HKSAR v. LAU WAI WO

HCMA802/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 802 OF 2002

(On appeal from STCC 666 of 2002)

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J U D G M E N T

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1. The appellant was charged with common assault. He was tried by Ms Woo Huey Fang at Shatin Magistracy on 18 July 2002. At the end of the trial, the magistrate acquitted the appellant of the charge but she decided, having heard the evidence, that the appellant should be bound over in the sum of $1,000 to keep the peace for the period of one year. The appellant did not consent to the making of the binding-over order. In her Statement of Findings, the magistrate said that in view of the history behind the incident, she feared that sooner or later the appellant might cause some trouble which would have the effect of disturbing the peace. The appellant now appeals against that order.

2. The power of a judge or a magistrate to make an order binding over a defendant to keep the peace is derived from the Justices of the Peace Act 1361 and is now exercised in accordance with section 109I of the Criminal Procedure Ordinance, Cap.221, which is in very similar terms to the wording of section 1(7) of the UK Justices of the Peace Act 1968. Section 109I provides as follows :

" A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdiction, the power to bind over to keep the peace, and power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognizances or to find sureties or both, and committing him to prison if he does not comply."

3. In 1973, in the case of R. v. Woking Justices, Ex parte Gossage [1973] 1 QB 448, Lord Widgery CJ, sitting in the Divisional Court said, at page 450 :

" We need not go back over the old authorities to establish the fact that the justices' ancient power to bind over applies to all persons who are before the court, whether as parties or as witnesses, and that the fact that a defendant is acquitted of the charge against him is no bar to the justices binding him over to keep the peace. There are many instances, where, although the offence is not adequately proved, the conduct of the defendant has, in the opinion of the bench, justified that use of preventive justice."

Further, at page 451, Widgery CJ said :

" 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."

4. In 1981, in the case of Veater v. G. & Others [1981] 1 WLR 567, the Divisional Court dealt with an appeal by the prosecutor against a decision by justices not to bind over the defendants after they refused to consent to being bound. Lord Lane CJ dismissed the appeal and, at page 577, said :

"At first sight there is much to be said for the view that an order that a person be bound over to keep the peace or to be of good behaviour is like any other order imposed by a court. To suggest that such an order requires consent before it is effective is almost a contradiction in terms."

After referring to authorities, he continued :

".... we have been convinced first, that the essence of a binding over is that the person bound over acknowledges his indebtedness to the Queen, and thereby becomes bound in the sum fixed by the court, and secondly, the court cannot, as it were, force such an acknowledgement upon a person behind his back, or treat him as bound when he is not. The court's only remedy where a person refuses to acknowledge his indebtedness, and thereby becomes bound, is put him in prison until he does."

Then, further on, at page 578, Lane CJ said :

"There is nothing in any of the books to which we were referred which suggests that justices have any power to impose an obligation to be bound, except indirectly by threatening imprisonment. If they have such a power, then it seem strange that the much more drastic sanction of imprisonment should have become so firmly rooted in our law at such an early stage. The formal recognisance into which a person is required to enter has remained in substantially the same language for centuries. By that language the person acknowledges that he is indebted to the Queen in the sum fixed. In our judgment, it is far too late to argue that the acknowledgement can be treated as a mere formality, which can be dispensed with when occasion demands. Acknowledgment to the indebtedness is an essential ingredient in the binding over process."

The court then announced that they were rejecting the submission that the justices were entitled to impose a binding-over order unilaterally.

5. In 1988, in the case of R. v. South Molton Justices, Ex parte Ankerson and Others [1989] 1 WLR 40, the Divisional Court held that consent to a binding over had to be given personally by the one being bound over.

6. In 1992, in the case of R. v. Lam Yat Suen [1992] 1 HKCLR 175, Kempster JA, following the case of Veater (supra), allowed the appeal where the appellant, after having been acquitted by a magistrate was bound over and the order had been made without the appellant's consent.

7. In 1996, Stock J (as he then was), in the case of R. v. Chan Tak Shing [1996] HKLY 526, held that the magistrate had jurisdiction to make a bind-over order after trial but not without the appellant's consent. The binding-over order was then set aside.

8. In 1997, the Divisional Court in England, in the case of R. v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24, held that the power to bind over under section 1(7) of the Justices of the Peace Act 1968 did not depend on the consent or conviction of the person concerned. It also held that in the case of a convicted or acquitted defendant who had come to court prepared to meet the case against him, the court was under no duty to warn him and give him an opportunity to make representations before binding him over. Auld LJ, at page 26, said :

"It is to be noted that the provision [section 1(7) of the Justices of the Peace Act 1968] does not make the exercise of the power dependent on the consent of the person concerned. It is a power that the court may exercise by 'requiring' him to enter into the appropriate recognisance.

The exercise of such a power does not depend upon a conviction. In an appropriate case, where there is evidence which reasonably makes the court fear that, without a recognisance, there might be a breach of the peace, it may bind over a person whose case is before it even if he has been acquitted or if the prosecution have not proceeded with the matter: ...."

At page 27, Auld LJ continued :

".... A court considering binding over a complainant or a witness in proceedings before it must warn him and give him or his representative an opportunity to make representations about it: ..... The rule also applies where the court is considering binding over a defendant prior to its determination of the matter, say, during the period of an adjournment: ....

However, it does not apply to a convicted or acquitted defendant who has come to court knowing and having prepared to meet the nature of the case against him, though in the case of an acquitted defendant at least the better course is to give him or his representative, if he has one, an opportunity to address the court on the matter: ....

It follows that if the judge failed to warn the applicant of his intention to bind him over or to give him an opportunity to make representations about it, such failure would not necessarily invalidate the order. ....."

The court adopted what was said in the case of Gossage (supra) and disagreed with the judgment in Ankerson (supra).

9. Having considered all the authorities, I am satisfied that the law is as stated in the case of Jude. I respectfully disagree with the ratio adopted by Kempster JA and Stock J in the two cases quoted above. In my judgment, the learned magistrate was entitled to bind over the applicant in the absence of his consent.

10. The appeal against the order is therefore dismissed.

Remarks: