THE QUEEN v. LAM YAT SUEN

No 1173 of 1991

Headnote

There is no jurisdiction to bind over a person to keep the peace in the absence of his consent.

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J U D G M E N T

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Kempster, JA:

1. On 14 November 1991 in the Magistrate's Court at North Kowloon Mr Morley, the magistrate, having carefully analysed the effect of the evidence, acquitted Lam Yat Suen of two charges; one of obstructing and the other of assaulting a police. officer in the execution of his duty. Nonetheless he thought it appropriate to make an order that Lam should be bound over in the sum of $750 for 12 months pursuant to the Justices of the Peace Act 1361 and the Common Law.

2. Lam Yat Suen's Notice of Appeal against conviction is, in the premises, misconceived but he has also appealed against the order binding him over.

3. There was no power to bind the appellant over in the absence of his consent which, it is common ground, he declined to give. As was said by Lord Lane CJ when giving the judgment of the Divisional Court dismissing an appeal by the prosecutor from a decision of lay magistrates in England:

"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."

4. After referring to authority he continued:

" ... we have been convinced first, that 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, and secondly, the court cannot, as it were, force such an acknowledgment upon a person behind his back, or treat him as bound when he is not. The court's only remedy where a person refuses to acknowledge his indebtedness, and thereby becomes bound, is to put him in prison until he does.

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    There is nothing in any of the books to which we were referred which suggests that justices have any power to impose an obligation to be bound, except indirectly by threatening imprisonment. If they have such a power, then it seems strange that the much more drastic sanction of imprisonment should have become so firmly rooted in our law at such an early stage. The formal recognisance into which a person is required to enter has remained in substantially the same language for centuries. By that language the person acknowledges that he is indebted to the Queen in the sum fixed. In our judgment, it is far too late to argue that the acknowledgment can be treated as a mere formality, which can be dispensed with when the occasion demands. Acknowledgment to the indebtedness is an essential ingredient in the bounding over process."

Veater v G & Ors [1981] 1 WLR 567 at pp 577 and 578.

5. In that case the Lord Chief Justice expressed the sympathy of the court for the Bristol justices in the position in which they had been left in such an unsatisfactory situation. I express the same sympathy for Mr Morley in his predicament albeit he acted without jurisdiction.

6. This appeal must be allowed and the order binding over the appellant discharged.