant their intention to bind him over and the reasons for it so that he or his lawyer can make representations. (3) They must obtain consent to the bindover from the defendant himself. (4) Before fixing the amount of the recognizance they should inquire as to the defendant's means. (5) The binding over should be for a finite period."

(c) R. v. Lam Yat Suen [1992] 1 HKCLR 175 in which Kempster JA (sitting as an additional high court judge) adjudged that consent was a prerequisite to a binding over order

(d) as did Stock J (as he then was) in R. v. Chan Tak Shing [1996] HKLY 526

(e) R. v. Middlesex Crown Court, Ex parte Khan [1997] COD 186 in which it was decided that a defendant was required to give his consent prior to the making of a binding over order and if he replied in terms that he 'had no choice' in the matter that did not amount to consent.

(f) R. v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24. Auld LJ (at page 30) says this :

" ... it is difficult to identify any logical basis for effectively removing the courts' power ... to 'require' persons to keep the peace in an otherwise appropriate case by making its exercise conditional on the person concerned's consent. It is equally difficult to see any sensible basis for combining such a condition with the undoubted obligation in circumstances I have mentioned to provide him with an opportunity to make representations against an order. If his consent were required there would be no point in providing him with that opportunity.

It is not apparent from the report of ... Ankerson ... whether counsel for the justices argued that consent, if given, was not an additional requirement to that of giving the defendants an opportunity to be heard but an alternative to it. McCowan J.'s judgment, at p. 43A-D, ... suggests that the aspects of consent on which the parties focused were whether the consent indicated to the court was a true consent or given under duress and whether the defendants themselves should have been asked about it. Given the clear evidence before the Divisional Court and its finding that the consent was given under duress, it does not seem to me to have mattered that each of the defendants, if asked, would have said the same. However, the more important point is that the need for consent appears to have been assumed in the way the matter was presented to the court, the real issue being whether it was true consent. If the court in that case had been referred to ... Gossage ... and had had to consider the issue of consent in the sharper focus that it has in this case not as one of a number of well founded complaints any one of which was capable of invalidating the order I believe that Taylor L.J. and McCowan J. would not have expressed themselves in such general terms. First, they would have acknowledged that the case before them was an untypical bind over of defendants and that normally the law does not require defendants to give consent or to be warned; and, second, they would have spoken of consent and warning disjunctively rather than conjunctively as requirements for an order in such a case and generally for complainants and witnesses. At all events, for the reasons I have given, that is how I consider the law to be and respectfully disagree with the judgments in ... Ankerson ... to the extent that they suggest the contrary."

I might just add that in Jude's case before the Crown Court the judge had said to the defendant's counsel :

" I propose to bind him over. Have you any submission to make? Do you want to take instructions?"

The defendant's counsel (unlike counsel in the present case before the magistrate) apparently did immediately take instructions from the defendant and discussed the matter with him before telling the judge that she was not instructed to, and therefore did not wish to, make any submissions about it.

and

(g) HKSAR v. Lau Wai Wo (HCMA 802 of 2002) in which Nguyen J expressed agreement with the judgment in Jude's case as representing the law in Hong Kong.

15. I am told by Mr Wong (for the respondent) that the judgment in Lau Wai Wo's case is to go before the Court of Final Appeal in December of this year on a certified point of law expressed in terms of "whether a person before the court can be bound over without his consent". As I have said previously my concern relates specifically to an acquitted defendant and not generally to a person before the court.

16. I am persuaded that whilst there is an obligation (and I emphasise that word which goes beyond mere courtesy or wisdom) to give an opportunity to a defendant to make submissions as to why he should not be bound over (and to do so either directly or through his lawyer when he is represented), it is not necessary (or indeed desirable) to seek to obtain his consent to the making of such an order. It is not a matter for his consent and to suggest otherwise is "almost a contradiction in terms" [see Veater v. G [1981] 1 WLR 567 as applied in R. v. Lam Yat Suen (supra)]. The making of the order is a matter for the judgment of the magistrate in the circumstances of the case and, importantly, in the light of any submissions which the defendant may wish to make as to why the order should not be made. That is a very different matter from seeking his consent.

17. All of that said I remain concerned in this present case that the appellant was apparently not told by his counsel before the magistrate made up his mind to make the order what it was that the magistrate was intent upon doing and his instructions were not, there and then, sought as to why he (the appellant) should not be bound over. His instructions should have been sought and his counsel should not have taken it upon herself (if that is in truth what she did) in the absence of such instructions, to accept what she doubtless (and quite understandably) regarded as being the inevitable. Whilst the taking of such instructions and then addressing the magistrate upon them might well have been a futile exercise given the magistrate's view of the matter that is not the point.

18. Lest there be any doubt about it it seems to me plain from a reading of the transcript that, immediately the appellant realized that a binding over order was 'in the process of being made', he sought to object to the magistrate who quite understandably then (and I emphasise then) told counsel to take instructions. By then, however, the decision had been taken to make the order and it was, in reality, too late to make submissions.

19. It is in these particular circumstances that I have come to the view that this appeal should be allowed and that the binding over order should be set aside. It is accordingly set aside.