HKSAR v. CHAN YUK YING

HCMA881/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 881 OF 2009

(ON APPEAL FROM KTCC 5231 OF 2009)

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J U D G M E N T

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1. The appellant appealed against an order made on 28 September 2009 by Mr Dufton in Kwun Tong Magistrates’ Court that she be bound over for 12 months, on entering into her own recognizance in the sum of $500 to be of good behaviour, by refraining from committing or attempting to commit any criminal act involving dishonesty.  The order was made pursuant to section 109I of the Criminal Procedure Ordinance, Cap. 221.

GROUNDS OF APPEAL

2. In her Notice of Appeal, dated 30 September 2009, the appellant stated that her Grounds of Appeal are:

“I am not willing to be bound over.”

STATEMENT OF FINDINGS

3. In his Statement of Findings the magistrate set out the circumstances in which he came to make the order that the appellant be bound over to be of good behaviour.  The appellant appeared before him as a defendant in a trial of a single charge of theft of a toothbrush from ‘Park N Shop’.  Initially, the proceedings were stood down for the parties to agree and then produce to the court a set of ‘Admitted Facts’.  However, when they came back before the magistrate the prosecution indicated to the magistrate that if the appellant agreed to be bound over and admitted the ‘Brief Facts’, upon a binding-over order, being made the prosecution would offer no evidence on the charge.  The appellant, who was represented by the duty lawyer, indicated that she was willing to agree the ‘Brief Facts’ and to be bound over.  The appellant stated that she understood the magistrate’s explanation to her of the process leading to the binding over, namely:

“A binding over order is not a criminal conviction, you maintain your clear criminal record.  A binding over order is a promise made to court, it will ensure something like this doesn’t happen again.  Do you understand the binding over order, madam?”

The appellant indicated that she agreed to be bound over.

4. The ‘Brief Facts’ admitted by the appellant stated that the appellant had paid for various items at the cashier’s desk of the supermarket but she was stopped on leaving the shop when an alarm activated.  A toothbrush was found in the appellant’s own plastic bag.  She had not paid for that item.  After having been arrested and cautioned the appellant denied culpability for the offence and claimed that she had forgotten to make payment.

5. In his Statement of Findings the magistrate drew attention to the fact that the appellant was not asked to admit the offence alleged against her, rather she accepted that she had not paid for the item and contended that she had forgotten to do so.  Of the nature of that admission, the magistrate said:

“The appellant was only asked to agree to the commission of the actus reus.”

6. The magistrate stated that having regard to the appellant’s conduct:

“In all the circumstances of the case, including the [sic] appellant was of a clear record, her age and medical condition together with the fact Park N Shop inadvertently destroyed the CCTV tape, I was satisfied a binding over order was an appropriate way to deal with the case.”

7. Finally, he observed that at first the appellant seem to misunderstand the process, apparently thinking she was being convicted of theft.  However, having explained the matter to her he stated that:

“I was satisfied she understood the proceedings and willingly consented to be bound over.  Accordingly I made the order the appellant be bound over to be of good behaviour.”

8. On that day the appellant signed Form 36, namely a “Recognizance conditioned to keep the peace or to be of good behaviour or not to do or commit some actual thing”, the “Condition Endorsed” stating that she was injuncted “not to commit or attempt to commit any criminal act involving dishonesty against any person” for 12 months from the date of the recognizance.

THE SUBMISSIONS OF THE APPELLANT

9. I turn now to the oral submissions of the appellant.  This morning the appellant told the court or inquired of the court: “Since I was not guilty, why I was bound over?”  She went on to say: “I was told if I was bound over, I was guilty.  But I forgot to make payment.”

THE SUBMISSIONS OF THE RESPONDENT

10. The court had the benefit of written submissions from Mr Daryanani.  However, I was told that he was ill today and Mr Chau appeared in his place.  In the written submissions, counsel for the respondent submitted that the circumstances in which the appellant came to be bound-over clearly fell within those set out in the judgment of Lord Scott NPJ of the Court of Final Appeal, with whose judgment all the other judges agreed, in Lau Wai Wo v HKSAR (2003) 6 HKCFAR 624.  In particular, he pointed to the fact that the appellant had the advantage of legal advice.

A CONSIDERATION OF THE SUBMISSIONS

11. I turn then to a consideration of the submissions.  It is perfectly apparent that with a considerable degree of patience and obvious clarity the magistrate repeatedly explained to the appellant that on accepting the ‘Brief Facts’ that:

(i)      she was not being convicted of stealing;

(ii)      the charge brought against her was to be dismissed;

(iii)     she would be found not guilty of the charge; and

(iv)     what was required of her was that she enter into a recognizance of $500, the effect of which was that if during the ensuing 12 months she stole something, or committed any act of dishonesty, she might be asked by the court to pay that sum of money.

In the result, the appellant indicated that she understood what the magistrate had explained to her and that she had no question to ask of him.

12. In Lau Wai Wo, Lord Scott noted that in respect of all challenges to a bind over (page 638C, paragraph 16):

“… there will always be two broad questions; first, did the court have power in the particular circumstances of the case to order the bind over, and, secondly, was the procedure adopted by the court fair to the individual who was bound over?  Both these questions must be answered in the affirmative if the bind over is to stand.”

13. Of the issue of “fair procedure” Lord Scott went on to identify specific issues (638 G–H, paragraph 18):

“(1)    What, if any, prior notice of the bind over proposal must the proposed object of the bind over (the defendant) be given?

(2)     What, if any, opportunity to give evidence relating to the proposed bind over or to call other witnesses or to make representations about the proposal should the defendant be given?

(3)     What, if any, opportunity to take legal advice or obtain legal representation should the defendant be given?

(4)     What, if any, enquiry into the defendant’s means should the court take before specifying the sum in which the defendant will be required to enter into recognizances?”

14. Section 109I of the Criminal Procedure Ordinance, Cap. 221 provides that:

“A judge, a District Judge or a magistrate shall have, as ancillary to his jurisdiction, the power to bind over to keep the peace, and power to bind over to be of good behaviour, a person who or whose case is before the court, by requiring him to enter into his own recognizances or to find sureties or both, and committing him to prison if he does not comply.”

15. Section 61(1) of the Magistrates Ordinance, Cap. 227 provides that:

“The power of a magistrate, on complaint of any person, to adjudge a person to enter into a recognizance to keep the peace or to be of good behaviour towards such first-mentioned person shall be exercised by an order upon complaint, and the provisions of this Ordinance shall apply accordingly, and the complainant and defendant and witnesses may be called unexamined and cross-examined, and the complainant and defendant shall be subject to costs, as in the case of any other complaint.”

16. Lord Scott noted of this provision, and others, that it fell to be regarded as providing statutory guidance and where the magistrate proposes of his own motion to make the bind over, it guides the magistrate as to the exercise of this power.

17. In summarising the position in Hong Kong under section 109I of the Criminal Procedure Ordinance, Lord Scott said (at page 643F–I, paragraph 33):

“(1)    no consent is needed to the making of the binding-over order itself;

(2)     the order will require the person against whom it is made to enter into his own recognizances, or to find sureties, or both, with the sanction of committal to prison if he does not comply;

(3)     if the person concerned expresses his consent to being bound over in the terms contained in the order that consent may be taken to constitute his entry into his own recognizances and a binding over will be effective with nothing more needing to be done;

(4)     if the person concerned does not express his consent to the binding over, and refuses or fails to enter into the recognizance that the order has required him to enter into, he will be in contempt and be liable to be proceeded against accordingly.”

Conduct that would justify the making of a binding over order to be of good behaviour

18. Of the conduct that would justify the making of a binding over order to be of good behaviour Lord Scott said (at page 648C–D, paragraph 47):

“As to conduct that would justify a bind-over to be of good behaviour, we think the conduct must involve the commission of the actus reus of a criminal offence, or the threat of such an act, or be conduct giving rise to a reasonable apprehension of the commission of a criminal offence.  In the absence of conduct of the character described above we do not think a bind over order to be of good behaviour should be made.”

Procedural fairness

19. I turn then to the question of procedural fairness.  It is clear that the appellant had notice during the course of the morning of the proposed binding over and had available and received legal advice from the duty lawyer.  Given the amount of the recognizance, no issue arises as to the appropriateness of the order being made in that sum of money.  Also, it is clear that, although the order could be made without the consent of the appellant, her consent, and clearly informed consent, was given prior to the making of the order.

The nature of the conduct

20. I return then to a consideration of the nature of the conduct that is required before the imposition of a binding over order to be of good behaviour is justified.  The Brief Facts describe succinctly the actus reus of theft.  The remaining issue was that of mens rea, namely dishonesty.

CONCLUSION

21. In the result, there is no doubt that the order was properly made.  Accordingly, the appellant’s appeal against the making of the order is dismissed.