R. v. NG KIT YUEN

IN THE COURT OF APPEAL

1991, No. 118
(Criminal)

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J U D G M E N T

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Penlington J.A. :

1. This is an application for leave to appeal out of time against a conviction for being the captain of a ship which entered Hong Kong waters on the 9th of November 1990 with unauthorised entrants onboard, contrary to Section 37(c)(1) of the Immigration Ordinance Cap. 115.

2. Pursuant to Section 37L of the Immigration Ordinance the consent of the Attorney General to prosecute the applicant was signed on the 30th November 1990 and the information was laid on the 1st of December. On the 23rd January 1991 the applicant pleaded guilty to the offence in the magistrate's court and he was committed to the High Court for sentence, pursuant to Section 81B of the Criminal Procedure Ordinance. On the 1st of March 1991 the applicant was sentenced to 6 years' imprisonment by Gall J. He applied to leave to appeal against that sentence and was represented at the hearing of the application by counsel. The application was refused. No point was taken as to the validity of the conviction.

3. By a decision dated the 7th of September 1993 this Court in R. v. Hui Lan-chak and anr. Criminal Appeal 538 1992 considered the question of whether the consent of the Governor was required for prosecutions under Section 37C(1) in addition to that of the Attorney General. That was based on the provision in Section 3 of the Territorial Waters Jurisdiction Act 1878, an act which gave jurisdiction in respect of offences committed by foreign nationals in waters "adjacent to the Queens Dominions". There is no dispute that the applicant is a national of the People's Republic of China and the offence was committed at sea. Section 3 of the 1878 Act provides that consent of the Governor is required for the institution of offences which relied on the Act to give the court jurisdiction. Section 4 of that Act however also provides that it should not be necessary to aver in the charge that such consent had been given and it shall be presumed to have been so given unless, at the trial, that is disputed. It is common ground that no such dispute was raised at the trial here, either in the magistracy or before Gall. J.

4. By the Criminal Law (Amendment) Ordinance 1989, which came into force on the 1st of January 1991 the Territorial Waters Jurisdiction Act 1878 ceased to apply to Hong Kong and was replaced by new sections of the Crimes Ordinance, Sections 23A, 23B and 23C. However, again the consent of the Governor was required by Section 23C for the institution of proceedings. There were no transitional provisions in the amendment and also there was no presumption clause as to consent being given corresponding to Section 4 of the 1878 Act.

5. We have had the benefit of very full and careful skeleton arguments from both Mr. Philip Dykes, who appears for the applicant here, and leading counsel for the Crown Mr. Adrian Huggins Q.C. A preliminary point was (question of) whether the court has jurisdiction to hear this application at all. This was considered in the R. v. Lam Shui-kam 1968 HKLR. 250 where, a majority of the Full Court held that it did have such jurisdiction. It is not contended by either side here that we did not also have jurisdiction to hear an appeal where the applicant was committed by a magistrate for sentence to the High Court and we are satisfied we have jurisdiction to hear this application.

6. There were also submissions concerning the question of whether the requirements for consent under Section 3 of the 1878 Act or Section 23C of the Crimes Ordinance were purely procedural on the basis that, if they were, Section 23C of the Crimes Ordinance was the relevant one at the time of sentence in March 1991, or also possibly in January 1991 when the applicant was committed. If such was the case there was no presumption that the Governor's consent had been given, and no such consent having been produced, the conviction was a nullity. Mr. Huggins argued that even if the relevant sections requiring the Governor's consent were procedural and Section 4 of the 1878 Act could not be relied on by the Crown there was still the common low presumption as set out in Price v. Humphries 1858 2QB 353 which is similar to the maxim omnia presummuntur rite esse acta, it should be presumed that consent had been given if it was not challenged at the trial. It was now far too late for the applicant to raise this point.

7. His position originally was that we should not be concerned at all as to whether or not the Governor's consent had been given even though it would be strange that it had been given here but not in the many other cases which have come before this court. However he now finally conceded that we should consider the matter on the basis that here there was no such consent. I consider that to be right; it would be quite extraordinary if consent had been given here when it was strongly argued in the R. v. Hui Lan-chak that, as here, when the Attorney General's consent was given that was enough, he should be deemed to be consenting also as the Crown's Principal Law Officer in Hong Kong and doing so on behalf of the Governor.

8. On the basis that no consent was given it seems to me that the position is then governed by the decision of the Court Appeal in R. v. Angel. 1968. Vol. 52. Crim. App. R. 280 for which I am indebted to Sears J. There a similar situation arose regarding consent by the Director of Public Prosecutions to a charge under the Sexual Offences Act 1967 which requires such consent. It was found that there was no such consent. Lord Parker L.C.J. said :

"In fact it has been ascertained that the consent of the Director of Public Prosecutions was not obtained, and in the result the whole of the trial, including the committal proceedings, has been a complete nullity, having been instituted without that necessary consent. In the result, the Court has no alternative but to quash the conviction on the ground that the trial was a complete nullity, and accordingly will allow the appeal for that purpose."

9. It seems to me therefore that is the position here and I would allow this application for leave to appeal, treat this as the hearing of the appeal which should be allowed and the conviction quashed.

Mortimer, J.A:

10. I agree and I would also allow this appeal. It seems to me that these proceedings were a nullity. That has been clearly established. The only question is whether after all this time this applicant should have leave to appeal; it is equally clear that this matter was totally overlooked by those who were representing him. He had no idea of the point now taken and justice requires that we should give him leave to appeal out of time as this is an appeal on a question of law. I would also give leave and allow the appeal.

Sears, J.

11. For the reason given by both my Lords, I also agree.