OWEN JOHN INGLIS v. LOH LAI KUEN, EDA

HCAL 74/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.74 OF 2004

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. This application for judicial review arises out of summary proceedings taken against the applicant for an offence of speeding.  On 1 June 2004, the applicant’s legal representative, a solicitor, appeared before the respondent at the Shatin Magistracy in order to plead guilty to the offence of speeding on behalf of the applicant.  The applicant was not present.

2. The applicant’s solicitor sought to enter a plea on behalf of the applicant pursuant to s.18 of the Magistrates Ordinance, Cap.227 (‘the Ordinance’) which states that, in respect of summary proceedings :

“      At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent:

       Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party.” [my emphasis]

3. The respondent; that is, the presiding magistrate, was not satisfied however that s.18 of the Ordinance permitted a plea to be taken in the absence of the applicant.  She therefore adjourned the matter so that arrangements could be made for the applicant to make his plea personally.  The transcript of the proceedings before the magistrate reveals that she concluded the hearing by ruling : “… if the defendant is not here to take plea, plea can’t be taken.”

4. It is this ruling of the magistrate, made on 1 June 2004, which is challenged in these proceedings.  The applicant seeks an order of certiorari to bring up and quash the decision.  It is asserted that the decision was contrary to law in that the magistrate refused to hear and determine the summons served on the applicant without the applicant appearing personally in court.  A further order is sought in terms of O.53, r.3(10)(a) of the Rules of the High Court remitting the matter to the Principal Magistrate or a different magistrate of the Shatin Magistracy to determine the applicant’s summons in accordance with law.

Background

5. In February 2003, the applicant was served with a summons issued pursuant to s.8 of the Magistrates Ordinance, Cap.227 (‘the Ordinance’).  That section is contained within Part II of the Ordinance which bears the heading : ‘Procedure in respect of summary offences’.

6. The summons served upon the applicant stated that an information had been laid alleging that, while driving a private motor vehicle, he had exceeded the permitted speed limit and was therefore guilty of an offence contrary to s.41(1)(a) of the Road Traffic Ordinance, Cap.374.  The maximum penalty for a contravention of that section is a fine of $4,000.  The offence is therefore a summary offence.

7. The applicant, a businessman who spent much of his time out of Hong Kong, resolved to contest the matter.  His intended defence was based on a challenge to the accuracy of the device used by the police to measure his speed.  Accordingly, the applicant’s solicitor appeared before a magistrate at Shatin Magistracy to indicate that the applicant, who was not present in court, would plead not guilty.

8. Thereafter a number of trial dates were set but adjourned.  In the main, although not entirely, the adjournments were made to assist the applicant.

9. By letter dated 12 December 2003, the First Clerk of the Shatin Magistracy wrote to the applicant’s solicitors, with a copy sent to the applicant, stating that, on the directions of the court, the trial had now been set for 1 June 2004.  The letter said : “You are therefore required to appear at this newly appointed date, time and venue”.

10. Shortly after the setting of this trial date, the applicant learnt of a judgment which confirmed the accuracy of the device used by the police to measure his speed.  In light of this, he saw no purpose in defending.  The applicant’s solicitor then wrote to the First Clerk to inform him that the applicant would now plead guilty.  In a second letter, the solicitor intimated that the applicant himself would not attend court.  He stated, however, that, pursuant to the provisions of s.18 of the Ordinance, he would appear on the applicant’s behalf.

11. As I have earlier indicated, when the solicitor attended court and attempted to enter a plea of guilty on behalf of his absent client, the magistrate refused to accept the plea, ruling that, in accordance with the law as she understood it, the plea must come from the mouth of the applicant himself.

Binding precedent

12. Before making her ruling, the magistrate invited submissions as to law.  In the course of those submissions, she was referred to a judgment of this court given by Sears J, that of Chain Chi Woo David v. Lo Polly (special magistrate) [1996] 4 HKC 466.

13. The Chain Chi Woo judgment was directly on point.  Accordingly, unless it could be shown to be ousted by higher authority or to be per incuriam, it constituted binding authority.

14. As to the facts of Chain Chi Woo, they can briefly be stated.  Counsel appeared before a magistrate, his client being absent, and sought to enter a plea of guilty to careless driving on his behalf.  The magistrate refused to accept the plea, ruling that it must come from the mouth of the accused.  An adjournment was ordered so that this could be done.  On an application for judicial review, Sears J quashed the magistrate’s ruling.  The headnote to the judgment reads as follows :

“      Section 18 of the Magistrates Ordinance (Cap.227) provided that a party may be represented by counsel at the hearing of a complaint or information and a party so represented should be deemed not to be absent.  Since the applicant was represented by counsel and the proviso to s.18 did not apply, the applicant was not absent before the magistrate.  The magistrate was wrong to adjourn the case.”

15. The judgment of Sears J is not discoursive.  That is because the Crown conceded that the magistrate had erred in law.  The judge was nevertheless of the view that the words of s.18 were “simple and completely clear” and allowed for a plea to be given by an accused’s legal representative even though the accused was himself not present.

16. It appears that the reason why the magistrate in the present case was not persuaded by the judgment of Sears J, nor held herself bound by it, was due to her attention being drawn to a letter written in 2002 by the Chief Magistrate to the Law Society.  In that letter the Chief Magistrate had raised the issue of the meaning and extent of s.18 of the Ordinance.  While accepting that the judgment of Sears J was ‘on point’, he had said that, in his opinion, it may not have been finally determinative of the issue.  That letter of course had been written by the Chief Magistrate in a purely administrative not judicial capacity.  It did not constitute precedent.

17. Why then did the magistrate determine that it was proper for her to ignore a judgment that was of direct relevance and was, on the face of it, binding upon her?  Regrettably, the magistrate did not condescend to reasons.  However, Mr Zervos SC, who appeared for the Department of Justice, said that it must be inferred that the magistrate believed either that the judgment was ousted by higher authority or was per incuriam.

18. In the course of the hearing, the magistrate cited four judgments, each taken from the Chief Magistrate’s letter, which state the principle that a plea of guilty must come from the mouth of the accused.  The magistrate invited the applicant’s solicitor to address her on those cases.  Unsurprisingly, without notice, he was not in a position to do so.

19. Two of the judgments referred to by magistrate were of the Hong Kong Court of Appeal.  Both judgments, however, concern indictable offences; that is, as defined in s.2 of the Ordinance, offences punishable by imprisonment.

20. Indeed, the first judgment, R v. Siu Kwong Wing (unreported) CA 528/1992, did not concern summary procedures at all but a trial on indictment in the District Court.  In that judgment, the court confirmed that, as a matter of correct procedure, agreed facts should be read in open court and acknowledged by an accused personally, whether represented or not.

21. The second judgment, R v. Wong Yan Fuk (unreported) CA 414/1993, concerned proceedings in the Magistracy but in respect of the indictable offence of managing an unlicensed massage establishment.  The maximum penalty for the offence, on a first conviction, is six months imprisonment and, on a subsequent conviction, two years.  In any event, the appellant in the case had pleaded personally, his plea being one of guilty.  On appeal, the issue was whether his plea had been vitiated by a failure to have the agreed facts read out and acknowledged by him.  In rejecting that argument, the court referred back to what it had said in R v. Siu Kwong Wing (cited in para.20 above), confirming that the procedures outlined there should have been adopted.  As to the giving of the appellant’s plea, the court said only : “The plea was tendered, as it should of course have been, by the defendant himself”.  It is apparent on a reading of the judgment that the meaning and extent of s.18 of the Ordinance was simply not germaine to the case.

22. As for the two English authorities cited by the magistrate, R v. Ellis (1973) 57 Cr App Rep 571 and R v. Williams (1976) 64 Cr App Rep 106, neither concerned summary proceedings; both concerned trials on indictment in the Crown Court.

23. The four authorities referred to by the magistrate state the general rule that an accused in criminal proceedings must render his plea personally.  But the judgment of Sears J in Chain Chi Woo held that in respect of summary proceedings, s.18 of the Ordinance — if the proviso did not apply — constituted a statutory exception to the general rule.

24. That being the case, I believe it is untenable to suggest that the magistrate was entitled to conclude that the four authorities constituted higher binding authority which entitled her to conclude — if, in fact, she did so — that she was not therefore bound by the judgment of Sears J.

25. In the course of the short hearing before her, the magistrate said that, in her opinion, s.19 of the Ordinance required a defendant to answer a charge or complaint “personally”.  But her opinion, even if correct, did not, in my view, entitle the magistrate to avoid the judgment of Sears J, one which could not legitimately be distinguished on the facts, which states in unambiguous terms that, read in the context of Part II of the Ordinance, s.18 does permit a legal representative to enter a plea on behalf of an absent accused provided of course that the proviso in that section does not apply.

26. Although during the course of submissions I raised the issue of the judgment of Sears J constituting binding authority on the magistrate, I accept that it was not, except peripherally, the subject of argument before me.  However, it seems plain to me that, whatever that magistrate’s personal views on the matter, she had no ground for holding — as it must be inferred she did — that the judgment was not binding.  In my view, it was binding.

27. On the single basis therefore that the magistrate made her ruling in defiance of binding precedent, I am of the view that I must allow the application and quash her ruling.

28. But even if I am wrong in finding that Chain Chi Woo was binding upon the magistrate, I am nevertheless satisfied that the judgment does correctly state the law.  I have, of course, come to that determination on the basis that, although the judgment is not binding upon me, it constitutes persuasive authority.

The nature and extent of s.18

29. As I have earlier indicated, Part II of the Ordinance is concerned with summary proceedings.

30. Section 8(1), which is contained within Part II, makes it lawful for summary proceedings to be instituted by summons.  It reads :

“      In every case where a complaint is made to or an information laid before a magistrate … being a complaint or information in respect of which a magistrate has power to convict summarily or to make an order for the payment of money or otherwise, it shall be lawful, subject to this Part, for a summons to be issued by a magistrate or an officer of a magistrate’s court …”

31. Section 8(1A) looks to the form of the summons, stating what must be contained in it.  The summons must, of course, be addressed to the person against whom the accusation of a criminal offence has been made and must direct him as to how he is to obey the summons.  Section 8(1A) reads :

“      Every such summons shall be issued to the person against whom the complaint has been made or information laid, stating the matter of the complaint or information and requiring him to appear at a certain time and place before a magistrate to answer to the complaint or information and to be further dealt with according to law.”

32. Section 19 directs what will be done at the hearing itself; the procedure to be adopted in the event of a plea of guilty and the procedure to be adopted in the event of a plea of not guilty.  Again, unsurprisingly, as the subject of the proceedings is the person against whom the accusation of a criminal offence has been made, as with s.8(1A), the language of the section addresses itself to that person.  Section 19 reads :

“      Where the defendant is present at the hearing, the substance of the complaint or the information (or the summons which has been issued under section 8 pursuant to such complaint or information) shall be read over to him, and explained if necessary, and he shall be asked whether he admits or denies the truth of the complaint or information.  If the defendant admits the truth of the complaint or information, his admission shall be recorded as nearly as possible in the words used by him, and the magistrate shall convict him or make an order against him accordingly; but if he does not admit the truth of the complaint or information as aforesaid, then the magistrate shall proceed to hear upon oath the complaint or informant and such witnesses as may be produced in support of the complaint or information, and also to hear the defendant and such evidence as may be adduced in defence; and also to hear and examine such other witnesses as the complainant or informant may examine in rebuttal, if the defendant or his counsel has examined any witnesses or given any evidence other than as to the defendant’s general character.”  [my emphasis]

33. Section 19 makes reference to the person accused of an offence or his legal representative examining witnesses in the course of a trial.  This is directly consequential upon s.16 which provides that, even though the proceedings are summary, an accused person shall have the right to conduct his case personally or by way of legal representation.  In this regard, s.16(1) reads :

“      The party against whom the complaint is made or information laid shall be admitted to make his full answer and defence thereto and to have the witnesses examined and cross-examined by him or by counsel on his behalf.”

34. But if s.16(1) makes specific provision for legal representation, what is the purpose of s.18 which, to cite it again, reads :

“      At the hearing of a complaint or information, a party may be represented by counsel; and an absent party so represented shall be deemed not to be absent:

       Provided that appearance of a party by counsel shall not satisfy any provision in any enactment or any condition of a recognizance expressly requiring the appearance of the party.” [my emphasis]

35. Section 18 cannot be simply a reconfirmation of what is already provided for in unambiguous terms in s.16(1) and is also provided for in s.19.  That would render s.18 otiose.  What must be remembered is that s.18 is a section unto itself.  It must therefore have a purpose additional to, or distinct from, s.16(1) and/or s.19.

36. During the course of submissions, it was suggested that the purpose of s.18 may be to complement s.18A which commences :

“      Subject to sections 18E and 19A(5), in any case where a summons has been served on the defendant a reasonable time before the hearing and at the time and place appointed for the hearing only the complainant or informant appears, the magistrate—

       (a)    may issue a warrant to arrest the defendant and bring him before a magistrate and adjourn the hearing for such time as he may think fit;

       (b)    may adjourn the hearing under section 20 and if the defendant does not appear at the time and place to which the hearing is adjourned may issue a warrant to arrest the defendant and bring him before a magistrate; or

       (c)    …”

In short, the suggestion, as I understood it, was that s.18 has a single, limited purpose; that is, to prevent a magistrate issuing a warrant of arrest against an absent accused person if that accused is represented in court by counsel.

37. Assuming that s.18 has no other purpose, what may the magistrate do if he adjourns the hearing pursuant to s.18A(3) so that the accused person may appear at the adjourned hearing and the accused does not appear personally but is again represented by his legal representative?  At first blush, it would appear that, on this second occasion, the magistrate may issue a warrant for the arrest of the accused.  But s.18A(b) only empowers the magistrate to adjourn the matter under the provision of s.20 which, in respect of an accused person, provides in subsection 6(b) that if :

“the defendant does not appear, either personally or by counsel, the magistrate may—

       (i)     issue a warrant for the arrest of the defendant;

       (ii)     declare any recognizance to be forfeited; and

       (iii)    adjourn the hearing for such time as he may think fit.”

       [my emphasis]

38. Accordingly, if, at the adjourned hearing, the accused refuses personally to appear and is represented only by his counsel then the magistrate is again prohibited from issuing a warrant of arrest.  The magistrate may of course forfeit any recognizance.  But what if there is no recognizance to forfeit, a common occurrence in summary proceedings?  As Mr Zervos SC, for the Department of Justice, conceded, outside of proceedings for contempt of court, the magistrate is powerless to demand the personal presence of an accused where that accused is legally represented at each hearing.  That, in my view, can never have been the intention of the legislature which in other respects gives specific powers of enforcement to the magistrate.

39. In my judgment, there is only one way to read s.18 and that is in accordance with Sears J’s judgment in Chain Chi Woo.  In summary proceedings conducted under Part II of the Ordinance, subject always to the proviso contained within the section not being applicable, an accused person may decline to attend court in person and shall not be subject to sanction provided his legal representative (defined in s.2 of the Ordinance) appears in his place.

40. In the course of his submissions, in looking to the general rule that an accused must utter his own plea, Mr Zervos submitted that in principle there could be no difference between serious and less serious crimes.  While I agree that they are all of the same genus, I do not agree that they cannot be treated differently procedurally.  The Ordinance, for example, makes provision in respect of certain petty offences for pleas of guilty to be submitted by post.

41. Nor can it be said that the interpretation of s.18 made by myself and Sears J imposes some radical procedural change on what I understand to have been long-established practice.  In this regard, the headnote to an authority that is nearly a hundred years old; namely, the 1909 case of R v. Thompson [1909] 2 KB 614 reads :

“      Where in answer to a summons issued by a Court of summary jurisdiction the defendant has appeared by counsel there is no obligation upon him to appear personally, and the justices have no jurisdiction to compel his personal appearance by warrant.”

42. As I understood his submissions, while Mr Zervos did not go so far as to say that all persons served with a summons under s.8(1) of the Ordinance (cited in para.18) must attend court personally to utter their plea, it was his contention that a magistrate has a discretion whether or not to require the personal attendance of an accused; certainly, he said, the discretion must have applied in the present case.  Mr Zervos based his contention on the provisions of s.20(1) of the Ordinance which reads :

“      Before or during the hearing of any complaint or information, a magistrate may adjourn the hearing to such time and place and on such conditions as he thinks fit.”  [my emphasis]

43. In the present case, said Mr Zervos, the applicant had originally indicated that he intended to defend the matter.  There had been several adjournments.  The applicant then decided to plead guilty.  Surely in the circumstances it was legitimate for the magistrate to adjourn the matter, pursuant to the provisions of s.20, to direct the personal attendance of the applicant.

44. I have two difficulties with Mr Zervos’ submissions in this regard.  First, the magistrate did not indicate that the history of the proceedings persuaded her that, in this particular case, she should direct the personal attendance of the applicant.  As I have read the transcript, the magistrate’s concern went to whether an accused’s counsel was able in law to enter a plea when the accused himself was absent.  Second, if Mr Zervos is correct and a discretion vests with a magistrate to demand personal attendance for the purposes of plea, how is the exercise of that discretion to be enforced if an accused does not appear personally but is instead represented by counsel?  That returns me to the difficulties I have spoken of in paras.36, 37 and 38 supra.

45. In my opinion, Mr Paul Harris, who appeared for the Bar Association (as an interested party), was correct when he said that s.18 is a deeming provision.  If an accused’s counsel is in court duly instructed to make a plea it is as if the accused himself is there and the plea is to come from the accused’s own mouth.

46. In my view, although s.18 states that an absent party represented by counsel shall be deemed ‘not to be absent’, in direct English that can only be read to mean that the party is therefore deemed ‘to be present’.  S.18 does not therefore allow for the exercise of a discretion by a magistrate to refuse to receive a plea from the mouth of counsel and to direct the personal attendance of an accused at court in order to give that plea.  In terms of s.18, the accused is already deemed to be before the court.

47. The proviso to s.18 states that the deeming provision of the section shall not satisfy any provision ‘in any enactment’ which expressly requires the personal appearance of a party.  But, in my view, the reference to ‘any enactment’ cannot apply to Part II of the Ordinance itself.  If that was the case, s.18 would again be rendered otiose.

48. For the reasons given, therefore, I am satisfied that the magistrate was wrong in law to refuse to accept the applicant’s plea of guilty given through his counsel when the applicant himself was absent.  That being so, orders will be granted as sought; namely :

(a)      an order of certiorari to bring up and quash the decision, and

(b)     an order remitting the matter to the Principal Magistrate, or a different magistrate than the respondent, in order to determine the applicant’s summons in accordance with law.

49. As for costs, I see no reason why the applicant should be denied his costs.  There will be an order for costs in his favour.  As for the costs of the interested party, the Bar Association, there will be an order nisi awarding costs to it, that order to be made final 30 days after the date of handing down of this judgment unless the matter is earlier set down for argument.