HKSAR v. YEUNG SIU KEUNG

[English Translation]
HCMA 51/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.51 OF 2005

(ON APPEAL FROM KCS 8898 OF 2004)

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Dates of Hearing: 15 March and 7 April 2005

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JUDGMENT

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1.  The appellant was charged with one count of using a motor vehicle without valid third party insurance, contrary to section 4(1) and (2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 of the Laws of Hong Kong.

2.  On 11 October 2004, he pleaded guilty to the charge and admitted the brief facts before Special Magistrate Leung Chee-hung and was convicted accordingly.  At that hearing, the appellant was not legally represented.  The Special Magistrate fined him $1,500.00 and ordered that he be disqualified from holding or obtaining a driving licence for 12 months (“disqualification order”).

3.  On 1 November 2004, the appellant, through his counsel Mr. Albert Poon, applied to Special Magistrate Leung for review of the disqualification order on the ground that there were “special reasons”.  Special Magistrate Leung allowed the application and set aside the sentence that he previously ordered, but considered it necessary to fix a date for hearing as to whether “special reasons” did exist.  The case was thereupon transferred to Magistrate Sham Siu-man for fixing a hearing date, and Magistrate Sham arranged for the case to be heard by him on 18 November in respect of the issue of “special reasons”.

4.  Magistrate Sham did not have time to deal with the case on 18 November.  He then adjourned the case to 7 December.  At the hearing on 7 December, Magistrate Sham came to the view that Mr. Poon confused “defence” with “special reasons” and he transferred the case to Magistrate Lin.  Magistrate Lin required the appellant to plead again to the charge and after hearing Mr. Poon’s submissions regarding “special reasons”, he likewise made a disqualification order for 12 months against the appellant.

5.  The appellant now appeals against the 12-month disqualification order. On 21 December 2004 Messrs. T. C. Foo & Co. lodged the appeal on behalf of the appellant.  The grounds of appeal as stated in the Notice of Appeal against Sentence are as follows:

And the general grounds of my appeal are that my sentence was too severe, and the Learned Magistrate had erred in imposing the disqualification order of 12 months and from 7^th, December, 2004.

6.  In accordance with section 113(sic)(b) of the Magistrates Ordinance, Cap. 227 of the Laws of Hong Kong, Magistrate Lin prepared his Reasons for Decision dated 11 January 2005.  The appellant’s solicitors instructed Mr. Poon and the “Perfected Grounds of Appeal and Submissions” was filed on 4 February 2005, in which the appellant submitted that the magistrate had failed to sufficiently consider whether there were “special reasons” for not making the disqualification order and that the appellate court should set aside the disqualification order.  Mr. Poon also pointed out that “If the appellate court does not set aside the disqualification order or shorten the disqualification period, the appellate court should order that the disqualification shall run from 11 October 2004 for 12 months, plus 19 days. That is to say, it shall expire on 29 October 2005.”

7.  In the respondent’s Supplementary Submissions filed by Mr. Sham, counsel for the respondent on 11 March 2005, Mr. Sham pointed out that “Under the review procedure set out in section 104(1) & (7) of the Magistrates Ordinance, other magistrates have no jurisdiction to re-hear and determine the case.”  Therefore, “the respondent considers that the proceedings before the Principal Magistrate on 7 December 2004 were a nullity in law.”

8.  The appeal of this case was heard before me on 15 March 2005.  The appellant was still represented by Mr. Poon.  Mr. Poon made it clear at the outset that he totally agreed with the respondent’s counsel on the jurisdiction issue raised by him and accepted that the proceedings before Magistrate Lin were a nullity.  Mr. Poon once applied to abandon the appeal but, in light of the principle that in legal proceedings no one shall be convicted twice for the same offence, I asked Mr. Poon repeatedly for details of the previous hearings of this case in the various courts in the magistracy.  My enquiries were, however, fruitless.  I therefore adjourned the appeal hearing and requested the magistracy to provide transcripts of the previous hearings of the case.  I also ordered the appellant’s counsel to file any additional grounds of appeal and submissions not less than 3 days before the date of the resumed hearing.

9.  The appellant subsequently instructed Ms. Jasmine Yu to appear at the resumed hearing on 7 April 2005.  Ms. Yu did not comply with my order that relevant documents should be filed at least 3 days before the hearing resumed.  Her “Amended Perfected Grounds of Appeal” and “Updated Skeleton Submissions” did not reach the court for filing purpose until the afternoon of 6 April.  In the “Amended Perfected Grounds of Appeal”, it was averred that Special Magistrate Leung erred in setting aside the disqualification order when he allowed the application for review, that Magistrate Sham erred in transferring the case to Magistrate Lin, and that Magistrate Lin acted in excess of his jurisdiction by re-taking the appellant’s plea to the charge and sentencing the appellant.

10.  At the resumed appeal hearing before me on 7 April 2005, counsel for the appellant and counsel for the respondent took the same stance that in this case Magistrate Sham had no jurisdiction to hear the review.  Both parties agreed that, starting from the moment on 18 November 2004 when Magistrate Sham fixed the case to be heard before him on 7 December for determining the “special reasons” issue, all proceedings were a nullity.  However, the parties were in disagreement as to whether an appeal was the appropriate remedy.  Counsel for the respondent pointed out that the appellant’s appeal was one against Magistrate Lin’s disqualification order, but since counsel for the appellant did not dispute that the proceedings before Magistrate Lin were a nullity, the appellant could not appeal against a sentence passed in proceedings which were null, void and non-existent.  Instead, the appellant should seek judicial review as a remedy for the jurisdictional problem.

11.  On the other hand, counsel for the appellant argued that so long as I did not hold that the proceedings were a nullity, the disqualification order was still effective and an appeal was the proper avenue to have the order set aside.  Further, counsel for the appellant invited me to “exercise any power which the magistrate might have exercised”, as laid down in section 119(1)(d) of the Magistrates Ordinance, to make decisions or orders.  Ms. Yu submitted that I was empowered to vary the disqualification order made by Magistrate Lin or shorten the period of disqualification.  Ms. Yu also submitted that, under section 104(9) of the Magistrates Ordinance, if an appeal was in progress, a magistrate had no power to commence a review.  Finally, Ms. Yu relied on Szeto Chi Wai v. The Queen [1964] HKLR 749 and pointed out that if, in this appeal, I held that the proceedings before Magistrate Lin were a nullity, I was entitled to quash the conviction and set aside the sentence.

12.  According to section 104(1) of the Magistrates Ordinance: 

Within 14 clear days after the determination in any manner by a magistrate of any matter which he has power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter.

Section 104(4A) provides that:

A magistrate shall not reject an application for a review without giving the applicant or his counsel an opportunity to make representations to him in open court.

Section 104(7) says :

If the magistrate upon the review decides that the case is one which should be re-opened and wholly re-heard and if he is of the opinion that in the interests of justice the case should be re-heard by another magistrate, it shall be lawful for some other magistrate to re-hear and determine the case accordingly.

13.  At the hearing of the application for review on 1 November 2004, Special Magistrate Leung rightly pointed out that an “application for a review” and a “review” were two distinct steps and levels (appeal bundle page 32 at L). He allowed the review application on that day but considered that a date should be fixed for the review, at which the court would hear the evidence.

14.  Although section 104(7) of the Magistrates Ordinance provides that for a case is to be re-heard by another magistrate if the trial magistrate, upon the review, is of the opinion that the case should be re-heard and that in the interests of justice the case should be dealt with by another magistrate, Huggins JA in R. v. Chiu Chun Chuen [1973-1976] HKC 456 held that:

One would have thought it would be more convenient that the nature of the review should be decided upon before the review begins and in my experience the matter has always been dealt with at the time of the application.  That has been the practice of the courts and it is analogous to the practice of the Court of Appeal (and of the Full Court before it) to treat the hearings of applications for leave to appeal as the hearings of the appeals in cases where the application is granted. (emphasis added)

15.  In that case, the magistrate allowed the application for review, quashed the conviction and immediately ordered a trial de novo before another magistrate.  This was confirmed by the Court of Appeal to be a correct approach.

16.  However, at the hearing where he allowed the application for review, Special Magistrate Leung neither quashed the conviction nor expressly said that in the interests of justice the case should be re-heard by another magistrate.  He merely set aside part of the sentence, i.e. the disqualification order, and the rest of the sentence, i.e. the fine, was left undisturbed.  He transferred the case to Magistrate Sham for the sole purpose of fixing the date.  It appears from the transcript that, at the outset of the hearing, Magistrate Sham also said that the review of sentence should be heard before Special Magistrate Leung (appeal bundle page 36 at G, I, U), but later on, for the reason that Special Magistrate Leung was about to retire, Magistrate Sham re-fixed the case to 18 November to be heard before him.  Section 104(7) of the Magistrates Ordinance provides that only the trial magistrate has power to order that the review be dealt with by another magistrate.  Magistrate Sham was not the trial magistrate and hence could not rely on this section to make the order in question.  In my judgment, therefore, all proceedings subsequent to this order, which was made contrary to the law, were invalid.

17.  Had Magistrate Sham been the trial magistrate, then at the hearing of the review when he doubted whether Mr. Poon confused “defence” with “special reasons” for mitigation purposes, there would not have been anything wrong for him to transfer the review to Magistrate Lin by exercising the power conferred on him by section 104(7).  However, in the circumstances of this case, as Magistrate Sham was not the trial magistrate, he was not entitled to exercise the power enjoyed by the trial magistrate at a review under section 104(7).

18.  Magistrate Lin subsequently took over this case.  In his Reasons for Decision he stated, “On 1 November 2004, the Defendant applied for a review. After a few adjournments, the case was eventually brought before Court 1 on 7 December .”  This statement is inconsistent with what actually happened.  The fact is that the application for review had already been allowed by Special Magistrate Leung, and the only outstanding matter to be dealt with was the review itself.  Magistrate Lin went on to state that “At that time, as the Special Magistrate in charge had already retired, he could not deal with the application.  Therefore, with the consent of both the prosecution and the defence, I ordered that plea be re-taken from the Defendant and thereafter I sentenced him again.”

19.  For a case in which the trial procedure has completed and sentence has been passed and which has reached the stage of review, another magistrate has no jurisdiction to re-hear the case, unless the trial magistrate, in the interests of justice, quashes the conviction and orders that the case be re-heard by another magistrate.  Counsel for both parties, for whatever reasons and even if they consent, cannot confer on a magistrate jurisdiction which he otherwise does not have.

20.  I understand that Magistrate Lin dealt with the case in the way he did because he took into account “various practical considerations, including the practical difficulties of arranging for the same Special Magistrate to deal with this case and the costs which the defence incurred as a result of repeated adjournments” (paragraph 2 of the Reasons for Decision).  Nevertheless, such considerations can never override jurisdiction.  Magistrate Lin also appreciated that this approach “was not entirely satisfactory”, but having weighed all factors, he had to “agree, with reluctance, to adopt this approach which is workable after all.”  However, this approach led to the irregular and confusing situation in which two sentences were passed by two different Magistrates, one after the other, in respect of the same offence; furthermore, a review which was still pending was thereby terminated without reason.

Is an appeal the appropriate means of correcting an error of jurisdiction?

21.  The appellant in the present case appeals against sentence under section 113(2) of the Magistrates Ordinance.  The section provides as follows:

Any person who after pleading guilty or admitting the truth of the information or complaint is convicted of any offence by a magistrate may appeal to a judge against his sentence …

22.  Counsel for the parties do not dispute that the legal proceedings before Magistrate Lin were a nullity.  The use of judicial review to rectify a mistake made by a magistrate regarding jurisdiction is provided for in legislation and supported by case law: Archbold Hong Kong 2005, paragraph 7-41.  In the case of In re Application by Leung Moon Lam, HCMP 3178/1984, the trial magistrate refused to hear an application for a review.  The applicant applied to the High Court for an order of mandamus pursuant to section 128 of the Magistrates Ordinance.  If, on the other hand, a sentence is unlawful or in excess of a magistrate’s jurisdiction, the person on whom the sentence is imposed can apply to the High Court for an order of certiorari according to section 25 of the High Court Ordinance.  Ms. Yu argued that, so long as this court does not hold that the proceedings before Magistrate Lin were a nullity, the disqualification order remains in existence, and therefore an appeal is the appropriate means of declaring the disqualification order null and void.  With respect, this argument is putting the cart before the horse.

23.  Ms. Yu also maintained that, as an appeal is underway, the review cannot continue.

24.  Section 104(9) reads:

No application for a review shall be granted and no exercise by a magistrate shall be made of the power conferred on him by subsection (5) subsequent to the commencement of proceedings by either party with a view to questioning the decision of the magistrate by way of appeal, mandamus or certiorari, unless such proceedings shall have been abandoned. (emphasis added)

25.  The particular circumstances of the present case do not fall within the ambit of that section.  In the present case, the application for a review had already been allowed but, for the aforesaid reasons, the subsequent proceedings were a nullity.  In other words, the subsequent proceedings can be regarded as non-existent, and the case remains at the stage where, the application for review having been allowed, the hearing of the review itself is pending.  Further, under section 104(10) of the Magistrates Ordinance, the period for lodging an appeal shall run from the date of the determination of a case by way of review or the refusal to grant a review.  In this case, as the subsequent proceedings were a nullity, the review is not yet concluded, and hence the appellant cannot invoke the appeal procedure unless he abandons the review.

26.  On the basis that Magistrate Lin had no jurisdiction to make a disqualification order against the appellant in respect of the same offence, Ms. Yu requested me to set aside Magistrate Lin’s decision and declare that the proceedings before him (in respect of both conviction and sentence) were a nullity.  I agree that even if an appellant merely appeals against sentence, the appellate court may, upon the principle of justice, overturn or quash the conviction.

27.  Relying on Szeto Chi Wai, Ms. Yu argued that even if the appellant lodges an appeal instead of a judicial review, the appellate court is still entitled to quash the conviction and set aside the sentence.

28.  The appellant in Szeto Chi Wai was convicted after trial.  The magistrate adjourned the case in order to obtain a probation report before passing sentence.  In the meantime, the magistrate retired.  A second magistrate heard the case again in respect of the same offence and convicted the appellant.  The appellant appealed against the conviction that followed the second hearing.  Rigby J held that :

What the learned magistrate was not entitled to do was to retry him upon a charge to which he had already pleaded not guilty and in respect of which he was already convicted.  Upon being called again to plead on the second occasion the appellant would clearly have been entitled to plead autrefois convict.

Rigby J said:

It might well have been argued in this case when the case came before the second magistrate that, the first magistrate having ceased to exercise jurisdiction, his successor was empowered to pass sentence. 

He made it clear that the second magistrate erred in taking plea on a charge in respect of which the appellant had already been convicted after trial and proceeding with the hearing of that charge.  Applying the common law principle of autrefois convict, the appellate court quashed the conviction.

29. However, the present case can be distinguished from the above case in that all proceedings were already concluded before Special Magistrate Leung.  But for the review, this case would have come to an end.  The factual matrices of these two cases are markedly different and leave no room for comparison.

The appropriate order

30.  Section 119 of the Magistrates Ordinance provides as follows:

     (1) In the case of any appeal to which section 105 or 113 applies —

(d) the judge may by his order confirm, reverse or vary the magistrate’s decision or may direct that the case shall be heard de novo by a magistrate or may remit the matter with his opinion thereon to a magistrate, or may make such other order in the matter as he thinks just, and by such order exercise any power which the magistrate might have exercised; and any decision or order made by the judge shall have the like effect and may be enforced in the like manner as if it had been made by the magistrate;

31.  The power under section 119(1)(d) only applies to the orders that the court can make when the court, after hearing an appeal to which section 105 or 113 applies, decides to dismiss it or allow it.  I have already held that the appeal procedure set out in section 113 is not applicable to the present case, and I have ordered that the appeal be dismissed because it is not the correct procedure in the present case.  For this reason, I cannot exercise the power which, by virtue of section 119(1)(d) of the Magistrates Ordinance, is exercisable by a judge in an appeal case.  Here I would like to mention in passing that, even if section 119(1)(d) were applicable, I would still not be able to hear the issue of “special reasons” and “exercise any power which the magistrate might have exercised” to make such order as I thought just, because, the proceedings before him being a nullity, Magistrate Lin did not have any “power” which he “might have exercised”, and hence this court, as an appellate court, could not possibly step into his shoes.  Furthermore, I cannot take the place of Special Magistrate Leung as the trial magistrate, otherwise I would be committing rather than rectifying a mistake and would be meddling with Special Magistrate Leung’s work and usurping his review jurisdiction, thereby repeating the errors made by Magistrate Sham and Magistrate Lin.

32.  Accordingly, in light of my ruling that the subsequent proceedings were a nullity, I have no jurisdiction to hear an appeal against proceedings which are a nullity, let alone make an order quashing the conviction.  The case now remains at the review stage.  In my view, the most straightforward solution is to order that the case be remitted back to Special Magistrate Leung to complete the review procedure.  As a matter of fact, this order simply serves to revive, or return to Special Magistrate Leung, the power to review which originally belonged to him but was terminated due to procedural irregularity.  This order does not confer on any magistrate a new jurisdiction which he does not otherwise have, nor does it amount to an order to re-try the case.  In fact, even if I do not make this order, to proceed with the case before Special Magistrate Leung will, logically and self-evidently, be the only way to dispose of the case.  Given the unusual background of this case, I consider it necessary to take the trouble to make this order so as to avoid confusion or misunderstanding.  I order that the subject matter of this case, namely the review of the disqualification order be remitted to Special Magistrate Leung.   

Epilogue

33.  It is the unshirkable duty of a magistrate to act within the jurisdiction conferred upon him by the Magistrates Ordinance.  In the present case, starting from the application for review, the appellant had all along been represented by Messrs. T. C. Foo & Co. and Mr. Albert Poon, but Mr. Poon had not reminded Magistrate Sham or Magistrate Lin of the jurisdiction conferred upon a magistrate by section 104(7) of the Magistrates Ordinance.  Instead, being totally unaware of the provisions of the Ordinance, Mr. Poon readily agreed to Magistrate Lin’s re-taking of the plea.  Mr. Poon had all along been dealing with this case and appeared in court himself, but when I asked him for details of the various hearings held in the magistrates’ courts, he hemmedand hawed and completely failed to provide useful information to assist this Court, and as a result I had to order the production of all the relevant transcripts.  Further, as Mr. Poon pointed out in the Perfected Grounds of Appeal and Submissions that there were problems in the calculation of the number of days of disqualification, he should not have ignored the fact that the appellant in this case had been convicted twice in respect of the same offence.  On the day when the appeal hearing resumed, Mr. Poon was unable to continue to represent the appellant because, according to Mr. Poon, his diary could not accommodate the hearing date.  The appellant, through the same firm of solicitors, instructed Ms. Jasmine Yu to appear before the Court.

34.  Regrettably, Ms. Yu did not have a firm grasp of the course of events during the hearings of this case, and the position she adopted was diametrically opposite to that of Mr. Poon.  She paid no heed to my direction that the amended grounds of appeal and submissions were to be filed 3 days before the hearing resumed.  Ms. Yu on the one hand submitted that the solicitors did not inform her immediately upon discovery of the omission; on the other hand she said that the solicitors made a mistake because they were swamped with work during those few days and she requested me to excuse them.  I do not wish to make unnecessary speculations as to which of these inconsistent explanations is true or false, or whether they represent an attempt to shrug off responsibility by playing down the seriousness of the matter.  But such conduct is undoubtedly a cause for concern.  Apart from failing to prepare adequately for the present case, Ms. Yu did not make an effort to understand the meaning of the contents of the transcripts and took things out of context.  I do not intend to delve into this aspect as the proceedings will be recorded in detail in transcripts, the contents of which should be self-explanatory.

35.  Generally speaking, as far as professional standard and quality, knowledge and application of the relevant laws, compliance with court procedures and court directions and protection of the appellant’s interests are concerned, the performances of the solicitors and both counsel have not been up to par and leave room for improvement. At the same time, at none of the hearings in the magistracy did the court prosecutors manage to spot and tackle the issue of jurisdiction. Such failure is hardly justifiable or excusable.

36.  Had the issue of jurisdiction been identified at an earlier stage, it could have been remedied and resolved satisfactorily at the magistracy and would not have developed into the unmanageable situation as it now is, and unnecessary litigation could then have been avoided.  For this reason, I decline to make any order as to costs.