ATTORNEY GENERAL v. CHAN PING KWAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 839 OF 1988

----------------

------------------------

J U D G M E N T

------------------------

1. This is an appeal by the Attorney General brought by way of a case stated. Although the respondent has been served with notice of the appeal, he has not appeared today. There has been therefore no argument put forward on behalf of the respondent but Mr. Hartman for the appellant informs me that the case stated is brought for the purpose of having a principle of law affirmed and if affirmed in the way sought by the Attorney General, no proceedings will be taken against the respondent.

2. The respondent was charged with an offence of careless driving alleged to have been committed on the 27th August, 1987. On the 6th July 1988, he appeared before a learned Magistrate in Western Magistracy for trial on that charge. Although the facts set out in the case stated do not mention that this would have been at least the respondent's second appearance, from my experience in the Magistrates Court I can say with almost absolute certainty that it must have been. Accordingly, when the respondent appeared on the 6th July 1935 it must have been as a result of his earlier entering a plea of not guilty to the charge.

3. On that day, because of the number of cases which the learned Magistrate had before him for trial, he was unable to proceed with the respondent's case immediately. It was therefore stood down for hearing later in the day. The case was called on at 2.45 p.m. The prosecutor then informed the learned Magistrate that the only witness for the prosecution was not then available and she asked that the matter be "stood down". That applicantion was refused and the Magistrate ordered Crown to proceed, but as the Crown had no other evidence he dismissed the charge.

4. On the 19th July the prosecution applied to the learned Magistrate to review his decision, on that occasion he was informed that at the time when the case was called on, the witness, a police officer, was on sick leave and he had to leave the court to see a doctor, and immediately after receiving medical treatment had returned to the court at 2.50 p.m.

5. The learned Magistrate declined to review his original decision to dismiss the charge and he said that he did so for three main reasons:

"Firstly, as each court has such busy list and is required to complete numerous trials, those matters can only be dealt with if the Crown is ready to proceed, or alternatively advises the court at the earliest tine possible that it is not able to proceed. Secondly, the respondent had waited all day in court, he was not notified that the Crown would be seeking to stand the matter down. Had the Crown so advised the court and the respondent as to the predicament of the witness, I could have been more sympathetic to the Crown's position. Thirdly, the offence occurred nearly a year ago, that in itself prejudiced the respondent. And if reinstated the charge on review then that would prejudice him further."

6. It is the contention of the appellant that the learned Magistrate did not exercise his discretion in a judicial way. It is submitted that in considering the application for adjournment he should have considered whether injustice would result to either party if he refused the application.

7. Mr. Hartman has referred me to a number of decisions dealing with the question of how courts should exercise their discretion judicially when considering such applications. In The Queen v. Birmingham Justices, ex-parte Lam and another ([1983] 3 All ER 23) page 28 Wolfe J., said:

"When exercising the discretion which they have whether or not to adjourn cases the justices have to exercise their discretion judicially. Doing that they must be just not only to the defendants but to the prosecution as well. They must not use their toners to refuse an adjournment to give a semblance of justification for their decision to dismiss the prosecution when the refusal of an adjournment moans that that is an inevitable consequence."

8. He also referred to the Attorney General v. Yip Chong Kong (1979 HKLR 141) where Huggins J.A. said at page 140

"It is well established that an exercise of the discretion is a matter of law which can be challenged on appeal. But equally it is clear that this court should not interfere too readily with the exercise of a judge's discretion and should do so only for example, where it is manifest that the discretion has been exercise unreasonably or where the order will result in injustice."

9. Mr. Hartman also referred to two other local decisions where the principle to be found in the cases to which I have just referred has been applied.

10. The question is  Did the Magistrate exercise his discretion in a judicial manner?

11. In this case, the prosecution knew that the trial was to be heard on the 6th July 1988 that they had to be ready at 10 a.m. - on the 6th July. Shat in turn meant that the prosecution witness should have been at court by 10 a.m. on the 5th July. If the witness had to leave the court precincts for a medical reason, he could have advised the prosecutor to that effect. If he had done so the prosecutor should have been able to inform the Magistrate at 2.45 p.m. that that was the reason that the witness was not available. There is nothing in the material put before me to show that the prosecutor informed the Magistrate that the witness had in fact been within the precincts waiting to give evidence, or even that the Magistrate was told that the witness was temporarily unavailable.

12. The Magistrate took the view that there was no sufficient reason put before him to explain the absence of the witness it is understandable that he refused the request to stand the matter down. There was no reason to believe, at that stage, that if he stood the matter down the witness would appear later in the afternoon or, if he adjourned, that the witness would be available on the adjourned date.

13. The Magistrate makes the point that if he had granted the adjournment it would have caused injustice to the respondent. No reason, even on the application to review, was given to the Magistrate as to why the police officer if as was alleged, he had been present at court during the day, did not inform the prosecutor as to his need to leave. It is also rather extraordinary that if he did appear at 2.50 p.m. why the prosecutor did not then make representations to the Magistraste that he had appeared and tender the medical certificate which the police officer no doubt would have had in his possession if he did find it necessary to leave the court to seek medical attention

14. In the circumstances, it seems to me that it cannot be said that the discretion was exercised by the Magistrate in an unreasonable way. He had good reason to exercise his discretion in the way in which he did and there is no reason for me to interfere with the exercise of that discretion. The case stated poses the question "Whether I erred in law in exercising my discretion as I did on the 6th July 1988 in making an order to dismiss the charge." The answer is "No".