THE ATTORNEY v. LAM MAN WAH

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

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

J U D G M E N T

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

Silke, V.-P.:

1. This is the judgment of the court.

2. Lam Man Wah appeared for trial before His Honour Judge Caird on a charge of wounding with intent. In the course of that trial the prosecution wished to introduce into evidence a cautioned statement. The trial judge refused to admit that into evidence and there being no other evidence which would connect the respondent with the offence, he dismissed the charge and discharged the respondent.

3. The Crown was dissatisfied with the reasons for refusing to admit the cautioned statement and therefore applied to the judge, under provisions of section 84 of the District Court Ordinance, Cap. 336, to state a case which the trial judge duly did.

4. The signed case was sent to the respondent by registered post on 12th June 1991. The father of the respondent, Mr. Lam Hing Kuen, informed the Attorney General that the respondent was then in China having been brought there on 14th April immediately after his acquittal to prevent him from consorting with bad friends. On 26th July 1991 a Notice of Hearing was sent to the respondent's father being hand delivered to him and on 1st August 1991 a further Notice of Hearing was sent to the respondent by registered post. The respondent remained in China and has not been present in this court today.

5. Mr. Cross asks us to accept service by registered post as being good service and has referred us, generally, to the provisions of section 84 of the District Court Ordinance which, in its sub-paragraph (a), states the provision of sections 106 to 109 inclusive of the Magistrates Ordinance, Cap. 227 shall apply to the preparation, amendment and setting down of any case stated. Neither in the District Court Ordinance nor in the relevant sections of the Magistrates Ordinance is there reference to service of documents in relation to a case stated by way of registered post.

6. We note however that section 115 of the Magistrates Ordinance under the heading "General Provisions as to Appeals" does provide for service of documents by post. Inter alia it states that any notice or documents required to be given or served upon any other party shall be deemed to have been duly served if dispatched by registered post addressed to a person at his last or usual place of abode. As will be clear this particular section is not referred to in the District Court Ordinance as having application to cases stated.

7. Mr. Cross seeks principally to rely on section 8 of the Interpretation and General Clauses Ordinance, Cap. 1. This, under the heading "Service by Post", reads:

"Where any Ordinance authorizes or requires any documents to be served or any notice to be given by post or by registered post, whether the expression 'serve' or 'give' or 'send' or any other expression is used, the service of notice shall be deemed to be effected by properly addressing pre-paying the postage thereon and dispatching it by post or by registered post, as the case may be, to the last known postal address of the person to be served or given notice, and, unless the contrary is proved, such service or notice shall be deemed to have been effected at the time at which the document or notice would be delivered in the ordinary course of post."

8. The endeavours of Mr. Cross to find any authority construing section 8 of Cap. 1 have been fruitless and on the face of that section we are of the view that there must be specific authorization for or a requirement that documents be served by post or registered post in an Ordinance before it can come into play. The District Court Ordinance does not contain any such authorization or requirement.

9. Additionally, these are criminal proceedings. This court has power under the provisions of section 84 to dismiss the Attorney General's appeal or to reverse the order of the judge and direct that the trial be resumed or that the accused be retried or, if it is so minded, to itself find the accused guilty, convict him and pass an appropriate sentence. Those provisions underline in our view the necessity for personal service upon a respondent for the consequences to him of allowing the Attorney General's appeal can be severe.

10. It is clear from papers before us that the boy's family, he is aged 16, desire to keep him in China and are not prepared to co-operate in having him produced in Hong Kong. Mr. Cross has asked us, should we be against him on the question of substituted service to issue a warrant of arrest for the respondent. This he submits we are empowered to do under section 84(b) of the District Court Ordinance+ though normally such application is made at the time of the case stated being filed and to a judge of the Supreme Court in chambers.

11. We think it right that in this case a warrant of arrest in the name of Lam Man Wah should issue and we so order. The appeal itself will be adjourned without date. The respondent will be liable to arrest at any time he sets foot in Hong Kong in the future and upon his attendance being secured before this court the matter will be determined. No doubt, he will be produced on arrest before either this court or a judge of this court to permit any application to be made relating to his custody.