HKSAR v. OI SAN KOK LO OI HO

CACC 181/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 181 OF 2001

(ON APPEAL FROM DCCC 306 OF 2001)

______________

______________

_______________

J U D G M E N T

_______________

Stuart-Moore VP (giving the judgment of the Court):

Introduction

1. On 3 May 2001, the Appellant pleaded guilty in the District Court before Judge Sweeney to charges of possessing an imitation firearm (charge 1), contrary to section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, and remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong, contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115. He was sentenced to thirty-two months' imprisonment on the first charge and to a consecutive term of sixteen months' imprisonment on the second, making four years in all.

Ground of appeal

2. The Appellant now appeals against conviction on a matter of law for which the leave of this court is not required.

3. The single ground of appeal is that the proceedings in the District Court were a nullity as both charges were summary offences and should not, therefore, have been transferred to the District Court.

4. It is conceded by Mr Saw, SC, on the Respondent's behalf, that the convictions should be quashed for the reason provided by the ground of appeal. He submitted that the offences were only triable in the District Court if they had been joined in the same charge sheet with an indictable offence.

5. It is only right to say that the procedural error which it was believed had arisen in this case was first drawn to the Appellant's attention by the responsible attitude of the Department of Justice. In a letter dated 7 May 2001, the Appellant was informed that "it has now been determined that these charges were erroneously transferred from the Magistrates' Court to the District Court when the proceedings should in fact have been dealt with in the Magistrates' Court". The letter continued by inviting the Appellant to appeal against his conviction and to contact the Director of Legal Aid to initiate this course. He was also informed that if he succeeded in his appeal, the Court of Appeal "may conclude that your case will need to be referred back to the Magistrates' Court for resumption of the hearing in that court".

6. Mr Adams, who is now instructed on the Appellant's behalf, accepts that jurisdiction remains vested in the Magistrates' Court and that these charges should now be remitted back to that court to be dealt with there.

The statutory provisions

7. The facts of the case matter very little. The Appellant was caught hiding under a truck as it passed through the border crossing point at Lo Wu. The Appellant had hidden a starting pistol, designed to discharge 0.22 blank ammunition, near the spare tyre. He admitted he had the pistol with him "for fun" and that he had landed in Hong Kong unlawfully.

8. The first charge was brought under section 20(1) of the Firearms and Ammunition Ordinance, Cap. 238, which provides:

"(1) Subject to subsections (2) and (3), any person who is in possession of an imitation firearm commits an offence and is liable to imprisonment for 2 years."

9. For present purposes, subsections (2) and (3) have no relevance, but nowhere in the section is there any reference to this offence being triable upon indictment.

10. Turning to the immigration offence, section 38(1)(b) of the Immigration Ordinance, Cap. 115, provides that:

"(1) Subject to subsection (2), a person who,

...............

(b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director,

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 years."

11. Subsection (2) has no relevance to these proceedings, but once again there is no reference anywhere in the section to this offence being triable upon indictment.

12. Part IV of the Magistrates Ordinance, Cap. 227, makes provision for the transfer of offences to the District Court. Section 88(1), so far as it is relevant for present purposes, provides:

"(1) Notwithstanding anything contained in any other provision of this Ordinance ...... whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Secretary for Justice-

(a) shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court; and

(b) may, if the person is also accused of any offence triable summarily only, make an order transferring the charge or complaint in respect of the summary offence to the District Court."

13. The somewhat unhelpful definition of "indictable offence" found in section 2 of Cap. 227 provides that it means:

"any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court".

14. It is plain from the statutory provisions we have cited that if an offence which is triable summarily only is to be transferred to the District Court it must be accompanied by an indictable offence.

15. Furthermore, the jurisdiction of the District Court in criminal proceedings is provided for by sections 74 and 75 of the District Court Ordinance, Cap. 336. In brief, these sections give the District Court jurisdiction to try a charge or complaint transferred to the court by a magistrate in accordance with the provisions of Part IV of the Magistrates Ordinance (sections 88-90) and proceedings under section 65F of the Criminal Procedure Ordinance, Cap. 221, where the Court of First Instance has transferred the case to the District Court.

16. The issue which has arisen in this case is by no means new to this court. In R v Tong Yuen CACC 19/1988, the situation was very similar to the present appeal because in that case the applicant had been dealt with in the District Court for possessing an imitation firearm and the same ground of appeal was advanced. It was pointed out in the course of argument in Tong Yuen that sections 19 and 21 of the Firearms and Ammunition Ordinance had made the intention of the Legislature clear in that they each referred to a penalty following "conviction upon indictment" whereas no corresponding words are to be found for a section 20 offence.

17. The court in Tong Yuen went on to consider the terms of section 89(1) of the Interpretation and General Clauses Ordinance, Cap. 1, which read:

"Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless-

(a) the offence is declared to be treason, felony or misdemeanor;

(b) the words 'upon indictment' appear; or

(c) the offence is declared to be a 'misdemeanor triable summarily'; or

(d) the offence is transferred to the District Court in accordance with Part IV of the Magistrates Ordinance."

18. The court in Tong Yuen accepted argument that a section 20(1) firearms charge clearly did not come within categories (a), (b) and (c) of section 89(1) of the Interpretation and General Clauses Ordinance. The court, having considered paragraph (d), also accepted that this did not create any new category of offence triable in the District Court because it was:

"in reality, a provision dealing only with offences transferred from the Magistrates' Court to the District Court which must, or they could not have been properly transferred under section 88(1) of the Magistrates Ordinance, have been designated indictable offences."

19. The court went on to conclude that this offence was:

"prima facie an offence that was triable summarily and was not one which by virtue of section 89 could be tried otherwise than summarily and that the District Court did not, therefore, have jurisdiction to hear the matter. Jurisdiction remained vested in the magistrate."

20. It seems abundantly plain to us in the present case that the Legislature intended the section 20(1) offence of possession of an imitation firearm to be triable summarily. Firstly, there is no indication in section 20(1) to the contrary. Secondly, the maximum sentence for the offence is set at two years' imprisonment which is within the powers of punishment of a permanent magistrate provided for under section 92 of the Magistrates Ordinance:

"Provided that nothing in this section shall affect any greater or lesser punishment specifically provided for in any other Ordinance."

21. Thirdly, whilst we do not rely on the specific argument adopted in Tong Yuen that section 89(1) of the Interpretation and General Clauses Ordinance has application, because that section has now been repealed, this was, however, re-enacted in a slightly amended form in section 14A(1) of the Criminal Procedure Ordinance to take into account the abolition of the distinction between a felony and a misdemeanour. Apart from this, there is no change of any substance which has been made to the legislation so that the reasoning in Tong Yuen remains valid for present purposes.

22. The question which then arises is whether the other offence, brought under section 38(1)(b) of the Immigration Ordinance and carrying a maximum penalty of three years' imprisonment, is to be regarded as a summary offence. Again, there is no suggestion in the wording of this part of section 38 that the offence is triable on indictment. Section 38(1)(b) of the Immigration Ordinance provides:

"(1) Subject to subsection (2), a person who-

..................

(b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director,

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 years."

23. Subsection (2) has no application for present purposes.

24. Section 38(1)(b) is to be contrasted with an offence under section 38(4) which provides:

(4) If a person lands from a ship in contravention of subsection (1)(a)-

(a) the captain of the ship; and

(b) the owner of the ship and his agent,

shall be guilty of an offence and shall be liable-

(i) on conviction on indictment, to a fine of $600,000 and to imprisonment for 7 years; and

(ii) on summary conviction, to a fine of $600,000 and to imprisonment for 3 years, ....."

25. In our opinion, the reasoning in Tong Yuen has application to the immigration offence in the second charge. Unlike a charge brought under section 38(4) where there is specific reference to a penalty following "conviction upon indictment", there are no such words for the section 38(1)(b) offence. We take the view, therefore, that the offence in charge 2 was a summary offence.

Conclusion

26. Accordingly, we shall allow the appeal.

27. As we said in HKSAR v Tang Siu-kwong [2000] HKC 313 at 317, which was a case concerning copyright offences where a similar problem had arisen:

".... the transfer of these summary offences on their own, unaccompanied by an indictable offence, was null and void. The magistrate had no jurisdiction to make an order transferring them to the District Court."

28. Accordingly, in the present appeal, the convictions will be quashed and the sentences which were imposed are set aside. Following Attorney General v Nunns (Permanent Magistrate) and Anor, [1987] 2 HKC 294 at 296, it is clear that a magistrate who has acted in excess of his jurisdiction is thereafter competent to exercise his jurisdiction properly. The charges in the matter presently before us have at all times remained within the jurisdiction of Magistrates' Court and it follows, as it did in Tong Yuen, that the quashing of these convictions is without prejudice to the jurisdiction of the magistrate.