ATTORNEY GENERAL v. WONG YAU CHUNG

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

H E A D N O T E

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

ABSENT DEFENDANT - MAGISTRATE ESTREATING BAIL BUT REFUSING TO ISSUE WARRANT - BREACH OF S. 18A OF MAGISTRATES ORDINANCE.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 293 OF 1989

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

J U D G M E N T

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

1. The Attorney General appeals by way of case stated against a decision of Mr Lee at Shatin Magistrates Court.

2. The case as framed by the magistrate is in the following terms :-

"(a) The Respondent had been summonsed to appear before me for trial on the 31st day of January, 1989. The charge was one of careless driving. He failed to appear - both when the case was called on at 10.48 a.m., and again when it was relisted at 11.55 a.m. (He had likewise failed to appear on 21st September, 1988, and 20th September, 1988 - on which latter occasion an arrest warrant had been issued, backed for bail in the sum of $600. That warrant had been executed and the Respondent had been bailed). I directed that the bail of $600 be estreated. The prosecutor advised me that the case involved an allegation that the Respondent's car had cut from one lane to another, thereby forcing a taxi to brake in order to avoid a collision. I considered that the alleged offence was not of the most serious, and ordered that there be no further action.

(b) On the 1st day of February, an application was made to me by the Crown, pursuant to S.104, Cap. 227, to review my order of the previous day. The prosecutor submitted that a further warrant should be issued and, the case, should be tried. I, however, because I had been told earlier that this was a simple 'cutlane' case, declined to review my order. I was satisfied that the estreatment of the bail was a sufficient punishment to the Respondent in respect of such a trivial matter.

5. The question of law arising on the above statement for the opinion of the Judge, of the High Court therefore is -

'whether, on the 31st day of January, 1989, I disposed of the case according to law'."

3. The matter is governed by Section 18A of the Magistrates Ordinance, which sets out the options open to a magistrate in these circumstances The section reads:-

"18A. 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) may, upon the application of the complainant or informant, dismiss the complaint or information. (Added, 18 of 1984, s.4) (Added, 36 of 1976, s. 5. Amended, 18 of 1984, s. 4)"

4. If a magistrate decides that estreatment of bail is sufficient punishment for a particular offence, not only is he acting in breach of Section 18A, he is allowing the defendant to snub the court and possibly avoid disqualification as well.

5. The answer to the question posed is no. The appeal is allowed and the order set aside. The case is to be reheard by another magistrate.