RE WU KO-TSONG

HEADNOTE

Section 104 of the Magistrates Ordinance, Cap. 227.

Application for review.

Effect of inability of the Magistrate who heard a case to himself hear an application for a review. Applicant for a review must comply with sub-sections 1 and 2 of section 104 but can call in aid the provisions contained in section 54 of the Interpretation Ordinance. In this case Order of Mandamus issued requiring the Magistrate to hear the review sought.

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JUDGMENT

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1. The applicants are applying for a judicial review of a decision made by Mr. Duffus, a Magistrate not to entertain an application to review decisions made by him on the 5th of October 1984 in respect of proceedings where the applicants pleaded guilty and were convicted of offences under the Miscellaneous Licences Ordinance, Cap. 114. Mr. Duffus recorded convictions for all three offences, imposed fines and ordered the confiscation of valuable equipment which was seized on the premises by the police.

2. Mr. O'Reilly Mayne who was representing the applicants submitted that it was important to his clients that Mr. Duffus' sentences should be reviewed under section 104 of the Magistrates Ordinance rather than Lodging an appeal against the sentences imposed. The reason he gave for this was that when the summons was heard by Mr. Duffus on the 5th of October, he did not have before him relevant evidence which was available which might have an important bearing on upon the penalty or penalties which should be imposed. In this connection, it would, of course, be borne in mind that appeals against Magistrate's decisions are not by way of re-hearing in this jurisdiction.

3. The sequence of events in this case was rather unfortunate. On the 13th of October, the applicants' solicitors, Messrs. Lau, Chan & Ko wrote a letter to Mr. Duffus informing him that they had received instructions from their clients to seek a review of his decision. Reference was further made in the letter to arrangements which had been made for the hearing of an application for a review on the 18th of October. On the 18th October, Mr. O'Reilly Mayne and his junior attended at Kwun Tong Magistracy for the purpose of this application. Mr. Rogers, another Magistrate then entered the court and announced that Mr. Duffus had been taken sick and would be unable to sit that afternoon. Mr. Rogers then adjourned the review for a date to be fixed before Mr. Duffus when he was restored to health. The proceedings were adjourned to the 29th of October before Mr. Duffus Mr. Duffus then held that by virtue of the wording of section 104 aforesaid, he was unable to entertain the application for the review as sub-section 1 and sub-section 2 of the section had not been complied with. These sub-sections read as follows:

It was Mr. Duffus' contention that the application for the review had to be made to him personally. It could not be made to Mr. Rogers and Mr. Rogers had no power to adjourn the matter as he purported to do. In addition to this, Mr. Duffus was not empowered to remedy the situation at the adjourned hearing on the 29th of October as he had no inherent power for this purpose. I am satisfied that in this connection Mr. Duffus is correct and accordingly this application can only succeed if the applicants are able to establish that they have complied with section 104 either by Messrs. Lau, Chan & Ko's letter of the 13th of October or Mr. O'Reilly Mayne's attendance at Kwun Tong Magistracy on the 18th of October.

4. Mr. O'Reilly Mayne submitted that Messrs. Lau, Chan & Ko's letter of the 13th of October amounted to an application for the purposes of the section. He based this argument on separating sub section 2 into two separate parts. He argued that the requirment for the application being made in open court referred only to applications which were made by Counsel. This is an ingenuous argument but I do not think that it can be sustained. Mr. Fleming for the Crown suggested that the reference in the section to the application being made by "the party himself" clearly envisaged that the applicant would himself be physically situate in the court. I have no doubt that Mr. Fleming is right in this contention. The sub-section must be read as a whole and it is clearly predicated upon a premise that the application is made in court. Even if I am wrong in this, I do not think that this part of Mr. O'Reilly Mayne's submission can succeed. It is clear from the manner in which Messrs. Lau, Chan & Ko's letter of 13th October is couched that it is in their anticipation that the application itself will be made in court on the 18th of October and that the application is not being made in the letter. It is evident from the letter that all that its purporting to do is to confirm arrangements to this end.               

5. However, if I understood Mr. O'Reilly Mayne correctly, his main submission is that his attendance on the 18th of October at Kwun Tong, Magistracy did amount to an application for a review under section 104. I think that he accepted the necessity for the application being made before the Magistrate rather than any Magistrate. He surmounted this difficulty by calling in aid the provisions contained in section 54 of the Interpretation Ordinance Cap. 1. Section 54 reads:

Mr. Fleming argued that section 54 could not resolve this dilemma. "Magistrate" is also defined in the Interpretation Ordinance. There was no saving provision in Cap. 1 relating to Magistrates similar to section 54. I do not think that this is of any relevance. It is evident from a perusal of the definitions in section 3 of the ordinance that a number of other government servants or public officers such as the "Government Printer" and the " Secretary" are also defined in the ordinance and clearly it must be contemplated that they would be included within the designation of "public officer".

6. Mr. O'Reilly Mayne's contention received further support in my view by the course of action which was adopted by Mr. Rogers when he presided over the proceedings on the 18th of October in place of Mr. Duffus. He purported to adjourn the proceedings to a further date in the future. In doing so, he referred to the necessity for Mr. Duffus to hear the review. I am satisfied that he was indeed seized of the application when he made this order. I am further satisfied that section 54 of the Interpretation Ordinance can properly be invoked and that Mr. Rogers did validly adjourn the matter which was before him. The consequence of this is that Mr. O'Reilly Mayne has succeeded in satisfying me that the applicants have complied with the requirments of sub-sections 1 and 2 of section 104 of the Magistrates Ordinance. This being the case Mr. Duffus would have been empowered to hear the review on the 29th of October by virtue of the provisions contained in sub-section 4 of section 104.

7. The result of this is that I must make an Order of Mandamus directing Mr. Duffus to hear and determine the review which is sought by the applicants. I will hear the parties as to costs.