DARRYL PENRICE v. SECRETARY FOR JUSTICE

HCZZ 39/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

INTENDED ACTION NO 39 OF 2015

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J U D G M E N T

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1.  The Applicant was detained in Lai Chi Kok Reception Centre. He was refused bail pending the trial of six charges including,

a ‘Assault Occasioning Actual Bodily Harm’,

b ‘Criminal Damage’ (2 counts),

c ‘Assaulting a Police Officer’ (2 counts), and

d ‘Overstaying’.

2.  He applied for a writ of habeas corpus.  After hearing the submission, I refused the application.  I now give reasons. 

3.  On 15 January 2015, at about 1 pm, the applicant went to the office of China Daily at Hing Wai Industrial Centre, Aberdeen.  He requested the editor to publish incidents of injustice of the United States Government.  The editor refused.  The applicant threw his shoulder bag at the editor.  When two police officers arrived, the applicant assaulted the officers.  During the struggle, the applicant snatched the baton from a police officer and broke the glass door of the office.  He was eventually subdued. 

4.  The applicant was refused bail in the Magistrates’ Court and in the High Court.  He was due to stand trial in April 2015 at Eastern Magistrates’ Court. 

5.  The applicant made the following complaints in support of his affirmation:

a He was not served an indictment on 27 January 2015 as required under ss14(1)(a), 28, 29, of the Criminal Procedure Ordinance (“CPO”). He alleged that these provisions required the Secretary for Justice (“SJ”) to serve an indictment within 7 days after his case was first brought up before a magistrate on 20 January 2015. 

b All the provisions cited by the applicant relate to trial of indictable offences in the Court of First Instance.  They do not apply to the situation of the applicant’s charges which would be dealt with in the Magistrates’ Court. 

c The applicant mentioned s74(1) of the Magistrates Ordinance.  This section is irrelevant.  It only empowers the SJ to apply for a warrant to arrest the person who is the subject of an indictment or to bring him before a magistrate if he is in custody by the Correctional Services Department. 

d The applicant complained that he was never served with a ‘Notice of Prosecution’ under s7D and a ‘Notice to appear’ under s8A of the Magistrates Ordinance.  

e Section 7D concerns summary offences which attract penalty of a fine of $10,000 and imprisonment of 6 months.  It does not apply to the offences which the applicant had allegedly committed. 

f Section 8A mainly concerns regulatory offences under the 4^th Schedule, Magistrates Ordinance.  The offences in relation to the applicant are not included in that Schedule. 

g The applicant complained that he was not served with an indictment, he therefore refused to enter any plea under s49(2) of the CPO when brought before a magistrate on 3 March 2015.  Again this complaint is misconceived as s49(2) only applies to trial in the Court of First Instance.

h The applicant was brought before another magistrate on 11 March 2015 for bail application.  He repeated similar complaints as stated above.  His bail was duly refused.  Before that hearing, the applicant had already applied to the Court of First Instance twice for bail and was refused. 

i The applicant also complained that the magistrate should not treat him as pleading not guilty under s51(1)(c), CPO, as he was not formally served with an indictment.  Section 51 is applicable to proceedings in the Magistrates’ Court.  The wording of the provision would need to be adapted to the procedures of the Magistrates’ Court.  By then the applicant had already been served with the charge sheet which was the equivalent of the indictment.  He also received other related documents.  As the applicant did not answer directly to the charge, the magistrate was right to enter a plea of not guilty under s51(1)(c).

6.  The first issue in this application is whether the detention is lawful.  I need not repeat the facts summarized above. The applicant was lawfully arrested in January and his bail was refused by various magistrates and judges.  In my judgment, his detention is lawful. 

7.  The next issue is whether the detention was unreasonably long to make it unlawful.  The applicant was arrested in January.  He was brought before various courts to review his bail and for other procedural matters.  His trial was fixed to 27 April 2015.  By that time, he would be detained for 3 months.  I do not think the detention was unreasonably long. 

8.  I entirely agree with the comments by Cheung J (as CJHC then was) in Re Michael K Ogunade HCAL 20/2005. The writ of habeas corpus is an extraordinary remedy and would only be issued in cases where the ordinary legal remedies are inapplicable or unavailable.  The applicant was duly remanded in custody by various courts.  He should apply to a court for bail if there is any change of circumstances.  

9.  The applicant had made various complaints against the Correctional Services Department and the Police.  They include refusal of making phone calls to potential lawyer, failure to assist his legal aid application and loss of some court documents.  Some of the complaints have been dealt with in the Magistrates’ Court.  As to the others, I do not think any of them would render the present detention unlawful.  In my view, he should complain direct to the various Commissioners concerned.

10.  For the above reasons, I refuse his application.