LAU WAI WO v. HKSAR

FACC No. 5 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 5 OF 2003 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 802 OF 2002)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. At the conclusion of the hearing we announced that, for reasons to be handed down in due course, we allowed the appeal so as to set aside the bind-over order and award the appellant his costs here (where he was in person but would have incurred some expense) and in the courts below (where he was legally represented). We now hand down our reasons, being those given by Lord Scott of Foscote NPJ.

Lord Scott of Foscote NPJ:

2. This appeal raises interesting and, we think, important questions about the power of a magistrate to bind-over a defendant who has been acquitted of the offences charged and about the procedures that should be followed by the magistrate before doing so. These questions require a context and it is convenient to start by describing what led to the bind-over imposed on the appellant, Mr Lau Wai Wo.

The facts

3. On 3 June 2002, the appellant was charged with common assault on his brother, Lau Hoi Kit. The Particulars of the offence were that -

"... on the 6th day of February, 2002 at outside ground floor, 66-67, Sun Tin Village, Shatin, in Hong Kong, [the appellant] assaulted Lau Hoi-kit."

4. The trial took place on 18 July 2002 before a magistrate, Ms Woo Huey Fang. The appellant was represented by a solicitor. Several witnesses gave evidence. They included the appellant and his allegedly assaulted brother. The magistrate gave a short judgment which was later, with a few amendments not material for present purposes, reduced to writing as a Statement of Determination. She said what she thought of the witnesses, their evidence, the appellant's behaviour and what she should do about it. The corrected transcript of her oral remarks (translated into English) reads as follows:

"COURT:	A short verdict. Defendant please stand up. I have heard the testimonies of the prosecution and the defence, the final submission of the defence, and have also observed the demeanour of the witnesses while they testified. The onus of proof lies on the prosecution and the standard of proof is one of beyond a reasonable doubt. The defendant is not required to prove himself innocent. I am aware that the defendant has a clear record and will give due consideration to it.
	In this case, none of the witnesses present at the scene, including the defendant, had told the whole truth, and the defendant was the one who had lied most. He refused to give direct answers to most questions. Besides giving irrelevant answers, (he) had also repeatedly evaded questions and refused to answer them. He tried to present himself as a gentle person but his attempt was unsuccessful. In fact it was a total failure. This court does not believe any evidence given by the defendant. His testimony was a pack of lies. It was neither true nor complete. It was even ridiculous and illogical.
	I believe on the day in question, there was an exchange of words between the two brothers and foul words were exchanged. I believe that when the defendant came out from the flat after he had gone inside, he was armed with a metal pipe for the purpose of using it against his own younger brother, PW1, but PW1 managed to leave the scene quickly. This court has reservation as to whether the defendant did in fact strike at PW1. Nevertheless, the defendant's behaviour on the material day was definitely improper.
	As the saying goes, "it takes more than one day for a river to freeze", however, the defendant, being the elder brother, should have ended the dispute there instead of going back home to fetch a water pipe with a view to using it against his own brother. It was indeed a misfortune to the family that brothers of the same blood should end up like this.
	During today's hearing, the defendant made up all sorts of stories to cover up his wrongdoings. He did not admit having done wrong, and had shown no remorse. What's more, that things happened in this way ... the defendant's behaviour in this case is such that this court is afraid that things will go wrong again some day. In view of this, this court will certainly give you, the defendant, the benefit of doubt. The defendant is found not guilty on this charge.
	Nonetheless, the court is of the view that it can exercise the right '(sic)' conferred on it by law. It would be appropriate to order that the defendant be bound over to be of good behaviour and to keep the peace. The defendant has to enter into his own recognizance in the sum of $1,000 and to be of good behaviour for one year."

5. By this judgment, therefore, the magistrate acquitted the appellant of the charge against him but, because of the nature and content of his own evidence, ordered him to be bound over. There had been no warning given to the appellant that this might happen and no inquiry as to his ability to find the sum of $1,000.

6. Having announced her decision to acquit the appellant but to bind him over, the magistrate set about the task of explaining to the appellant the effect of her decision. The appellant, naturally enough, was indignant and puzzled about the turn of events. The dialogue between the magistrate and him that followed her short judgment is (translated into English) set out below:

"	COURT:	(I'll) explain to you the meaning of binding over to keep the peace. It means making an undertaking to the court that in the year to come to be of good behaviour and to keep the peace. Otherwise, you'll be fined $1,000. Do you understand, sir?
	DEFENDANT:	Your Worship, I want to appeal.
	COURT:	Okay. First things first, do you understand?
	DEFENDANT:	I feel that your judgment is wrong.
	COURT:	I'm asking you this question again. Please tell me do you understand the meaning of binding over to keep the peace and the consequence of breaching it? Yes or no?
	DEFENDANT:	I'll ask my lawyer because I don't understand a thing from you people.
	COURT:	I'll explain again. In the coming 12 months, you must not commit any offence ...
	DEFENDANT:	I don't ...
	COURT:	... You must be of good behaviour. Please don't raise your hand again. Let me finish. In the coming 12 months, you must behave properly and must not break the law. Otherwise, you'll be fined $1,000. Do you understand? Just answer yes or no.
	DEFENDANT:	But I don't understand ... I mean I understand ...
	COURT:	(I'll) explain to you again.
	DEFENDANT:	... But you erred in ... many points in error.
	COURT:	First of all, do you understand the meaning of binding over to keep the peace and the consequence of breaching it?
	DEFENDANT:	Your Worship, actually I have not broken any law. It's unfair that you should have left behind this kind of trouble for me to follow-up.
	UNIDENTIFIED PERSON:	The question is: do you understand what the judge said? It's okay as long as you understand.
	DEFENDANT:	But you see, its no use understanding. I don't accept it because you ...
	COURT:	I don't need your acceptance. This is a court order, sir.
	DEFENDANT:	But you're being unfair, Your determination is unfair.
	COURT:	Did you hear that? Contempt of court. Let me ask you first, do you understand what I just told you about the meaning of binding over to keep the peace?
	DEFENDANT:	I heard that.
	COURT:	My question was not whether you heard it or not, but whether you understand it or not?
	DEFENDANT:	Can I not answer this question, Your Worship?
	COURT:	Of course you can't. I warn you, don't behave like this time and again. I may have to decide against you for contempt of court. Don't waste my time. First tell ... answer me, understand or not understand what is meant by binding over to keep the peace?
	DEFENDANT:	Understood.
	COURT:	Understood?
	DEFENDANT:	(No audible reply)"

7. Following this exchange with the magistrate, the appellant left the courtroom, went to the magistrate's clerk's office and there signed a recognizance under which he was expressed to

"... acknowledge [himself] to owe to the Government the sum of $1,000 to be levied on [his] goods, lands and tenements if [he should] fail in the condition [thereon] endorsed."

The endorsed condition was that:

"... if the within-bounden Lau Wai Wo keeps the peace or is of good behaviour for the term of 12 months now next ensuring (or abstains from doing the thing forbidden, or as the case may be), then the recognizance shall be void, but otherwise shall remain in full force."

The appeals

8. The appellant, as appears from the transcript of the post-judgment exchanges with the magistrate, had been constrained to sign the recognizance notwithstanding his protests about the unfairness of the magistrate's order that he be bound over. His sense of outrage did not abate and he appealed to the Court of First Instance against the order. The appeal was heard by Nguyen J on 24 January 2003. The appellant was represented by counsel.

9. The appellant's notice of appeal had raised two issues. The first was whether there had been a sufficient factual foundation to justify the magistrate in ordering the bind-over. After all, the appellant had been acquitted of the assault with which he had been charged. The second issue related to the consent of the appellant to be bound over. An individual could not, it was contended, be bound over without his consent and the appellant had not consented. During the hearing of the appeal a further ground was added, namely, that the magistrate ought to have inquired into the appellant's means before binding him over in the sum of $1,000.

10. As to the first issue, Nguyen J cited with approval a passage from the judgment of Lord Widgery CJ in R v. Woking Justices, Ex parte Gossage [1973] 1 QB 448 in which Lord Widgery CJ said -

"... 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."

11. As to the consent issue, the judge referred to the apparent dispute between Lord Lane CJ in Veater v. G and Others [1981] 1 WLR 567 and Auld LJ in R v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24. In Veater Lord Lane had said that if an individual was to be bound over, his consent to the binding over was essential. He said -

"... 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, ... the court cannot, as it were, force such an acknowledgment upon a person behind his back, or treat him as being 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." (see p.577)

But in Jude Auld LJ, to whom Veater had not been cited, referred to s.1(7) of the Justices of the Peace Act 1968, and continued -

"It is to be noted that [s.1(7)] 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 recognizance."

Nguyen J, having expressed his preference for the view expressed by Auld LJ, held that the magistrate had been entitled to order that the appellant be bound over notwithstanding the absence of his consent. The added issue, as to the absence of any inquiry into the appellant's means, was not mentioned by the judge in his judgment.

12. So Nguyen J, in his judgment given on 17 March 2003, dismissed the appeal. The appellant applied for a certificate that a point of law of great and general importance was involved in the judge's decision but that application was dismissed on 31 March 2003.

13. The appellant then applied direct to the Appeal Committee of this Court for a certificate and for leave to appeal. The application was heard on 21 May 2003 with the appellant appearing in person - he had, we have been told, already spent some $74,000 on legal costs incurred in connection with the trial and the appeal to the Court of First Instance. The Appeal Committee granted leave to appeal and certified the following point of law:

"Whether a person before the court can be bound over without his consent."

14. The appellant indicated to the Appeal Committee that he proposed to appear in person on the hearing of the appeal. Accordingly the Appeal Committee directed the appointment of an amicus curiae. Mr Gerard McCoy SC, with Ms Winnie Lau, has appeared as amicus and we would wish to record our gratitude for the valuable assistance they have given us both in their written case and in oral submissions. We record also our gratitude to Mr Cheung Wai Sun and Ms Sally Yam, who have appeared for the respondent. The appellant, as litigant in person, very sensibly agreed to allow Mr McCoy to open the appeal, reserving to himself the right to the last word after Mr Cheung had made his submissions in reply. In the event, it did not become necessary for the appellant to address us at all. Having heard Mr McCoy and Mr Cheung we concluded that the appeal had to be allowed and the bind-over order quashed. The appellant was so informed and that our reasons would be handed down later. These are the reasons.

The problem about bind-overs

15. Bind-over orders may be made in at least four different types of situation. The present case involves the bind-over of a defendant after his acquittal. But a bind-over order may be made against a defendant after he has been convicted and as part of the means chosen by the judge for dealing with him. He may, for example, be bound over to come up for sentence. Or a bind-over order may be made against a witness who has given evidence, whether in a civil or in a criminal case, and who is, therefore, before the court. Or a bind-over may be made against a party to civil litigation who is before the court. It sometimes happens also that discussions between the prosecution and the defence before the actual trial has commenced lead to the prosecution agreeing to withdraw the charges if the defendant will agree to being bound over. These cases could, perhaps should, be viewed as falling within the bind-over after acquittal category.

16. In respect of every challenge to a bind-over, no matter into which category the bind-over falls, there will always be two broad questions; first, did the court have power in the particular circumstances of the case to order the bind-over, and, secondly, was the procedure adopted by the court fair to the individual who was bound over? Both these questions must be answered in the affirmative if the bind-over is to stand.

17. The certified question, as to the necessity for consent to the bind-over, falls naturally within the question as to the court's power to make the bind-over order. And, also, the question as to whether a bind-over order made by the court in the general terms that have become traditional, i.e. a bind-over "to keep the peace" or "to be of good behaviour", or a combination of both, meets the yardstick of legal certainty necessary to make the order compliant with the relevant Articles of the International Covenant on Civil and Political Rights incorporated into the law of Hong Kong by the Hong Kong Bill of Rights Ordinance, Cap. 383, can conveniently be regarded as falling within the broad vires question.

18. The fair procedure question can conveniently be considered by reference to a number of specific issues. Thus

(1)	What, if any, prior notice of the bind-over proposal must the proposed object of the bind-over ('the defendant') be given?
(2)	What, if any, opportunity to give evidence relating to the proposed bind-over or to call other witnesses or to make representations about the proposal should the defendant be given?
(3)	What, if any, opportunity to take legal advice or obtain legal representation should the defendant be given?
(4)	What, if any, inquiry into the defendant's means should the court take before specifying the sum in which the defendant will be required to enter into recognizances?

There may be other fair procedure issues that a particular case may throw up, but those mentioned above are likely to be the main ones - and are the ones that require to be considered in the present case.

The power to make bind-over orders

19. Section 109I of the Criminal Procedure Ordinance, Cap. 221, says that -

"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."

It is common ground before us, and we agree, that the magistrate's bind-over order against the appellant must be regarded as an exercise, or a purported exercise, of the power conferred by this section. The language of the section is similar to that of s.1(7) of the Justices of the Peace Act 1968 under which the bind-over order in Ex parte Jude was made. There are, however, other statutory provisions relating to bind-over orders in Hong Kong which need to be noticed.

20. Section 61 of the Magistrates Ordinance, Cap. 227, provides that:

"(1) The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance and find sureties to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called and examined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint.

(2) The magistrate may order the defendant, in default of compliance with such last-mentioned order, to be imprisoned for 6 months."

21. Section 61 is not a power conferring provision. It regulates the exercise by magistrates of a power they already have. The power conferring provision is s.109I of the Criminal Procedure Ordinance. Section 61 is expressed to be applicable to the magistrate's power "on complaint of any person" to make a bind-over order. But what about cases where the magistrate proposes of his own motion to make a bind-over order? It seems to us that the provisions of s.61, in so far as they are relevant to a case where the magistrate is acting on his own motion, should be regarded as constituting statutory guidance to the magistrate as to the manner in which he should exercise his power.

22. The same applies to sections 62 and 63 of the Magistrates Ordinance. Indeed, the procedure adopted for the signing by the appellant of the recognizance in the magistrate's clerk's office, instead of before the magistrate herself, seems to have been based on the procedure authorized by s.63.

23. The other statutory provisions regarding bind-overs to which reference should be made are s.36 of the Magistrates Ordinance and s.107 of the Criminal Procedure Ordinance. These sections apply where a defendant has been convicted. They allow the court to deal with the case by

"... discharging the offender conditionally on his entering into a recognizance, with or without sureties, to be of good behaviour and to appear for sentence when called on at any time during such period, not exceeding 3 years, as may be specified in the order." (s.107(1) of the Criminal Procedure Ordinance).

Section 36(1)(b) of the Magistrates Ordinance is in identical terms save that the sum specified in the recognizance must not exceed $2,000.

24. These statutory provisions should, in our opinion, be regarded as providing analogous statutory guidance as to the exercise of the bind-over power in cases where there has not been a conviction of the person bound over. If in these cases a magistrate is exercising the power the $2,000 limit should be regarded as applicable. In none of these cases should the 3-year bind-over period be exceeded.

The consent issue

25. In our opinion this issue becomes on examination a non-issue, a chimera. Veater v. G was a case in which six youths were facing charges of behaving in a manner likely to cause a breach of the peace. They admitted the allegation. The justices decided to bind each of them over in his own recognizance of ￡100 to keep the peace for one year. Each of them was asked to enter into the recognizance. Each of them refused to do so. It was contended for the prosecution that they did not need to sign the recognizance in order for the terms of the recognizance, as ordered, to be binding on them. This was the contention that the Divisional Court rejected. Lord Lane CJ, giving the judgment of the court, gave the reason in the passage already cited (para. 14 above). Lord Lane was not saying that a defendant's consent was necessary before the binding-over order could be made. What he was saying was that a binding over order was no more than it purported to be, namely, an order "requiring" the defendant to enter into the recognizance.

26. In the case of any and every court order requiring an individual to do something or other, the court has in general no means of directly forcing the individual to obey. There are indirect sanctions, such as imprisonment or a fine for contempt of court, or the striking out of a pleading in a civil case, that may be imposed in order to induce obedience. The problem in Veater was that the imprisonment sanction was not available on account of the youth of the defendants. But it is the individual who, in the end, must decide to obey if the court order is to be effective. Lord Lane was saying no more and no less than that.

27. The issue of consent was raised again in R v. South Molton Justices, Ex parte Ankerson [1989] 1 WLR 40. This was a case where it was plain that the bind-over order ought not to have been made. Three defendants facing charges of assault occasioning actual bodily harm were before the magistrates. It became necessary to adjourn the committal proceedings to a later date. The defendants were bound over to be of good behaviour during the period of the adjournment. It appeared, when the defendants' appeal came before the Divisional Court, that the reason for the bind-over was the defendants' "dumb insolence in the face of the court" (p.42C). The defendants' solicitor consented on their behalf to the bind-over. He said that they "... did not want to consent but reluctantly did so". They were never directly asked by the court whether they agreed to be bound over. As to the consent issue, McCowan J, with whose judgment Taylor LJ (as he then was) agreed, said:

"Plainly this was a consent, in so far as it was a consent, which was given under protest, one might almost say under threat, that in the absence of consent they would be committed to prison. It was not a consent in any event given by the defendants themselves, and in my judgment the defendants themselves should be asked for their consent." (p.43D)

28. A point that needs to be noticed about Ex parte Ankerson is that there was no suggestion in the recital of the facts of the case that any of the defendants had actually signed a recognizance. Nor had the solicitor on their behalf done so. The last sentence of the passage cited from McCowan J's judgment shows that if the defendants had been asked for their consent and had given it, that would have sufficed to make the bind-over order effective - so far, at least, as the consent issue was concerned.

29. A point that emerges from both Veater and Ankerson is that there appears to be a degree of confusion between the bind-over order itself and the entry of the defendants into recognizances in obedience to the bind-over order thereby making the order effective. In Veater Lord Lane CJ said that it was the essence of a bind-over order that the individual to be bound over acknowledged his indebtedness to the Queen and thereby acknowledged that he became bound to pay the specified sum if he broke the condition of the bind-over. The bind-over order itself could never constitute such an acknowledgement. It would be the entry of the individual into the recognizance, or his agreement to do so, that would constitute the acknowledgement. At p.577 of the report Lord Lane CJ 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. Moreover, a consent which can be compelled, ... by the threat of imprisonment, is hardly the sort of consent which, in other circumstances, the court looks on with favour."

We would respectfully suggest that the "consent" that is necessary is consent to enter into the recognizance, to be bound over, and that the consent is not needed in order to enable the court to make the bind-over order itself.

30. In Ankerson there was an issue as to whether there had been a valid consent by the defendants to be bound over. If there had been, the bind-over order would have become effective. The defendants' consent would have constituted the "acknowledgement" to which Lord Lane had referred in Veater. Nothing more would have been needed. But since there had been no valid consent, the bind-over had never come into effect. The order had done no more, at best, than impose on the defendants an obligation to enter into the requisite recognizances.

31. In Ex parte Jude the defendant had pleaded not guilty to a charge of affray. The trial could not proceed because certain witnesses were not available. The judge had read the papers and formed the view that there was material on which he could make a bind-over order against the defendant. He informed the defendant's counsel that that was what he intended to do and gave her an opportunity to take instructions from the defendant. Having done so, counsel neither expressed the defendant's consent to being bound over nor made any submissions about the proposal. The judge then proceeded to make an order binding the defendant over in the sum of ￡500 to keep the peace for 18 months. He (the judge) said later that he thought the defendant had agreed to be bound over. The defendant applied for judicial review of the judge's order. Auld LJ, with whose judgment Smedley J agreed, identified s.1(7) of the Justices of the Peace Act 1968 as the statutory authority governing the exercise by the judge of his bind-over power. Section 1(7), like s.109I of Hong Kong's Criminal Procedure Ordinance, says that the bind-over power may be exercised "... by requiring [the person to be bound over] to enter into his own recognizances ... and committing him to prison if he does not comply". Auld LJ commented that

"... the provision 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 recognizance."

We would respectfully agree. This passage draws, we think, the correct distinction between the order itself, which does not require consent, and the entry into the appropriate recognizance, which surely contemplates, and requires, some volition on the part of the person concerned.

32. Unfortunately, Auld LJ later in his judgment muddied the waters. He referred to Ankerson which he thought had held that consent was a prerequisite of a bind-over order (p.28H) and, at p.30, said 'this' -

"... neither the Justices of the Peace Act 1361 nor the Justices of the Peace Act 1968 says anything about consent. Equally, however, they contain no provision for compulsion in the event of refusal to enter into a recognizance such as that in the quite separate power provided to magistrates in section115 of the Magistrates' Courts Act 1980 to bind over on proof of a complaint. Section 115(3) empowers them to commit to prison a person whom it orders to enter a recognizance to keep the peace and who refuses to do so. However, although the two procedures are quite distinct ... it is difficult to identify any logical basis for effectively removing the courts' power under the Act of 1361 to 'require' persons to keep the peace in an otherwise appropriate case by making its exercise conditional on the person concerned's consent."

We are afraid that in the above-cited passage Homer has nodded. Section 1(7), like the Hong Kong s.109I, does contain provision for compulsion in the event of refusal to enter into a recognizance. Auld LJ had in fact cited the provision for compulsion at p.26H: "... and committing him to prison if he does not comply".

33. In our opinion, the position in Hong Kong under s.109I, the same as in England under s.1(7) of the 1968 Act, is that

(1)	no consent is needed to the making of the bind-over order itself;
(2)	the order will require the person against whom it is made to enter into his own recognizances, or to find sureties, or both, with the sanction of committal to prison if he does not comply;
(3)	if the person concerned expresses his consent to being bound over in the terms contained in the order, that consent may be taken to constitute his entry into his own recognizances and the bind-over will be effective with nothing more needing to be done;
(4)	if the person concerned does not express his consent to the bind-over, and refuses or fails to enter into the recognizance that the order has required him to enter into, he will be in contempt and be liable to be proceeded against accordingly.

34. It is, therefore, true to say that the bind-over cannot become effective without the consent of the person concerned. But it is not true to say that the s.109I bind-over order cannot be made without the consent of the person concerned. We would answer the certified question accordingly.

35. Where does that leave the appellant in the present case? There is no indication in the transcript of the exchange between the magistrate and the appellant that he was consenting to being bound over. At most it can be said that he expressed his understanding of the bind-over order she had made. But, later, in the magistrate's clerk's office, he signed a written recognizance. He thereby complied with the magistrate's order and the bind-over, on the terms specified in the written recognizance became effective. Lack of consent is not, on the facts of this case, ground for setting aside the bind-over.

Legal Certainty

36. The principle of legal certainty requires that a law must be sufficiently precise to enable a citizen to foresee, to a degree that is reasonable in the circumstances, the consequences that a given action may entail (see Human Rights Practice Encyclopedia, para. 1.061). A court order, breach of which may lead to either pecuniary or loss of liberty consequences or to both, must, for the same reasons, have the same quality of precision. A bind-over order requiring the object of the order to "keep the peace" or to "be of good behaviour", without any additional description of what it is that the individual must refrain from doing in order to avoid being in breach raises obvious questions about legal certainty. What sort of conduct would be taken to be a breach of an undertaking expressed in these general terms? Mr Cheung Wai Sun, counsel for the respondent, submitted that any action or activity in breach of the law, whether civil or criminal, would suffice. He went so far as to say that a breach of contract or a road traffic infringement would suffice. In including breach of contract Mr Cheung must, we think, have been tempted into indiscretion but, with or without breach of contract, the catholicity of his submission underlines the need for a sharp focus on the compatibility of bind-over orders with the principle of legal certainty. A brief historical survey is a convenient start.

37. Bind-over orders derive from a time, the 14th Century in England, when there was virtually no police authority and when the justices of the peace and King's Bench judges constituted an essential arm of the Crown in the keeping of the peace within the realm. By modern standards their role in making bind-over orders probably had more in common with an executive function than a judicial one. But, happily, times have changed. Judges take a judicial oath. They do not serve the executive. The maintenance of public order and the prevention of breaches of the peace is the responsibility of the executive and the police. The role of the judiciary in that regard is mainly in deciding how to deal with persons convicted of offences against public order or breaches of the peace.

38. Save where a person has been convicted and the judge or magistrate is deciding what to do about him, the making of a bind-over order is not a normal exercise of judicial power. In a civil case the function of the judge is to rule on the rights of the litigants. The making of bind-over orders against the litigants or their witnesses is not part of that function. In a criminal case the function of the judge is either to decide on the guilt or innocence of the accused or to preside over the trial by a jury of that issue. It is not part of that function to make bind-over orders against an accused who has been acquitted or against witnesses who have given evidence. In short, the power of a court to make bind-over orders against persons who have been acquitted or against witnesses or against litigants is anomalous. The exercise by a judge or a magistrate of that power falls outside his normal judicial function.

39. The making of bind-over orders is sometimes explained as constituting "preventive" justice. The grant of injunctions, too, whether at the suit of an individual in order to protect his private rights or at the suit of the Attorney-General (or other suitably authorized public authority) in order to enforce the public law, can be described as "preventive" justice. But, unlike bind-over orders, these injunctions are never made by the court on its own initiative. And they are, or should be, always couched in precise terms, so that the enjoined person can be in no doubt about what he or she is prohibited from doing.

40. The purpose of these remarks is not to cast doubt on the continued value of the bind-over power, now in Hong Kong conferred by s.109I, but to emphasise the importance that exercises of that power should comply with current standards of legal certainty and natural justice and that tradition, no matter how longstanding, and convenience cannot justify practices that fall short of those standards.

41. In two fairly recent cases the requirements of legal certainty in connection with bind-over orders have been considered by the European Court of Human Rights in Strasbourg. Both cases involved bind-over orders made against persons who had engaged in activities designed to interfere with the conduct of blood sports. In Steel v. United Kingdom (1998) 5 BHRC 339 protestors had been arrested, detained and charged with breaches of the peace. They had been convicted at trial and orders had been made binding them over to keep the peace and be of good behaviour. The Strasbourg court, after a useful survey of English authorities, expressed the conclusion that the concept of "breach of the peace" accorded with the degree of precision required by the Convention for the Protection of Human Rights (see p.352). The court then turned its attention to the bind-over orders and said this:

"... the orders were expressed in rather vague and general terms; the expression 'to be of good behaviour' was particularly imprecise and offered little guidance to the person bound over as to the type of conduct which would amount to a breach of the order. However, in each applicant's case the binding over order was imposed after a finding that she had committed a breach of the peace. Having considered all the circumstances, the court is satisfied that, given the context, it was sufficiently clear that the applicants were being requested to agree to refrain from causing further, similar, breaches of the peace during the ensuing 12 months." (p.355)

42. We have two comments to make about this decision. First, the bind-over orders had been made after a "finding" that the individuals had committed breaches of the peace. So the scope of the respective orders should, in the Strasbourg court's view, be taken to correspond to the nature of the breaches of the peace of which the individuals had been convicted. This implied limitation on the scope of bind-over orders to keep the peace and be of good behaviour seems to us, if we may respectfully say so, somewhat creative but, in any event, is wholly inconsistent with Mr Cheung's submission as to the scope of a bind-over order in similar terms. Second, it seems clear that if the same bind-over orders had been made after the acquittal of the individuals in question, the court would have held them to be inconsistent with Convention rights. The vital limiting context provided by the "finding" would have been absent.

43. The other case is Hashman and Harrup v. United Kingdom (1999) 8 BHRC 104. The applicants to the Strasbourg court were hunt saboteurs who had attempted to disrupt a fox hunt but, apparently, without violence or threat of violence. On a complaint being made to the magistrates, they were bound over not to breach the peace and to be of good behaviour. But, as they had not used or threatened violence, it was held, on appeal, that they had not committed a breach of the peace. Nonetheless the bind-over was upheld in the domestic courts on the ground that, in effect, their behaviour had been objectionable and was likely to be repeated. The Strasbourg court regarded the saboteurs' activities as a form of expression of opinion protected by art. 10 of the European Convention on Human Rights and posed the question whether the restriction on those activities that the bind-over order constituted was "prescribed by law". To be "prescribed by law" the restriction had to be formulated with sufficient precision to allow the saboteurs to know what they were prohibited from doing. The bind-over order, it was held by a majority, did not do so. The court did not adopt the device used in Steel whereby the scope of the order was treated as impliedly limited to activities similar to those which had led to the imposition of the order. The judgment of the majority said this:

"With specific reference to the facts of the present case, the court does not accept that it must have been evident to the applicants what they were being ordered not to do for the period of their binding over. Whilst in Steel v. UK, the applicants had been found to have breached the peace, and the court found that it was apparent that the bind over related to similar behaviour, the present applicants did not breach the peace, and given the lack of precision referred to above, it cannot be said that what they were being bound over not to do must have been apparent to them."

44. We must say that we find this distinguishing of Steel v. UK a little difficult to follow. If it is legitimate to limit the language of a bind-over order by reference to the type of conduct that has led to the imposition of the order, that limit could have cured the imprecision of the Hashman and Harrup bind-over order just as it cured the imprecision of the Steel bind-over order. But we do not regard this implied limitation as constituting a satisfactory answer to the inherent imprecision in bind-over orders conditioned on the individual "keeping the peace" or "being of good behaviour".

45. In Dalton's Country Justice (1762), examples are given of what would constitute not keeping the peace or not being of good behaviour. The examples given of not keeping the peace include the following:

"So of such as in his Presence shall contend only in hot Words ...;"

"So of such as in his Presence shall go or ride armed offensively, or with an unusual Number of Servants or Attendants: ..." (see p.267)

The breadth of these examples of failure to keep the peace is, however, reduced by the modern authorities referred to in Steel v. UK which seem to establish that violence, the threat of violence, or the causing of a reasonable apprehension of violence is an essential ingredient in conduct that constitutes a breach of the peace.

At p.287 Dalton says that an obligation to be of good behaviour may be broken:

"By the extraordinary Number of People attending upon the Party bound ..."

Dalton also gives examples of conduct that may justify a bind-over to be of good behaviour. The examples include:

"... such as be of evil Name and Fame, generally ..."

"... those ... resorting to Houses suspected to maintain Adultery, or Incontinency"

"such as by Night shall eavesdrop Mens Houses"

"suspected Persons who live idly, and yet fare well, or are well apparelled, having nothing whereon to live ..."

(See generally pp 288 to 291)

46. These examples from the old law make it abundantly clear, in our opinion, first, that some limit must be placed on the conduct that, in the 21st Century, can be held to justify an exercise of the s.109I bind-over power and, second, that a bind-over order should be expressed in terms that make it clear what the bound over person is to be prohibited from doing. We note with interest that in England the Home Office has proposed that, in making a bind-over order the courts "should not specify 'to keep the peace' or 'to be of good behaviour' rather that the individual is bound over to do or refrain from doing specific activities" (see the Home Office's paper submitted to the Courts Bill Conference - 4 June 2003).

47. As to conduct that would justify a bind-over to keep the peace, we would adopt the approach of the English authorities cited in Steel v. UK and hold that the conduct must involve violence to person or property, or the threat of such violence, or be conduct giving rise to a reasonable apprehension that such violence will take place. In the absence of conduct of the character described we do not think a bind-over order to keep the peace should be made. As to conduct that would justify a bind-over to be of good behaviour, we think the conduct must involve the commission of the actus reus of a criminal offence, or the threat of such an act, or be conduct giving rise to a reasonable apprehension of the commission of a criminal offence. In the absence of conduct of the character described above we do not think a bind-over order to be of good behaviour should be made. It is apparent from what we have said that in some circumstances a bind-over order to keep the peace and be of good behaviour may be made and in other circumstances a bind-over order to be of good behaviour may be made but not an order to keep the peace. The traditional use of both types of bind-over together in all cases should not, in our opinion, be continued.

48. In the present case, the appellant's conduct towards his brother, as found by the magistrate, was conduct that well justified her in considering making an order binding him over to keep the peace and be of good behaviour.

49. Although the traditional form of bind-over order is an order requiring the person concerned to keep the peace and be of good behaviour, without any greater precision, we do not think that an order simply in that general form should any longer be regarded as satisfactory. Nor do we regard an implied limitation by reference to the facts that prompted the making of the order to be satisfactory. We think the principle of legal certainty requires that the order spell out with precision, in the same way as would be expected of an injunction, what it is that the person must not do. For example, in the present case, if a bind-over order was to be made against the appellant, it should have been an order requiring him to keep the peace and be of good behaviour by abstaining from assaulting or threatening to assault his brother or by doing anything to give rise to a reasonable apprehension that he intended to assault his brother, or in some such terms. A guide to an acceptable formulation of a bind-over order would, in our opinion, be whether an injunction in those terms would be acceptable.

50. In the present case the bind-over was expressed by the magistrate simply as a bind-over "to be of good behaviour and to keep the peace". The condition endorsed on the written recognizance signed by the appellant was that

"... if [the appellant] keeps the peace or is of good behaviour for the term of 12 months now next ensuing (or abstains from doing the thing forbidden, or as the case may be) ..."

This language of the condition not only lacked the requisite precision, it was fairly meaningless. There was no "thing forbidden". In our opinion the bind-over failed to comply with the principle of legal certainty. It leaves the appellant unclear precisely what he must avoid doing in order to avoid forfeiting his $1,000.

Fair procedures

51. It is, in our view, essential if a witness, or a litigant in a civil case, or an acquitted defendant is to be made the object of a bind-over order that the person concerned be given prior notice of the proposal (see R v. Lincoln Crown Court, Ex parte Jude [1998] 1 WLR 24 at 27 C-D and the cases there cited). The length of the notice must depend on the circumstances but it must at least be sufficient to enable the person to take legal advice, and to be legally represented (if he did not have legal representation already).

52. In R v. Woking Justices, Ex parte Gossage [1973] 1 QB 448 it was held that the rules of natural justice were not broken by a failure to give an acquitted defendant an indication of a proposal to bind him over. Lord Widgery CJ said that there was an essential difference between persons before the court as witnesses and persons before the court as defendants. As to the latter he said -

"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."

53. We think this approach to the position of acquitted defendants, approved by Auld LJ in Ex parte Jude at p.27 G-H, needs to be viewed with caution. We note the adverb "necessarily" in the last sentence but, in general, we think that, so far as bind-over proposals are concerned, the position of an acquitted defendant has more in common with that of a witness than that of a convicted defendant. What must be done in order to comply with the requirements of natural justice is, of course, fact sensitive and may vary from case to case, but, in general, in our view, a failure to warn an acquitted defendant of the proposal to bind him over and to give him an opportunity to make representations would invalidate the order.

54. R v. Li Wai Chu [1983] 2 HKC 219 was a case in which, at a trial of an individual for assault, the alleged victim had given evidence for the prosecution. The magistrate, having heard the evidence, dismissed the charge but bound over the alleged victim for one year. The victim appealed. de Basto J said this -

"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 (1) 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, and (2) the complainant or witness is apprised of those facts and given an opportunity to be heard as to why an order ought not to be made binding him over to keep the peace." (p.222)

We agree with these remarks of de Basto J subject to one qualification. It is not, in our opinion, necessary for the facts found that justify the making of the bind-over order to be part of the order or to appear on the face of the record provided they are set out in a judgment, such as the magistrate's Statement of Determination in the present case, or in a judgment delivered orally of which a transcript can be made available.

55. In addition, in our opinion, the judge or magistrate proposing to make a bind-over order ought not to fix the sum in which the person concerned is to be bound over without first satisfying himself that the sum is an amount that the person concerned can reasonably be expected to be able to pay. Usually this would require some inquiry into the person's means; but, if the amount were trivial by any standards, e.g. $50, or if it were obvious that the person could reasonably afford to pay the sum, an inquiry would not be necessary.

56. In the present case, the magistrate gave the appellant no prior warning that she had in mind to bind him over. She gave him no opportunity to take legal advice, although his solicitor was present. She gave neither him nor his solicitor an opportunity to make representations as to why he should not be bound over. She made no inquiry as to whether he could reasonably afford to pay $1,000, a sum that, though trivial to many, would not be trivial to all.

57. In these circumstances we think that the procedure whereby the magistrate announced her decision to bind-over the appellant was in breach of the requirements of natural justice as well as lacking the requisite precision in its terms. The order cannot stand and must be quashed. The appellant is entitled to his costs in this Court and below.