ATTORNEY GENERAL v. TSANG YEE SO

IN THE HIGH COURT
MAGISTRACY APPEAL

1987 No. 681
(Criminal)

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D E C I S I O N

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Roberts, C.J. -

1. This is a Case Stated by the Principal Magistrate at San Po Kong Magistracy under section 105 of the Magistrates Ordinance.

2. The respondent was charged on 6th May, 1987 with the offence of robbery, contrary to section 10(1) of the Theft Ordinance, on 4th May, 1987.

3. The respondent appeared before the Principal Magistrate at San Po Kong Magistracy on 6th May, 1987. The charge was read and explained to him and he pleaded not guilty. The Principal Magistrate fixed 0930 on 19th June, 1987 as the trial date and granted bail to the respondent.

4. On 19th June, the prosecutor and the respondent duly appeared before a trial magistrate at San Po Kong Magistracy, Mr. Stewart-Pearson.

5. The alleged victim of the robbery and another prosecution witness did not attend, although been served witness summonses to do so. The reasons for their absences were not known.

6. The prosecutor sought from Mr. Stewart-Pearson an adjournment, since the prosecution could not proceed without these witnesses.

7. Mr. Stewart-Pearson made an order in these terms -

“Adjournment granted. Court 1 for refixing. Bail extended. No further adjournment.”

8. The Case Stated is not clear as to the lapse of time between Mr. Stewart-Pearson's order and the appearance of the parties before the Principal Magistrate, nor is it clear as to whether there were one or two appearances before the Principal Magistrate.

9. It is possible that when the matter first came before the Principal Magistrate, she informed the parties that she would deal with the matter at once, or that she would deal with the matter later on the same day, perhaps in the afternoon.

10. The latter explanation seems to be more likely in view of the passage in the Case Stated in which the Principal Magistrate refers, after saying that she re-fixed the case for her court on the same day -

"When the prosecution cases were still not available later in the day, I refused to adjourn the trial further to another day. When the appellant failed to proceed with the case I struck it out for want of prosecution and discharged the respondent.

11. The Crown bases its submission that the matter should be returned to the Magistracy with an order for the fixing of a trial date on two main grounds - firstly, that the Principal Magistrate was wrong to have, in effect, overruled the order of a colleague with co-ordinate jurisdiction.

12. It is a common and useful practice in Magistracies in Hong Kong far a trial magistrate, who realizes that he is unable to deal with all his cases far the day, to return them to the Principal Magistrate in the hope that another magistrate can be found to deal with the matter. In these circumstances, trial on the same day before another magistrate is common.

13. This, however, was a different situation. It must have been clear to the Principal Magistrate that Mr. Stewart-Pearson had granted an adjournment to another date and that all the Principal Magistrate was being asked to do was to allocate a future date for the trial.

14. If there could have been any doubt as to the intention of Mr. Stewart-Pearson, this should have been put at rest by the phrase “No further adjournment”, which surely must have meant that, in his view, the case must proceed on a re-fixed date in the future.

15. It seems to me, therefore, that the Principal Magistrate was in error in effectively seeking to overrule the order of a colleague to the effect that the case was to be adjourned to another date. However, even if, the Crown argues, there had not been such an order by another magistrate, and the matter had came directly to the Principal Magistrate, she would have been wrong to exercise her discretion in the way which she did.

16. In the Case Stated, the Principal Magistrate sets out a number of reasons far refusing to grant an adjournment, among them the waste of time of the witnesses who had already been called and were available to give evidence. And also the stress which a further postponement of the trial would necessarily cause to the defendant. These are factors which it was entirely proper for her to take into account.

17. She also, properly in my view, gave some weight to the prejudice that might be caused to other defendants by the need to insert this case into the future diaries of the court.

18. Nevertheless, there are in certain passages of the Case Stated, arguments which I think are pushed beyond their reasonable limits. It was, after all, less than seven weeks since the alleged date of the offence, when she refused to grant a further adjournment. This is not an interval which could be said to amount to an unreasonable delay in dealing with the case. An interval of that nature in most jurisdictions would have been a matter for congratulation rather than criticism.

19. There is also a reference in paragraph 6 to “repeated court appearances” Which is hardly justified by the facts.

20. The Principal Magistrate comments -

"the court must have a right to require finality in proceedings …… adjournments are not to be granted as of right and other than for very cogent reasons."

21. There can be no question that as a statement of principle this is accurate enough. It is in the end for the courts to ensure that defendants are not unfairly treated by continual adjournments of the cases which are to be brought against them, but it could hardly be said that that was the situation with which the Principal Magistrate was here faced.

22. When the matter came before the Principal Magistrate, probably for the second time that day, no explanation appears to have been given to her as to why the prosecution witnesses were not available, although the Case Stated is not entirely clear as to this.

23. What the Crown argues is that in those circumstances there should have been an adjournment, at least to enable the prosecution to discover what had happened to the witnesses.

24. The Principal Magistrate comments, in paragraph 5 of the Case Stated, as follows -

“… people who have reported crimes to the police as a result of which a person has been charged and the machinery of justice has been set in motion cannot be allowed to act according to whim and irresponsible thereby holding up the trial.”

25. The Principal Magistrate had, at that stage, no evidence to justify such an assumption.

26. At a later stage, the two witnesses concerned were fined $300 for failing to show cause why they should not be punished for their disobedience to the summons, but there was no information available to the Principal Magistrate at the time when she dismissed the case, as to why they were absent.

27. I was referred to a recent decision of the Court of Appeal, Attorney General v. TUNG Ying-chuen[1], in which the circumstances were similar to this case. A defendant had appeared in a District Court on 22nd September, 1986, and pleaded not guilty. His trial was fixed for 27th October. On that date, however, the key witness, to whom a witness summons had not been issued, failed to attend, and the judge thereupon dismissed the charges. The Court of Appeal thus had to decide whether that was an appropriate exercise of the judge's discretion.

28. Mr. Justice Kempster, delivering the judgment of the court, commented as follows -

“One relevant factor must be the time during which an accused person has been kept in custody. Another must be the gravity of the charges. A third may be the behaviour of the prosecution. We incline to the view that not only must someone sitting in a judicial capacity give an opportunity for the explanation of failure by any party to have a case ready, whether in relation to documents, the availability of witnesses or otherwise but also, unless for example a party has shown a contemptuous disregard of his obligation to further the expeditious discharge of business, for that party to put his house in order within a reasonable time.

We think, even without recourse to authority, that here the judge failed to do justice to the Crown. After all the interests of the community have to be considered as well as those of the individual charged. Really there is only one way in which the judge's discretion could properly have been exercised and that was to grant a further short adjournment to allow for provision to be made for the material witness to be brought before the court or for some explanation to be given for her absence.”

29. I consider that the judge's comments are appropriate to this case, and that that is the way in which the Principal Magistrate should have dealt with the matter, even if, as I have said, she was not already faced with an order for an adjournment given by another magistrate in the same building.

30. I am in no doubt that, in accordance with the comments of Mr. Justice Kempster, there was only one way in which the Principal Magistrate's discretion could properly have been exercised, and that was to grant a further adjournment.

31. There are two questions posed by the Principal Magistrate -

(1) “Whether I erred in law in re-fixing the trial as I did to my court on the same day; and

(2) whether I erred in law in striking the case out for want of prosecution in the circumstances.”

32. The answer to both questions must be ‘Yes’.

33. I therefore order that the case be returned to the San Po Kong Magistracy for a date to be fixed for trial.