ATTORNEY GENERAL v. A PRINCIPAL AND PERMANENT MAGISTRATE

1992 M.P. No. 301

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application by the Crown for the Judicial Review of a decision made by a Principal Magistrate Mrs. Margorie Chui. The Crown is seeking an order of certiorari to quash an order she made in case 1977 of 91 in the Shatin Magistracy ordering the Crown to pay the Defendant $5,000 costs.

2. The Defendant was arrested on the 18th November 1991, pursuant to s.50 of the Police Force Ordinance, Cap. 232. The arrest was made as a consequence of a complaint made by a young girl that she had been raped by the Defendant. The Defendant was charged on the 19th November with this offence and brought before the learned magistrate on the 20th November.

3. No plea was taken on this appearance. The Defendant was remanded in custody until the 11th December so that further inquiries could be undertaken.

4. On the 11th December, the Defendant again appeared before the learned magistrate. On this occasion before any plea was taken the Crown applied to the learned magistrate for the withdrawal of the said charge on the basis of legal advice which had been received. The learned^-magistrate acceded to the application and then awarded costs of $5,000 to the Defendant.

5. It is against this order that the Crown seeks the relief I have referred to. Mr. Kwok who appeared before me submitted that the learned magistrate exceeded the powers reposed in her and that the order should be quashed.

6. Immediately prior to the hearing, I was presented with a document entitled "reasons for order for costs against the Crown" which appears to have been prepared by the learned magistrate. I made inquiries as to whether the learned magistrate or her legal representative would be appearing before me but was informed that this would not be the case.

7. In these circumstances, I do not think that it is right that I should consider the submissions made by the learned magistrate. She either decides to appear or declines to do so. I do not think that there can be any equivocation in the matter.

8. Mr. Kwok submitted that the jurisdiction of magistrates is statutory and accordingly it was incumbent upon a magistrate to demonstrate that they have power to make any particular order. The authority for this could be found on p.109 of the judgment of Kempster J.A. in Attorney General v. To Fuk Ming & another (1989) 1 HKLR 106. I accept that this is a correct statement of the law.

9. The next question which has to be considered is the extent of the jurisdiction of a magistrate to order that costs should be payable. There are a number of sections in the Magistrates Ordinance dealing with powers to order that costs should be payable.

10. It would appear that the section which the learned magistrate placed reliance upon was s.69(1).

"Power to award costs and recovery thereof by distress 69.(1) In every case of summary conviction or of an order made by a magistrate, except as provided in section 71, it shall be lawful for the magistrate making the same to award and order in and by the conviction or order that the defendant shall pay to the complainant or informant respectively such costs, not exceeding $5,000, as he may think fit; and where a magistrate dismisses the complaint or information he may, if he is satisfied that the proceedings ought not to have been instituted or pursued against the defendant, order that complainant or informant shall pay to the defendant such costs, not exceeding the $5,000, as he may think fit."

11. Mr. Kwok submitted that this section could not assist the learned magistrate as it could only be invoked where there had been a dismissal of the complaint.

12. This had clearly not occurred in the instant case. As can be gleaned from the short statement of the relevant facts that I have given at the beginning of this judgment no plea was ever taken. It is evident from the judgment of Kempster J. as he then was at p.365 of Attorney General v. Wong Kwai Lok (1984). HKLR 364 that the taking of a plea is the commencement of a trial. Clearly there is nothing on the facts which were before me to indicate that there had been a dismissal of the charge. In this connection it is also useful to consider s. 19 of the Ordinance which refers to the proceedings at a hearing:

"Proceedings at hearing

19. (1) Where the defendant is present at the hearing, the substance of the complaint or the whole of the information shall be read over to him, and explained if necessary, and he shall be asked whether he admits or denies the truth of the complaint or information. If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an order against him accordingly; but if he does not admit the truth of the complaint or information as aforesaid, then the magistrate shall proceed to hear upon oath the complainant or informant and such witnesses as may be produced in support of the complaint or information, and also to hear the defendant and such evidence as may be adduced in defence; and also to hear and examine such other witnesses as the complainant or informant may examine in rebuttal, if the defendant or his counsel has examined any witnesses or given any evidence other than as to the defendant's general character.

    (2) The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be.

    (3) If the magistrate convicts a defendant or makes an order against him, he shall thereupon make a minute or memorandum of such adjudication (for which no fee shall be paid), and he shall cause the same to be lodged with the magistrates' clerk, who shall register the same as hereinafter provided.

    (4) If the magistrate dismisses the complaint or information, it shall be lawful for him, if he thinks fit, on being required to do so, to make an order of dismissal of the complaint or information, and he shall give the defendant in that behalf a certificate thereof, which said certificate shall be a bar to any subsequent complaint or information for the same matters respectively against the same party."

With respect this section would appear to me to amply support the conclusion reached in Attorney General v. Wong Kwai Lok.

13. There is a further reason why I do not think that s.69(1) can provide the authority for the order made by the learned magistrate. It is clear to me from the overall context of the section that it only concerns cases of a summary nature and would not embrace a serious charge such as rape.

14. With the assistance of Mr. Kwok, I have also considered all of the other sections in the Magistrates ordinance where reference is made to costs. There is nothing in any of these sections which would lead me to conclude that the learned magistrate had the power to make the order she did.

15. I am satisfied that in making the order she did, the learned magistrate exceeded the powers reposed in her and I would grant the relief sought by the Crown that the order be quashed.