HKSAR v. CHOW KA HEY

HCMA642/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 642 OF 1999

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J U D G M E N T

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1. A complaint was laid against the Appellant before Mr Jenkins in the Magistrate's Court for her to be bound over. In the complaint, some facts were set out, apparently trying to justify the binding-over order.

2. When the Appellant appeared before the Magistrate, the Magistrate tried to put the facts in the complaint to her. From the record, it appeared that the Appellant did not agree to the facts put to her. When she was asked by the Court whether she agreed, she responded incoherently, and she also refused to be bound over although the Magistrate requested for her consent. She also, at one instance, said that she did not throw the fork at him (meaning the friend) who was, according to the facts in the complaint, her former boyfriend who refused to divorce his wife resulting in the relationship between him and the Appellant turning sour. That relationship was not put to her by the Magistrate and therefore she had no opportunity to respond. About one and half hours after her refusal to be bound over, she returned before the same Magistrate and then agreed to be bound over. In consequence, a binding-over order was made.

3. About 21 days later, she sought a review of the Magistrate's decision but the Magistrate refused her application. During the discourse between the Court and the Appellant upon that review, she was mentioning self-defence which did not specifically refer to any act of hers.

4. I was referred to R v South West London Magistrates' Court, ex.p. Brown & Others [1974] Crim.L.R. 313, for the point that : "... the material upon which the court could act did not have to be sworn evidence, but simply that it had to be such that when considered carefully and not capriciously, it justified the conclusion that there was a risk of a breach of the peace unless action was taken to prevent it."

5. In the case of R v Crown Court at Lincoln, ex.p. Jude [1997] 3 All ER 737, the criterion of the material required for a binding-over order to be made was :

"... there is evidence which reasonably makes the court fear that, without a recongisance, there might be a breach of the peace,..."

and

"... providing that the judge knows enough about the circumstances of the case to enable him to form a judgment as to the need for a binding-over order."

6. Ms Chan, for HKSAR, also referred me to R v. Mok Dip-yan, MA No.404 of 1988 (29 June 1988, unreported), where dealing with a prosecution witness being subjected to a binding-over order, Bewley J. said :

" I respectfully agree with his comment that 'A person ought not, especially in the context of Hong Kong, to come to court to give evidence on behalf of the Crown as a complainant or as a witness and to leave court subject to a legal sanction unless there are facts on the face of the record from which it can properly be inferred that there is a danger of such complainant or witness committing, in the future, a breach of the peace.' "

Despite these authorities, I must say I am still not absolutely clear as to what material, short of formal evidence, would be required to justify the making of a binding-over order. However, in the present circumstances, I do not need to decide the point except to say that the material before the Magistrate, without mentioning of the relationship between the Appellant and her former boyfriend for the Appellant to agree or disagree, and without any clear admission of an assault by her throwing a fork, would not justify the making of a binding-over order against her, because without these two elements, it would not justify a conclusion that there was a risk of a breach of the peace.

7. In the circumstances, I allow the appeal and set aside the binding-over order.