ATTORNEY GENERAL v. JOHN LOK AND OTHERS

Case stated not conforming to Form 97 Magistrates (Forms) Rules Case stated also defective in that -

(1) In a paragraph in which the Magistrate purports to set out findings of fact, he

(a) sets out findings of law or findings of mixed law and fact

(b) sets out evidence without saying whether he accepted it, rejected it, or made no finding on it.

(2) In addition to the above paragraph he sets out a paragraph containing facts which he apparently did not find as a fact, but nevertheless took into consideration.

(3) The Magistrate said he adopted the contentions of counsel for the respondent even though they were in the alternative.

(4) The third question which the court is asked to answer is in these terms:

"Having made the findings of fact set out in paragraph 5 above and having regard to the terms of the contract and sub-contract set out in paragraph 6 above, was I entitled as a matter of law to hold ....?"

For the above reasons it is impossible to answer that question in the present form of the case stated.

Held

This court should not be required to answer hypothetical questions on facts not found by the Magistrate, nor express opinions on points of law not applied to the facts found.

Case stated should be sent back to the Magistrate for restatement and the attention of the Magistrate and the parties should be drawn to Form 97 Magistrates (Forms) Rules and the following cases:

A.G. v. Bruce Munro-Smith [1961] H.K.L.R. 209 (Full Court)

A.G. v. Leung-Chi-Kin [1974] H.K.L.R. 269 (Full Court)

A.G. v. Yau Ka Ping [1977] H.K.L.R. 76 (Court of Appeal)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 62 OF 1985'

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JUDGMENT

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1. This is an appeal by way of case stated from a Magistrate's court under the provisions of Section 105 of the Magistrates Ordinance. The respondent had been acquitted in the Magistrate's court in respect of an information alleging a breach of the duty of "the contractor responsible" for a construction site under Regulation 49(1) of the Construction Sites (Safety) Regulations. The hearing before the Magistrate took place at Western Magistrate's court on the 10th, 11th and 12th October 1983 and judgment was given on the 26th October 1983. The case stated was not signed until the 9th January 1985. 1 am told that the huge time gap between the hearing and the signing of the case stated has been caused because the parties have been involved in correspondence and it has been difficult to reach agreement on the matters to be included in the case stated. Finally the Magistrate signed the case stated in its present form.

2. It is with the deepest regret, having regard to the length of time this matter has already taken, that I have to say that the case stated is defective. This is the second time this month that I have felt compelled to make criticism of the way in which a case stated has been set out. In both the previous case and the present case, it would appear that the defective matter was inserted at the insistence of one or other of the parties and one can feel sympathy for the Magistrate when confronted with a situation of this sort, especially if the form of the case stated has been agreed by the parties.

3. This case stated is defective in a number of ways. Some of the defects are purely formal and would not, in my opinion, necessarily require the matter to be sent back to the Magistrate for amendment. Others, unfortunately are, in my opinion, more substantial and require this course to be taken.

4. The formal defect is that the case stated has not been set out in the form prescribed in Form 97 of the Magistrates (Forms) Rules made under the enabling powers contained in Section 133 of the Magistrates Ordinance.

5. It is important that the prescribed form should be adhered to, not only because it is the prescribed form, but also because in doing so there is less likelihood of errors occurring.

6. The more substantial defects are that the Magistrate has included in the facts found, matters of law or matters of mixed law and fact, (paragraph 5(4) and 5(8), and has also set out evidence (paragraph 5(9)), but not indicated whether he accepted it, rejected it, or made no finding on it. Although paragraph 5 is the paragraph which purports to set out the findings of fact, it is difficult from the case stated to ascertain what exactly were the facts found upon the matters which form the basis of this appeal.

7. Furthermore, although the case stated sets out in paragraph 5 what are said to be the findings of fact, there is another paragraph 6 which purports to set out the terms of the contracts governing the relationship between the parties to those contracts. If the Magistrate found as a fact that the contracts.

8. Were in the terms set out in paragraph 6, it is difficult to see why that was not included in paragraph 5. It may be, of course, that it was because the Magistrate did not agree that one of the documents was the principal contract and the parties to it the principal contractors or that the other contract was a sub-contract between the principal and the sub-contractor. However, if that were the situation, the terms of the contracts should have been set out in the paragraph in which he makes his findings of fact, and the interpretation which he put upon those contracts should have been set out in the paragraph in which he sets out his grounds for his decision.

9. If the case stated had followed the form prescribed it would have set out what was found proved on the part of the respondent and found as a fact in paragraph 4, what were the contentions on the part of the appellant in paragraph 5 and the Magistrate's decision and the grounds for it in paragraph 6.

10. Another defect in this case stated is in paragraph 9 which is entitled "rulings of law". This paragraph purports to show that the Magistrate held, inter alia, that the contentions of the respondent (which had been set out in paragraph 8) "had merit". He says "I adopted them". A perusal of paragraph 8 however indicates that the counsel for the respondent had argued on the basis of a number of alternative contentions.

11. If the case stated had followed the prescribed form, this error would not have occurred.

12. One of the contentions of the respondent's counsel (paragraph 8(c)) was that the principal contractor was somebody other than the respondent. It was suggested that this was so on the evidence and as a matter of fact. Although the Magistrate has in the case stated purported to accept the respondent's contentions, there is no finding of fact in his paragraph 5 which relates to this contention.

13. Of the three questions which I am required to answer on the case stated as framed at the moment, there is a defect in the form of the third question. It reads:-

"Having made the findings of fact set out in paragraph 5 above and having regard to the terms of the contract and sub-contract set out in paragraph 6 above, was I entitled as a matter of law to hold ......?"

14. It is impossible to answer a question phrased in that way for the following reasons:-

15. Counsel for the appellant, who apparently inherited this ease from one of his colleagues and tool no part in the drafting of it, asks this court to send it back to the Magistrate for correction only in respect of paragraph 5(9), so that the Magistrate can indicate what evidence he accepted or rejected or whether he made no finding. He asks this court to ignore the findings of law in paragraph 5(4) and (8) and to answer question No. 3 only on the basis of the facts set out in that paragraph.

16. Counsel for the respondent argues strongly that the matter should not be sent back to the Magistrate but that this court should make do with the case stated in its present form and attempt to answer the questions as phrased. He argues that the matters in paragraphs 5(4) and (8) are matters of mixed law and fact and that the case stated in its present form does not seek to overturn them. So far as there is evidence set out in paragraph 5(9) but no finding of fact, he asks this court to ignore the evidence.

17. I am of the view that the defects are of substance and that the matter should be sent back to the Magistrate for amendment. This court should not be required to answer hypothetical questions on facts not found by the Magistrate, nor express opinions on points of law not applied to the facts found. I am of the opinion that since the case stated will have to be sent back to the Magistrate, it should be restated to bring it in conformity with the law, and I so order.

18. In this respect, I would draw the attention of the parties and of the Magistrate to Form 97 of the Magistrates (Forms) Rules and to the following cases:

19. Leung Chi Kin's case sets out the effect of a number of English decisions and refers to the case of Bruce Munro-Smith.

20. I have myself ⁽¹⁾ recently felt compelled to emphasize the importance of bearing in mind the strictures of the Full Court in Leung Chi Kin's case as endorsed by the Court of Appeal in Yau Ka Ping's case. I do so again.

(1) In Magistracy Appeal 125/85 The Queen v. Lam Yick Kwan & 9 others in Reasons for Judgment dated 11/4/85.