ATTORNEY GENERAL v. TO FUK MING

IN THE COURT OF APPEAL

MAGISTRACY APPEAL NO. 1049 OF 1987

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J U D G M E N T

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Kempster, J. A. :

1. On 11th May 1987 To Fuk Ming came before Mrs Chui, a Principal and Permanent Magistrate, at San Po Kong Magistracy on charges of indecent assault. Since their commencement on 21st March the proceedings had already been adjourned five times. Upon the applies the of the Crown she granted a further adjournment but ordered the Crown to pay HK$1500 to To Fuk Ming in respect of the costs thereby occasioned. She confirmed her order on review.

2. On 25th July 1987 Chong Yuen Wah came before the same magistrate on charges of theft and unlawful pawning. Upon the application of the Crown she granted an adjournment but, albeit no adjournment had previously been sought, ordered the Crown to pay HK$200 to Chong Yuen Wah in respect of the costs thereby occasioned.

3. Being desirous of questioning, the two orders for costs by way of appeal on points of law and jurisdiction the Attorney General applied to the magistrate pursuant to section 105 of the Magistrates Ordinance (Cap 227) to state a case for the pinion of a judge in relation to each. On the footing that a common question of law was involved she did so in one document signed and dated 12th December 1987 stating, that question to he

"Whether I was right in making the order for costs against the Appellant".

4. The Appellant is the Attorney-General, who represents the Crown, and no point is or could gracefully be taken that the prosecutions in question were conducted by a police officer on such behalf. The cases were listed before de Basto J on 5th May 1988 but, on the invitation of counsel present and pursuant to section 118(1)(d) of the Ordinance, he directed that the appeals should be argued together before this court.

5. The issue before us is essentially one of jurisdiction. If the magistrate had power to make the orders impugned it would be difficult in the circumstances set out in the Case for the Crown to impeach the way she exercised her discretion. In the event the Crown does not seek to do so Accordingly we need not dwell on her reasons which have, no doubt, carefully been considered by those in the Legal Department responsible for prosecutions in the Magistrates Courts. We are constrained, however, to emphasise that in order to conform with accepted practice at least some attempt at a dispassionate approach should be made by magistrates and district judges asked or directed to state a Case and by those who submit drafts toassist them in so doing.

6. By section 122 of the Crimes Ordinance (Cap 200) "indecent assault" is triable on indictment but, by virtue of sections 92 and 94A of the Magistrates Ordinance and of section 89(5)(a) of the Interpretation and General Clauses Ordinance (Cap 1) such a charge maybe tried summarily with the consent of the prosecutor. It is thus an "indictable offence" within the meaning of section 2 of the Magistrates Ordinance. At the material time no consent had been given, the magistrate had not assumed power to deal with the offences summarily and no application had been made pursuant to section 88 for transfer, to the District Court. The fact that some intimation had been given that such a course would be adopted is neither here nor there. The provisions of section 93 were therefore applicable:

    "Where an indictable offence is triable summarily -

(a)     the procedure shall, until the magistrate assumes the power to deal with the offence summarily, be the same in all respect as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the magistrate assumes the power to deal with the offence summarily, the procedure shall be the same from and after that period as if the offence were an offence punishable on summary conviction and not on indictment, and the provisions in this Ordinance relating to offences punishable on summary conviction shall apply accordingly ...."

It does not have retrospective effect.

7. We understand section 93(a) to mean that the procedure for the time being to be adopted is that described in sections 79 and 80A.

8. Section 20 reads:

"(1)     Before or during the hearing of any complaint or information, a magistrate may adjourn the hearing to such time and place and on such conditions as he thinks fit .

(2)    ....

(b)     on the application of the complainant or informant, either personally or by counsel and the magistrate is satisfied that the application is occasioned by some default, neglect or omission on the part of  the complainant, informant or his counsel, as the case may be, he may order that the complainant or informant shall pay to the defendant such costs, not exceeding $5,000, as the magistrate may think fit".

That section appears in the part of the Ordinance following the cross-heading "Part II Procedure in respect of Summary Offences". A separate fasciculus of sections follows the cross-heading "Part III Indictable Offences none of which empowers the magistrate to award costs.

9. In the robust view of Lord Goddard CJ, a cross-heading cannot be used "to give a different effect to clear words in the section where there cannot be any doubt as to their ordinary meaning". R v Surrey (North Eastern Area) Assessment Committee⁽¹⁾ at pp 32, 33. In Director of Public Prosecutions v. Schildkamp⁽²⁾ the House of Lords' subsequently put the matter less forcibly.

10. To quote Lord Upjohn at p.28 :

" ...what role do cross-headings play in the onstruction of the statute?  In my opinion, it is wrong to confine their role to the resolution of ambiguities in the body of the statute.

When the court construing the statute is reading it through to understand it, it must read the cross-headings as well as the body of the statute and that will always be a useful pointer as to the intention of Parliament in enacting, the immediately following sections. Whether the cross-heading is no more than a pointer or label or is helpel in assisting, to construe or even in some cases to control, the meaning or ambit of those sections must necessarily depend on the circumstances of each case, and I do not think it is possible to lay down any rules".

11. Turning back to sections 20, 79 and 80A, whichever procedure be adopted the magistrate is faced with a complaint or information. Section 20 deals with powers to adjourn "Before or during the hearing of any complaint or information" while sections 79 and 80A in Part III, deal with remands in the course of committal proceedings. Having regard particularly to subsection (5) of section 20 which refers to a defendant "accused of an offence triable summarily" we do not find the section ambiguous but plainly applicable only to such offences. If we had thought it ambiguous we would have felt entitled to rely on the terms of the cross-headings to Parts & II and III to resolve the ambiguity. By reason, therefore, of the terms of section 93(a) any powers exercisable by the magistrate in relation to adjournment as far as To Fuk Ming was concerned would, in our view, have been conferred by the sections in Part III. Since it is trite law that the jurisdiction of magistrates is statutory, allowing of no inherent power to award costs, that seems to conclude the argument. The case of Attorney-General v Ho Yuen Kwong⁽³⁾ cited to us by Mr King on behalf of the respondents refers to section 69(1) of the Magistrates Ordinance as then worded and does not assist. The answer to the question of law posed in his Case Is "No". We quash the order for costs made in his favour accordingly.

12. Substituting a reference to section 9 of the Theft Ordinance (Cap 210) for that made above to section 122 of the Crimes Ordinance our conclusions in relation to To Puk Ming apply mutatis mutandis to Chong-Yuen Wah so far as the charge of stealing is concerned. But the charge of unlawful pawning contrary to section 19 of the Pawnbrokers Ordinance (Cap 166) is a summary offence which entitled the magistrate to exercise a discretion within the parameters of section 20. Her order for costs should specifically have been referable to that charge but in the absence of specific reference we so infer.

13. The answer to the question of law posed in relation to the Respondent Chong Yuen Wah is therefore: "Yes insofar as the order was referable to the summary charge". We do not consider that any consequential order is called for.

(1) [1948] 1KB 29

(2) [1971] AC 1

(3) [1971] HKLR 259