HKSAR v. CHAN TAI SUM

DCCC 354/2022

[2022] HKDC 815

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 354 OF 2022

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RULING

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1.  The defendant is charged with one count of inciting others to take part in an unlawful assembly, contrary to Common Law and section 18 of the Public Order Ordinance, Cap. 245 and punishable under section 101I of the Criminal Procedure Ordinance, Cap. 22l (Charge 1) and 4 counts of doing an act or acts with seditious intention, contrary to section 10(1)(a) of the Crimes Ordinance, Cap. 200 (Charges 2 to 5).

2.  The learned counsel for the defendant, Mr Steven Kwan, informs this court that the defendant intends to plead guilty to all charges, but submits that the District Court has no jurisdiction to hear and determine Charges 2 to 5.

3.  Mr Kwan raised the same argument in the magistrates’ court when the prosecution applied for this case to be transferred to the District Court.  Mr Peter Law, the learned Acting Chief Magistrate, rejected his submissions and made the transfer order on 5 May 2022.

4.  Mr Kwan maintains the same objection in the District Court.  It is open to him to do so since this court must satisfy itself that it has the jurisdiction to hear and determine Charges 2 to 5.

Transfer of charges to the District Court

5.  Under sections 74 and 75(1) of the District Court Ordinance, Cap. 336, the District Court has jurisdiction to hear and determine those charges that are transferred to it by a magistrate “in accordance with the provisions of Part IV of the Magistrates Ordinance”.

6.  Part IV of the Magistrates Ordinance consists of sections 88, 89 and 90 only.  For the purpose of this ruling, it is only necessary to refer to section 88(1) of the Magistrates Ordinance which gives a magistrate the jurisdiction and power to make an order transferring the charge or complaint in respect of an indictable offence to the District Court.

7.  Section 88(1) of the Magistrates Ordinance is in the following terms:

“Notwithstanding anything contained in any other provision of this Ordinance but subject to subsection (3), whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Secretary for Justice–

(a) shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court; and

(b)    may, if the person is also accused of any offence triable summarily only, make an order transferring the charge or complaint in respect of the summary offence to the District Court.”

The prosecution submissions

8.  Mr Anthony Chau, Acting Deputy Director of Public Prosecutions leading Ms Jennifer Tsui, Acting Senior Public Prosecutor, submits that Charges 2 to 5 have been properly transferred to the District Court because:

(a)   in respect of Charge 1, the offence of inciting others to take part in an unlawful assembly is an indictable offence not included in any of the categories of offences specified in Part III of the Second Schedule; hence, the magistrate has the jurisdiction and power under, and is indeed obliged by, section 88(1)(a) of the Magistrates Ordinance to transfer it to the District Court upon the application by the Secretary for Justice; and

(b)  in respect of each of Charges 2 to 5, the offence of doing an act or acts with seditious intention (“the sedition offence”) is an offence triable summarily only, but the magistrate has the jurisdiction and power to transfer them together with Charge 1 for the transferable offence to the District Court in the exercise of his discretion under section 88(1)(b) of the Magistrates Ordinance.

The defence submissions

9.  Mr Kwan agrees that Charge 1 has been properly transferred to the District Court, but submits that the magistrate has no jurisdiction or power to order the transfer of Charges 2 to 5 because:

(a)   the sedition offence is and has always been an indictable offence, and it is not an offence triable summarily only; hence, these charges are not transferable to the District Court together with Charge 1 under section 88(1)(b) of the Magistrates Ordinance; and

(b)  although the sedition offence is an indictable offence, the fact that it is included in the 5^th category of the indictable offences specified in Part III of the Second Schedule to the Magistrates Ordinance means that the charges in respect of this offence cannot be transferred to the District Court by the magistrate due to the express exclusion stated in section 88(1)(a) of the Magistrates Ordinance.

The sedition offence

10.  The sedition offence is an offence contrary to section 10(1)(a) of the Crimes Ordinance, Cap. 200, which is in the following terms: -

“(1) Any person who–

(a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; or

(b) …

(c) …

(d) …

shall be guilty of an offence and shall be liable for a first offence to a fine at level 2 and to imprisonment for 2 years, and for a subsequent offence to imprisonment for 3 years; and any seditious publication shall be forfeited to the Crown.”

Is the sedition offence a summary offence or an indictable offence?

11.  On the question whether or not the learned Acting Chief Magistrate had the jurisdiction and power to transfer Charges 2 to 5 to the District Court, the determinative issue is whether the sedition offence is a summary offence or an indictable offence.

12.  Mr Chau submits that the starting point is to refer to section 14A of the Criminal Procedure Ordinance, Cap. 221, which provides for the classification of offences, and sets out their respective modes of trial.  Section 14A is in the following terms:

“Trial of offences

(1) Where any provision in any Ordinance creates, or results in the creation of, an offence, the offence shall be triable summarily only, unless–

(a) the offence is declared to be treason;

(b) the words “upon indictment” or “on indictment” appear; or

(c) (Repealed 50 of 1991 s. 4(1))

(d) the offence is transferred to the District Court in accordance with Part IV of the Magistrates Ordinance (Cap. 227).

(2)   Where any provision in any Ordinance creates, or results in the creation of, an offence and–

(a)   the offence is declared to be treason; or

(b)   subject to subsection (4), the words “upon indictment” or “on indictment” appear,

the offence shall be triable only upon indictment.

(3)   (Repealed 50 of 1991 s. 4(1))

(4)   Where any provision in any Ordinance creates, or results in the creation of, an offence and the offence is declared to be triable either summarily or upon indictment or to be punishable on summary conviction or on indictment, the offence shall be triable either on indictment or summarily.

(5)   Nothing in this section shall affect–

(a)   the powers conferred upon a magistrate by the Magistrates Ordinance (Cap. 227) or by any other law to try an indictable offence summarily; or

(b)   the powers conferred upon the District Court by any law to try indictable offences.”

13.   Mr Chau submits that section 10(1)(a) of the Crimes Ordinance creates, or results in the creation of, the sedition offence, and that since the words “upon indictment” or “on indictment” do not appear in this offence-creating provision, and the offence is not declared to be triable either summarily or upon indictment, or to be punishable on summary conviction or on indictment, the sedition offence must be a summary offence triable summarily only according to section 14A(1) of the Criminal Procedure Ordinance.

14.   Mr Kwan disagrees.  He submits that the sedition offence is and has always been an indictable offence.  He further argues that since the promulgation of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”), the sedition offence must be an indictable offence by virtue of Article 41(3) of the NSL.

The sedition offence before NSL

15.   As to the status of the law before the NSL came into effect, Mr Kwan submits that the prosecution should not rely upon section 14A of the Criminal Procedure Ordinance to determine the nature of the sedition offence because section 14A deals only with the modes of trial for different offences.  He argues that the term “indictable offence” has different meanings in different statutes, and that the meaning of “indictable offence” in section 88(1) of the Magistrates Ordinance is to be found only in section 2 of the Magistrates Ordinance which provides that:

“In this Ordinance, unless the context otherwise requires–

indictable offence means any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court.”

16.   Mr Kwan points out that the word “court” in this particular definition of “indictable offence” is not defined in the Magistrates Ordinance.  He therefore refers to the Interpretation and General Clauses Ordinance, Cap. 1, for the meaning of the word “court”.  Section 3 of that Ordinance provides that:

     “court means any court of the Hong Kong Special Administrative Region of competent jurisdiction.”

17.   Based on these statutory provisions, Mr Kwan submits that the sedition offence is an indictable offence within the meaning of section 2 of the Magistrates Ordinance because the defendant is currently remanded in custody pending trial.  Mr Kwan argues that the learned magistrate could not have lawfully remanded the defendant in custody unless the sedition offence is an offence for which the learned magistrate is authorized or empowered or required to commit the defendant to prison for trial before a court of competent jurisdiction which in the present case is the Court of First Instance of the High Court.

18.   Mr Kwan refers to R v Wong Chi Man[1]to support his submissions.  In that case, the Court of Appeal held that the offence of common assault was an indictable offence within the meaning of section 2 of the Magistrates Ordinance because it was a “crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court”.

19.   Mr Kwan further argues that all offences punishable by imprisonment are indictable offences as defined in section 2 of the Magistrates Ordinance because a magistrate will not have the power to remand an accused in custody if the accused is charged with an offence not punishable by imprisonment, but when the offence charged is so punishable, the provision for imprisonment empowers a magistrate to remand the accused in custody pending trial, and for this reason, the offence charged falls within the definition of “indictable offence” as stipulated in section 2 of the Magistrates Ordinance.

20.   To test the validity of Mr Kwan’s submissions, I ask Mr Kwan whether the offence of careless driving, as well as the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong (“the illegal immigrant offence”) are indictable offences.  The offence of careless driving is created by section 38 of the Road Traffic Ordinance, Cap. 374.  The illegal immigrant offence is created by section 38(1)(b) of the Immigration Ordinance, Cap. 115.  In the respective offence creating-provisions of these two offences, the words “upon indictment” or “on indictment” do not appear, and neither offence is declared to be triable either summarily or upon indictment, or to be punishable on summary conviction or on indictment.

21.   Mr Kwan submits that careless driving and the illegal immigrant offence are both indictable offences within the meaning of section 2 of the Magistrates Ordinance.  However, his submissions are contrary to authorities and cannot be accepted.

22.   A person convicted of careless driving is liable to be fined HK$5,000 and sentenced to 6 months’ imprisonment.  In Attorney General v Tong Yiu Pui[2], it was held that careless driving was a summary offence, and that if the complaint was not made or the information was not laid before a magistrate for this offence within 6 months from the time when the matter of such complaint or information arose, the magistrate would have no jurisdiction to try this charge according to section 26 of the Magistrates Ordinance. 

23.   Section 26 of the Magistrates Ordinance provides that:

“In any case of an offence, other than an indictable offence, where no time is limited by any enactment for making any complaint or laying any information in respect of such offence, such complaint shall be made or such information laid within 6 months from the time when the matter of such complaint or information respectively arose.”

(italics supplied for emphasis)

24.   When the logic of Mr Kwan’s submissions is applied to this scenario, the term “indictable offence” in section 26 of the Magistrates Ordinance will have the same meaning ascribed to it by section 2 of the same Ordinance, and that since careless driving is an offence punishable by 6 months’ imprisonment, it must be an indictable offence so defined in the Magistrates Ordinance, and the time limit stipulated in section 26 will not apply to it.  However, this was not the ruling of the court in Tong Yiu Pui, and this ruling has been followed consistently in subsequent cases: Cheung Kwok-cheung v R[3] and Syed Ahmad Noh v R[4].

25.   In his further written submissions filed after the oral hearing, Mr Kwan argues that since the illegal immigrant offence is punishable by imprisonment up to 3 years and a magistrate may lawfully commit the accused to prison for trial, it is an indictable offence as defined in section 2 of the Magistrates Ordinance.  He therefore submits that the charge for this offence can be transferred by a magistrate to the District Court under section 88(1)(a) of the Magistrates Ordinance since it is an indictable offence not included in Part III of the Second Schedule to the Ordinance.

26.   Mr Kwan refers to the decision of the Court of Appeal in HKSAR v Lung Po Chak[5] in discharge of his duties towards the court even though this decision is against his submissions.  In this case, the appellant pleaded guilty in the District Court to aiding and abetting an attempt to land in Hong Kong without permission of an immigration officer, contrary to inter alia section 38(1)(a) of the Immigration Ordinance, and was sentenced to imprisonment for 3 years and 4 months.  At the suggestion of the prosecution, he appealed against his conviction.  His appeal was allowed on the ground that the magistrate had no jurisdiction to transfer the charge to the District Court because the substantive offence of landing in Hong Kong without permission was triable summarily only, and so was an attempt to commit this offence.  The same rationale must also apply to the illegal immigrant offence contrary to section 38(1)(b) of the same Ordinance. 

27.   Mr Kwan seeks to argue that the decision of Lung Po Chak as made per incuriam because the attention of the Court of Appeal had not been drawn to the definition of indictable offence in section 2 of the Magistrates Ordinance, and that the parties had agreed that the appeal had to be allowed because the sentence had exceeded the statutory maximum of 3 years’ imprisonment. 

28.   While it is true that the sentence in Lung Po Chak was a nullity, the fact that the Court of Appeal did not re-sentence the appellant itself but remitted the charge to the magistrates’ court for hearing shows clearly that the appeal was allowed on the jurisdiction ground.  Furthermore, although the Court of Appeal had not referred to the definition of indictable offence in section 2 of the Magistrates Ordinance in its judgment, it is presumptuous to say that the Court of Appeal was unaware of this definition when the issue under consideration was precisely whether the offence in question was an indictable or a summary offence.  The Court of Appeal might simply find this definition totally irrelevant to the issue under consideration.  In HKSAR v Oi San Kok Lo Oi Ho[6], the Court of Appeal stated unequivocally that the illegal immigrant offence was a summary offence.

29.   Mr Kwan submits that the prosecution should not refer to section 14A of the Criminal Procedure Ordinance to construe the term “indictable offence” in section 88(1)(a) of the Magistrates Ordinance.  He argues that reference should only be made to section 2 of the Magistrates Ordinance for the meaning of this term. 

30.   In my judgment, the definition of “indictable offence” in section 2 of the Magistrates Ordinance is unhelpful because it is a circular definition on the basis of the following analysis.

31.   Since an indictable offence, according to the definition in section 2 of the Magistrates Ordinance, is any crime for which a magistrate is authorized or empowered or required to commit an accused person to prison for trial before court, it follows that if there is any provision in the Magistrates Ordinance that gives a magistrate the authority or power to commit an accused person to custody just because he is dealing with that particular crime or offence (and not because of any other reasons), then that crime or offence is an indictable offence.

32.   Section 72 of the Magistrates Ordinance is such a statutory provision.  It is in Part III of the Magistrates Ordinance under the title “Indictable Offences’.  Section 72(1) provides:

“In every case where a complaint is made or an information laid before a magistrate alleging the commission of any indictable offence then, if the accused is not then in custody, it shall be lawful for the magistrate to issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law; but in any case it shall be lawful for the magistrate to whom the complaint is made or before whom the information is laid, if he so thinks fit, instead of issuing his warrant in the first instance to apprehend the accused, to issue his summons directed to the accused requiring him to appear before a magistrate at a time and place to be therein mentioned; and if, after being served with the summons in manner hereinafter mentioned, he fails to appear at such time and place in obedience to such summons, then and in every such case any magistrate may issue his warrant to apprehend the accused and to cause him to be brought before a magistrate to answer to the complaint or information and to be further dealt with according to law.

Provided that a warrant shall not be issued in the first instance unless the complaint or information is supported by evidence on oath.”

(italics supplied for emphasis)

33.   It is clear from section 72(1) that when a complaint is made or an information is laid before a magistrate alleging that the accused has committed an indictable offence, and if the accused is not yet in custody at that point of time, the first step to be taken by the magistrate is to decide whether or not he should issue a warrant in the first instance to arrest the accused and bring the accused before a magistrate to answer to the complaint or information, and to be further dealt with according to law.  It is only when the magistrate thinks that it is not necessary to issue a warrant of arrest, he may then issue a summons to the accused directing him to appear before a magistrate for the same purposes.  It is important to note that issuing a warrant of arrest in the first instance and issuing a summons are not alternatives of equal standing.  It is because the magistrate must consider issuing a warrant of arrest first, and it is only when he thinks that it is not necessary to do so, he will then issue a summons directing the accused to appear before a magistrate.  This is the effect of the words “if he so thinks fit, instead of issuing his warrant in the first instance to apprehend the accused, to issue his summons directed to the accused …” in section 72(1).

34.   In practice, it is rare for a magistrate to issue a warrant in the first instance to arrest an accused alleged to have committed an indictable offence because it is most likely that the accused has already been arrested by the police or other law enforcement authority (“the arresting agency”) before a complaint is made or an information is laid for an indictable offence before a magistrate.  After the arrest, the arresting agency will usually charge the accused.  The accused will then be brought before a magistrate if he remains in the custody of the arresting agency, or he is released on bail by the arresting agency upon his undertaking to surrender to custody and appear before a magistrate at the time and place appointed.  When the accused is brought or appears before a magistrate for his first appearance in court, the charge sheet will be submitted to the magistrates’ court, and the information is thereby laid before a magistrate.  Charge 2 of the Magistrates Ordinance provides that information includes a charge.  In this way, the magistrate is released from the requirement laid down by section 72(1) to issue a warrant of arrest in the first instance or to issue a summons to bring the accused before court.  It is however important to bear in mind that the nature of the offence involved in the complaint or information is still the same, i.e. the accused is alleged to have committed an indictable offence.

35.   When the accused is brought or appears before a magistrate in answer to the complaint or the information for an indictable offence, whether as a result of the execution of the warrant of arrest or in response to the summons issued by a magistrate under section 72(1), or as a result of the prior arrest by the arresting agency, the committal proceedings starts at the very first moment when the accused appears in the magistrates’ court: Attorney General v P. H. O’Donnell [7].

36.   P. H. O’Donnell was decided on 30 January 1984 shortly after the Criminal Procedure (Preliminary Proceedings on an Indictable Offence) Ordinance 1983 came into effect on 1 January 1984.  That Ordinance amended the Magistrates Ordinance to eliminate the need to hold a preliminary enquiry unless the accused required such an enquiry.  It also amended the then section 79 of the Magistrates Ordinance to the current form of section 79.  Section 79(1) now reads as follows:

“If, in the course of committal proceedings, it becomes necessary or desirable in the opinion of the magistrate–

(a)   to defer any stage of those proceedings; or

(b)   in the event of a preliminary inquiry, to defer the examination or further examination of the witnesses for any time,

the magistrate before whom the accused appears or is brought may from time to time by his warrant remand the accused to a prison or, some other place of security, for such time as the magistrate may think reasonable, not exceeding 8 clear days, unless the accused and the prosecutor consent to a longer remand; or, if the remand is for a time not exceeding 3 clear days, it shall be lawful ….

Provided that–

(a)   …

(b)   instead of detaining the accused in custody during the period for which he is so remanded, a magistrate before whom the accused so appears or is brought as aforesaid may admit him to bail.”

(italics supplied for emphasis)

37.   Before the amendment, section 79(1) began with the words “If, on the hearing of an indictable offence, …”, and it was changed by the amendment to read “If, in the course of committal proceedings, …”.   Up to today, section 79(1) remains in the same form.

38.   In P. H. O’Donnell, Barnes J. explained the nature of committal proceedings and the effect of the amendment.  In addition to section 79(1), Barnes J. also referred to section 71A which provided that committal proceedings meant proceedings in Part III of the Magistrates Ordinance for the committal of an accused, and to section 80A(1) which required a magistrate to appoint a date for the continuation of the committal proceedings (i.e. the Return Day).  Barnes J. then explained the nature of committal proceedings in paragraph 12 of the judgment:

“Originally, committal proceedings involved no preliminary examination at all. They were committal proceedings because generally all that a justice did after having had a suspect arrested and brought before him was to order his committal to prison until trial. Later, with the increase in the range of “bailable” offences and legislative concern over the ease with which justices were granting bail, a statutory procedure to govern the granting of bail was introduced into the justice’s committal proceedings.  This procedure took the form of an inquisitorial preliminary examination which proved so effective in building up a case against the prisoner that it was extended to committal proceedings in respect of “non-bailable” offences as well.  The essential feature of the committal proceedings, however, was not the preliminary examination, but ensuring that the accused would appear at his trial.  The substitution in the 19^th century of a judicial in place of an inquisitorial preliminary examination was a civilized reform in the procedure in that it provided for an earlier discharge of a prisoner where the evidence did not warrant his being put on trial.  That change in the nature of the preliminary examination changed the underlying purpose of the committal proceedings only to the extent that whereas originally the aim was to ensure that everyone charged with an indictable offence would appear at his trial in a higher court, the new aim became merely to ensure the appearance of those charged against whom the evidence was sufficient to warrant their being so put on trial. …”

(Italics supplied for emphasis).

39.   Barnes J. then explained in paragraph 14 of the judgment the effect caused by the amendment to Part III of the Magistrates Ordinance:

“Although the new Ordinance has amended Part III extensively the effect can be shortly stated as the introduction of a pre-16^th century peremptory type committal procedure adapted so as to accord with modern ideas of criminal justice (by, e.g. revealing to the accused the whole of the prosecution case), while retaining as an alternative at the election of an accused the modern judicial form of preliminary examination bearing the new label of “preliminary inquiry”.  But the underlying purpose in bringing before a magistrate a person accused of the commission of an indictable offence remains, namely, so that, unless admitted to bail, he may be committed to prison until delivery by due course of law.  The committal proceedings thus begun may be halted by the entering of a nolle prosequi by the Attorney General (s.15), stayed by an order of transfer (s.89), merged with Part II proceedings (s.93) or continued until terminated by either a committal order (ss.80C, 81B, 85(2)) or an order discharging the accused (s.85(1)).  Consequently, in my view, the amendments to section 79 have not created any doubt about the extent of a magistrate’s power to remand an accused under Part III.”

(Italics supplied for emphasis).

40.   Barnes J. then concluded, in paragraph 18 of the judgment, the following:

     “The provisions as amended can, in my view, be sensibly understood when read in the context of the inherent nature of the proceedings.  Read that way the clear meaning of section 80A is that committal proceedings begin as soon as an accused appears or is brought before a magistrate upon an allegation of the commission of an offence in respect of which a magistrate is authorized, empowered or required to commit him ‘to prison until delivery by due course of law.’ ”

41.   When all these sections are read together, it is clear that when an indictable offence is being processed in the magistrates’ court, starting from the making of a complaint or laying of an information alleging that an accused has committed an indictable offence before a magistrate when the accused is not even in custody, up to the conclusion of the committal proceedings (by committing the accused to the Court of First Instance for trial or sentence, by transferring the charge to the District Court, or by trying the charge summarily in the magistrates’ court, or by discharging the accused), a magistrate is under a positive duty, imposed by the sheer fact that he is dealing with the criminal proceedings in respect of an indictable offence, to consider at every stage of the proceedings before or after the accused is taken into custody (irrespective of whether the accused is released on bail after arrest), whether or not he should commit the accused to prison for trial before court.

42.   A comparison can be made with the procedure in respect of summary offences stipulated in Part II of the Magistrates Ordinance.

43.   Prosecution of summary offences in the magistrates’ court may be commenced by making a complaint or laying an information before a magistrate or an officer of a magistrate’s court who is authorized in writing for that purpose by a magistrate under section 8 of the Magistrates Ordinance.  It is not necessary to set out section 8 in this Ruling.  Suffice it to say that when a complaint is made or an information is laid for a summary offence before a magistrate, section 8 does not require the magistrate to consider whether he should issue a warrant in the first instance to arrest the accused, nor is there any requirement that a magistrate will issue a summons to the accused only when he thinks that it is not necessary to issue a warrant in the first instance to arrest the accused.  It is therefore readily apparent that the procedure set out in section 8 in respect of summary offences are different from the procedure set out in section 72 in respect of indictable offences.

44.   In respect of certain summary offences, prosecution may also be commenced by a public officer or body corporate authorized to prosecute the relevant offences by serving on the accused a notice in the prescribed forms pursuant to the notice of prosecution procedure under section 7D, or pursuant to the notice to appear before a magistrate procedure under section 8A of the Magistrates Ordinance.  A magistrate is not involved at all when the prosecution commences.

45.   It is noted that, even in respect of summary offences, a magistrate before whom a complaint is made or an information is laid has the power to issue a warrant in the first instance to arrest the accused under section 9 of the Magistrates Ordinance if the complaint or information is substantiated by oath.  Likewise, when adjourning the hearing of a complaint or information for a summary offence, the magistrate may admit the defendant to bail or commit him to prison or some other place of security or to such other custody as the magistrate may think fit under section 20(3) of the Magistrates Ordinance.  However, the magistrate is not required by the mere fact that he is dealing with the offence before him to consider exercising any such power.  It is therefore not unusual to find an accused charged with a summary offence (such as careless driving) who has never been arrested by the police, and is never put on bail either by the police or by a magistrate to stand for his trial. 

46.   In other words, within the Magistrates Ordinance itself, the distinction between a summary offence and an indictable offence does not lie in the power of a magistrate to issue a warrant in the first instance to arrest the accused, or in his power to remand the accused in custody pending trial.  A magistrate possesses these powers in both classes of offences.  The distinction also does not lie in whether or not the offence in question is punishable by a term of imprisonment.  For instance, the illegal immigrant offence is a summary offence punishable by a term of imprisonment up to 3 years, and the offence of failing to surrender to custody contrary to section 9L of the Criminal Procedure Ordinance is an indictable offence even though the maximum sentence on conviction upon indictment is only 12 months’ imprisonment.

47.   On the other hand, while prosecution in respect of both an indictable offence and a summary offence may similarly be commenced by making a complaint or laying an information before a magistrate alleging the commission of the offence in question, the true distinction between them lies in the involvement of a magistrate in the procedure to secure the attendance of the accused before court in answer to the complaint or information, and for the ensuing trial.  Firstly, under section 72(1), a magistrate has to consider issuing a warrant in the first instance to apprehend the accused if he is not yet in custody at the time when the complaint is made or the information is laid in respect of an indictable offence, and it is only when the magistrate thinks it is not necessary to issue a warrant, he will then issue a summons to the accused directing the accused to appear before a magistrate at the time and place appointed.  Secondly, when the accused is brought or appears before a magistrate in answer to the complaint or information for an indictable offence, because of sections 79 and 80A of the Magistrates Ordinance, committal proceedings begins once the accused appears before a magistrate, and during the whole course of the committal proceedings, whenever there is a need to adjourn the proceedings, the magistrate has to consider again whether or not he should remand the accused to a prison, or some place of security, during the adjournment to ensure the presence of the accused in court, even though he may also release the accused on bail.  These obligations fall upon a magistrate just because the complaint or information is in respect of an indictable offence, but there are no such obligations on a magistrate if a summary offence is involved.

48.   In the case of Wong Chi Man cited by Mr Kwan, when the Court of Appeal held that common assault was an indictable offence within the meaning of section 2 of the Magistrates Ordinance because it was a “crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court”, it gave the reason as follows:

  “That this is so derives from the terms of several statutory provisions including s.72 of the same Ordinance …”[8]

When the Court of Appeal referred to “the terms of several statutory provisions including s. 72”, it was clearly referring to the provisions in Part III of the Magistrates Ordinance including section 79.

49.   It is therefore clear that sections 72 and 79 of the Magistrates Ordinance authorize or empower or require a magistrate to commit the accused to prison for trial before the court upon a complaint or an information alleging the commission of any indictable offence by the accused.  However, none of these provisions defines what an indictable offence is.  Mr Kwan argues that reference can only be made to section 2 of the Magistrates Ordinance for the definition of indictable offence. However, section 2 merely says that an indictable offence means “any crime or offence for which a magistrate is authorized or empowered or required to commit the accused person to prison for trial before the court”, and the authority or power of a magistrate in this regard is derived from sections 72 and 79 of the Magistrates Ordinance, but these provisions will give a magistrate such authority or power only when he is dealing with a complaint or an information in respect of an indictable offence, which is however not defined in sections 72 or 79 or anywhere else in Part III of the Magistrates Ordinance.  It is therefore crystal clear that the definition of indictable offence in section 2 of the Magistrates Ordinance is a circular definition that gives no clue on what an indictable offence really means.  In the case of Oi San Kok Lo Oi Ho, Stuart-Moore VP, described the definition of indictable offence in section 2 of the Magistrates Ordinance to be a “somewhat unhelpful definition”[9].

50.   It is therefore clear that the meaning of indictable offence in section 88(1)(a) of the Magistrates Ordinance has to be ascertained from a source outside the Magistrates Ordinance.  Mr Chau submits that the starting point is to consider section 14A of the Criminal Procedure Ordinance which provides for the classification of offences and the respective mode of trial for each class of offences. 

51.   Mr Kwan disagrees with Mr Chau and submits that it is not useful and potentially misleading to refer to section 14A of the Criminal Procedure Ordinance.  Mr Kwan argues that section 14A only provides for modes of trial of criminal offences, but it does not govern the nature of the offences.  However, the submissions of Mr Kwan are not supported by any authority, but in fact contradicted by his own authorities.

52.   In Wong Chi Man cited by Mr Kwan, the approach adopted by the Court of Appeal in determining whether a common assault was an indictable offence was exactly the approach submitted by Mr Chau.  At the time when Wong Chi Man was decided, section 40 of the Offences Against the Person Ordinance provided that “any person who is convicted of a common assault shall be guilty of a misdemeanor triable summarily, and shall be liable to imprisonment for one year”[10]. The Court of Appeal held that this provision should be construed in light of the then section 89 of the Interpretation and General Clauses Ordinance, Cap. 1. It held that since a common assault was declared to be a “misdemeanor triable summarily”, it could not be a summary offence by virtue of the then section 89(1), but it was an indictable offence since an offence declared to be a misdemeanor triable summarily was an offence triable either on indictment or summarily by virtue of the then section 89(3). 

53.   The then section 89 was later amended by section 4(1) of the Administration of Justice (Felonies and Misdemeanors) Ordinance (Ord. No. 50 of 1991), whereby references to “treason, felony or misdemeanor” in section 89, as well as sections 89(1)(c) and 89(3) were repealed.  This amended section 89 of Cap. 1 was later repealed and re-enacted as the present section 14A in the Criminal Procedure Ordinance by section 27 of the Interpretation and General Clauses (Amendment) (No. 2) Ordinance 1993 (Ord. No. 89 of 1993).  Despite the said repeal and re-enactment, there is no change of substance to the legislation, and the present section 14A of the Criminal Procedure Ordinance is used in the same way for classification of offences: see Oi San Kok Lo Oi Ho[11]. In Lung Po Chak cited by Mr Kwan, the Court of Appeal also relied upon section 14A of the Criminal Procedure Ordinance to hold that the illegal immigrant offence was a summary offence.

54.   In Chiang Lily v Secretary For Justice[12], Ma CJHC (as he then was) set out the statutory scheme of criminal offences in Hong Kong in his judgment as follows:

“16.  Criminal offences in Hong Kong are divided into summary offences and indictable offences:

(1)   Summary offences are criminal offences other than treason, or where the words “upon indictment” or “[on] indictment” appear in a relevant statute, or where an offence has been transferred to the District Court for trial under Part IV of the Magistrates Ordinance (see s 14A(1) of the Criminal Procedure Ordinance (Cap 221).

(2)   An indictable offence is an offence other than a summary one.  It means a crime or offence for which a magistrate is authorized or empowered or required to commit an accused for trial before the District Court or the Court of First Instance (see s 2 of the Magistrates Ordinance).

 17.     Summary offences may subject to limited circumstances only be tried in the Magistrates Court.  Many indictable offences, on the other hand, may be tried either summarily, or in the District Court or the Court of First Instance.  Where an offence is stated in an Ordinance to be triable either summarily or on indictment (or punishable on summary conviction or on indictment), then it can be tried either summarily (in the Magistrates Court) or on indictment (in the District Court or the Court of First Instance): s 14A(4) of the Criminal Procedure Ordinance.  Where the offence is treason, or where the words “upon indictment” or “on indictment” appear and it is not further stated that the offence can be tried or is punishable either summarily or on indictment, then the offence can only be tried on indictment: s 14(2) of the Criminal Procedure Ordinance.”

(Italics in the original text).

55.   It is readily apparent that Ma CJHC (as he then was) was using section 14A of the Criminal Procedure Ordinance, and section 14A alone, as the tool to identify whether any particular offence is a summary offence or an indictable offence.

56.   In New Chuan Kong Investment Co Ltd v Securities & Futures Commission[13], the Court of Final Appeal also relied upon section 14A of the Criminal Procedure Ordinance to decide whether the offence under consideration was an indictable or a summary offence.  Suffice for the present purpose to refer to what the Court of Final Appeal had said of what it noted from section 14A of the Criminal Procedure Ordinance:

“Two things are to be noted from this.  The first is that there are only two types of offences, namely those which are summary and those which are indictable.  The category of the offence is established upon its commission.  Secondly, while summary offences can only be tried in a summary way, indictable offences may be tried either summarily or upon indictment.  Indictable offences are sometimes tried summarily when, for instance, the gravity of the acts does not call for the process of, or heavier penalty that may be imposed on, indictment.  It has been clearly and rightly established that the manner of trial does not determine whether the offence is a summary one or one which is indictable.”[14]

57.   In light of these authorities from all levels of courts, it is beyond doubt that whether any particular offence is an indictable offence or a summary offence is to be determined according to section 14A of the Criminal Procedure Ordinance.  Once the offence is classified, section 14A will also stipulate the appropriate mode of trial for that offence.  

58.   Hence, I agree with Mr Chau that whether the sedition offence is an indictable offence or a summary offence is to be decided in accordance with section 14A of the Criminal Procedure Ordinance.

59.   Section 10(1)(a) of the Crimes Ordinance creates or results in the creation of the sedition offence.  This offence is not declared to be treason.  The words “upon indictment” or “on indictment” do not appear in this offence-creating provision. It is not declared to be triable either summarily or upon indictment.  Nor is it declared to be punishable on summary conviction or on indictment.  Hence, in accordance with section 14A of the Criminal Procedure Ordinance, the sedition offence must be a summary offence and is triable summarily only.

60.   In his further or alternative submissions, Mr Kwan points out that “any offence against Part I or Part II of the Crimes Ordinance” forms the 5^th category of offences specified in Part III of the Second Schedule of the Magistrates Ordinance, and that since the sedition offence is an offence against Part II of the Crimes Ordinance, it is therefore an offence included in Part III of the Second Schedule.  On this basis, Mr Kwan argues that since section 88(1)(a) of the Magistrates Ordinance excludes any of the offences specified in Part III of the Second Schedule from being transferred to the District Court, it must have presupposed that all the offences included in Part III of the Second Schedule, including the sedition offence, are indictable offences.  Mr Kwan asks rhetorically, if the sedition offence is not an indictable offence, what is the point of including it in Part III of the Second Schedule so as to exclude it from being transferred to the District Court when it is not transferrable to the District Court under section 88(1)(a) of the Magistrates Ordinance in the first place?  Mr Kwan argues that the Legislature will not do anything that serves no useful purpose or has no utility.  Mr Kwan further argues that the fact that all other categories of offences specified in Part III of the Second Schedule are indictable offences re-affirms that its 5^th category of offences, i.e. any offence against Part I or Part II of the Crimes Ordinance including the sedition offence are also indictable offences.

61.   Mr Chau argues on the other hand that Part III of the Second Schedule of the Magistrates Ordinance has to be read together with section 88(1)(a) of the same Ordinance. Mr Chau submits that if the offence to be transferred is not an indictable offence, it is not necessary to consider whether or not it is an offence specified in Part III of the Second Schedule.  I agree with Mr Chau.  It is self-evident from the terms of section 88(1)(a) that the first issue to decide is whether or not the offence to be transferred is an indictable offence, and if so, whether the offence is included in Part III of the Second Schedule, and it is not transferrable to the District Court if the answer is yes, and transferrable if the answer is no under section 88(1)(a).  It is conceptually wrong to refer first of all to Part III of the Second Schedule and deduce backward whether or not the offence to be transferred is an indictable offence.  As Mr Chau has rightly pointed out, doing so is just like putting the cart before the horse.

62.   Mr Chau further argues that since the offences included in Part III of the Second Schedule are indictable offences, the 5^th category of offences specified therein cannot be taken on its face value, and it can only refer to any indictable offence against Part I or Part II of the Crimes Ordinance.  On the other hand, Mr Kwan argues that the sedition offence has been included since the 5^th category of offences is described to be any offences against Part I or Part II of the Crimes Ordinance, and the Legislature will not do anything that is futile, pointless and otiose.

63.   In my view, the function of Part III of the Second Schedule is simply to limit the scope of indictable offences that may come before the District Court, and so long as this function is served, the Legislature has by choice or through sheer omission failed to pay attention to the proper drafting of Part III of the Second Schedule.  I come to this view because of the following observation.

64.   In Part III of the Second Schedule, the 2^nd category of offences specified therein is “any offence which is punishable with imprisonment for life” with a number of exceptions.  On the face of this description, it appears to be that all offences listed therein are punishable with imprisonment for life, but the Legislature permits some of them to be transferred to the District Court.  One of the exceptions listed in the 2^nd category of offences is “an offence against section 37C, 37D, 37O or 37P of the Immigration Ordinance”. However, the maximum imprisonment term to be imposed on conviction on indictment for each of the section 37C offence and the section 37D offence is imprisonment for 14 years only.  They are not offences punishable by life imprisonment.  In addition, the Immigration Ordinance does not contain sections 37O and 37P now.  Their existence in Part III of the Second Schedule is clearly otiose.  Another exception is “an offence against Part VIII of the Crimes Ordinance”, which has the title of “Criminal Damage to Property”.  Section 63 of the Crimes Ordinance stipulates punishment for the offences against that Part, i.e. a person guilty of arson under section 60 or of an offence under 60(2) (whether arson or not) is liable on conviction upon indictment to imprisonment for life, but a person guilty of any other offence under Part VIII is liable on conviction upon indictment to 14 years’ imprisonment only.   One further exception is an offence against section 17 of the Firearms and Ammunition Ordinance.  There are two offences in section 17.  The one under section 17(1) is punishable by imprisonment for life, but the one under section 17(2) is imprisonment for 14 years only on conviction on indictment.  It is therefore clear that 3 of the exceptions listed in the 2^nd category of offences specified in Part III of the Second Schedule are not offences punishable with imprisonment for life, and yet they are grouped under this heading.  Nevertheless, despite the mistake or imprecision in description, there is no adverse effect on the transfer of charges within these exceptions to the District Court.  For those offences that are not punishable by imprisonment for life, their transferability to the District Court is not affected.  For those offences that no longer exist, there will be no charge to be transferred in any event, and the fact that they are not deleted from Part III of the Second Schedule will not result in charges of that kind coming before the District Court though their existence in the Schedule serves no purpose at all.

65.   As far as the 5^th category of offences specified in Part III of the Second Schedule is concerned, its description is “any offence against Part I or Part II of the Crimes Ordinance”.  The purpose is to exclude indictable offences against these two Parts of the Crimes Ordinance to come before the District Court, and this purpose can still be achieved even though it does not make it clear that one of the 9 offences against these two Parts of the Crimes Ordinance is in fact a summary offence.  In addition, the sedition offence being a summary offence is not eligible for transfer to the District Court under section 88(1)(a) in any event; and when it becomes transferrable with the aid of an indictable offence under section 88(1)(b), Part III of the Second Schedule will not come into play at all.  Hence, literary speaking, the description “any offence against Part I or Part II of the Crimes Ordinance” is correct in the sense that in practice, no offence against these two Parts of the Crimes Ordinance can be transferred to the District Court under section 88(1)(a) of the Magistrates Ordinance, though the proper description of the 5^th category of offences should have been “any indictable offence against Part I or Part II of the Crimes Ordinance”.  Since this mistake or imprecise in description of this kind has occurred in respect of the 2^nd category of offences in Part III of the Second Schedule, similar mistake or imprecise in description can also occur in respect of the 5^th category of offences.

66.   In my judgment, Part III of the Second Schedule of the Magistrates Ordinance merely serves the purpose of limiting the scope of indictable offences that may come before the District Court.  In its existing form, it serves its purpose, but some of the descriptions of the offences there are mistaken or imprecise.  Hence, it can be misleading and wrong to rely on Part III of the Second Schedule to deduce backward and assert that all offences included there are indictable offences. On the contrary, the submissions of Mr Chau that the 5^th category of offences specified in Part III of the Second Schedule, despite its description in the current form, should be read to mean “any indictable offence against Part I or Part II of the Crimes Ordinance” is cogent and persuasive.  I accept the submissions of Mr Chau.

67.   Mr Kwan also refers to sections 91 and 92 of the Magistrates Ordinance and argues that the sedition offence cannot be a summary offence because no magistrate has jurisdiction to hear and determine a charge in respect of this offence.  He submits that a special magistrate has no jurisdiction to hear any indictable offence in the Second Schedule of the Magistrates Ordinance, and a permanent magistrate has no jurisdiction to hear any indictable offence in Part I of the Second Schedule, which includes “all offence against Part I or Part II of the Crimes Ordinance”.  In my judgment, sections 91 and 92 of the Magistrates Ordinance only limit the jurisdiction of a special magistrate and a permanent magistrate to try indictable offences summarily, and the offences included in the Second Schedule or Part I of the Second Schedule (as the case may be) must be interpreted to mean indictable offences of the description specified in the Schedule.  In other words, “any offence against Part I or Part II of the Crimes Ordinance” as specified in Part I of the Second Schedule must be taken to mean “any indictable offence against Part I or Part II of the Crimes Ordinance”.  A permanent magistrate will have the jurisdiction to hear and determine the sedition offence as it is a summary offence, and his jurisdiction to do so is not derived from section 93 of the Magistrates Ordinance.  A special magistrate will have no jurisdiction because the sedition offence attracts a possible sentence beyond his sentencing power.

68.   Mr Kwan also argues that the sedition offence must also be an indictable offence because all other offences against Part I or Part II of the Crimes Ordinance are indictable offences.  Putting aside the sedition offence for the time being, there are two offences against Part I of the Crimes Ordinance including treason (section 2) and treasonable offences (section 3), and 6 offences against Part II of the Crimes Ordinance, including assaults on the Queen (section 5), incitement to mutiny (section 6), incitement to disaffection (section 7), unlawful oaths to commit capital offences (section 15), other unlawful oaths to commit offence (section 16), and unlawful drilling (section 18).  In each of the statutory provisions creating or resulting in the creation of these offences, the words “on indictment” or “upon indictment” appear.  Hence, there is no doubt whatsoever that they are indictable offences according to the classification under section 14A of the Criminal Procedure Ordinance.  On the other hand, the sedition offence is the only offence against the whole of Part I and Part II of the Crimes Ordinance that has an offence-creating provision which does not contain any words to indicate that it is an indictable offence according to section 14A of the Criminal Procedure Ordinance (see paragraph 59 above).  In my judgment, the fact that the sedition offence is treated differently in this way by the Legislature from the remaining 8 other offences against Part I and Part II of the Crimes Ordinance indicates clearly that the sedition offence is intended by the Legislature to be a summary offence.

69.   For the reasons set out above, none of the submissions of Mr Kwan persuades me that the sedition offence is an indictable offence.  On the contrary, in my judgment, according to section 14A of the Criminal Procedure Ordinance which is the only proper statutory provision to be used for classification of offences in Hong Kong, the sedition offence is a summary offence that is triable summarily only, subject to the NSL issue raised by Mr Kwan.

The sedition offence after NSL

70.   Mr Kwan argues that even if the sedition offence is triable summarily only before the promulgation of the NSL, it has become an indictable offence after the promulgation of the NSL.  Mr Kwan points out that Article 41(3) of the NSL has provided that “cases concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment”, and that the Court of Final Appeal has decided in the case of HKSAR v Ng Hau Yi Sidney[15] that an offence under section 10 of the Crimes Ordinance was an offence endangering national security.  Mr. Kwan therefore argues that since the sedition offence is an offence endangering national security, it falls within the ambit of Article 41(3) of the NSL and “has been declared to be indictable by virtue of Article 41(3) of the NSL”.  Mr Kwan argues that the prosecution cannot blow hot and cold by applying the NSL to the offence when it comes to the criteria for granting bail to the defendant, but disregarding NSL when it comes to the nature of the offence.  Mr Kwan submit that since the sedition offence has become an indictable offence, a charge in respect of this offence cannot be transferred by a magistrate to the District Court pursuant to section 88(1)(a) of the Magistrates Ordinance because Part III of the Second Schedule expressly excludes the transfer of any offence against Part I or Part II of the Crimes Ordinance to the District Court.

71.   Mr Chau argues that the category of the offence is established on its commission, and the mode of trial does not determine whether an offence is an indictable or a summary offence: New Chuan Kong Investment Co Ltd v Securities & Futures Commission. 

72.   Both parties have made submissions on the ruling made by His Honour Judge Stanley Chan in the case of HKSAR v Tam Tak Chi[16] in which it was held that the sedition offence was an indictable offence because of Article 41(3) of the NSL, but the District Court still had jurisdiction to hear and determine that charge for the reasons given by the learned judge. It is not necessary for me to refer to the ruling of the learned judge in detail since both parties agree that the decision of the learned judge is not binding on me, and I have the ultimate responsibility to decide the issue independently in light of the submissions made.

73.   In my judgment, if the submissions of Mr Kwan were correct, it would have meant that the NSL were in effect amending the offence-creating provision relating to the sedition offence and changed it from a summary offence into an indictable offence. However, the NSL could not have such an intention because Article 23 of the Basic Law has clearly provided that the HKSAR “shall enact laws on its own” to prohibit any act of sedition.  I am of the view that the NSL does not seek to usurp the function to legislate on the offence of sedition, and that if it had intended to do so, it would have said so explicitly, but it has not.

74.   In HKSAR v Ng Hau Yi Sidney[17], the Court of Final Appeal explained the purpose of promulgating the NSL as follows:

“Viewed purposively, the intent of the NSL is plainly for national security to be safeguarded by the complementary application of the laws which it creates together with the existing laws of the HKSAR, such as those contained in Part II of the Crimes Ordinance.”

75.   In HKSAR v Lai Chee Ying[18], the Court of Final Appeal also said that the legislative intention is for the NSL to operate in tandem with the laws of the HKSAR, seeking convergence, compatibility and complementarity with local laws.

76.   In my judgment, the NSL has not sought to change the local law relating to the sedition offence, but leaves the local laws as it is, and the NSL and the local laws will act hand in hand to protect national security.  In other words, if the sedition offence is a summary offence according to its offence-creating provision, and it clearly is as I have so held, the sedition offence remains as a summary offence after the promulgation of the NSL.

77.   It is true that Article 41(3) of the NSL has stipulated that “case concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment”, but the term “offence endangering national security” is subject to contextual and purposive interpretation. 

78.   In Ng Hau Yi Sidney[19], the Court of Final Appeal explained the term “offence endangering national security” as follows:

“Where the NSL refers to “offence[s] endangering national security” without distinguishing between those offences which it creates and other offences of that nature, subject to any contextual or purposive arguments to the contrary which may arise in any particular case, it lends itself to the construction that it is referring to all such offences without distinction.”

(Italics supplied for emphasis).

79.   In my judgment, since the NSL does not seek to change the local laws relating to the sedition offence, the sedition offence remains to be triable summarily only and not on indictment.  Hence, when the particular issue whether the mode of trial of the sedition offence is changed by Article 41(3) of the NSL is considered, the contextual or purposive approach must lead to the interpretation that the term “offence endangering national security” in Article 41(3) does not include the sedition offence for the simple reason that the NSL does not seek to change the offence-creating provision of the sedition offence in the local laws.  In my judgment, the mode of trial specified in Article 41(3) of the NSL does not apply to the sedition offence which remains to be triable summarily only, and not on indictment.  Interpreting the inter-relationship between the NSL and the local law relating to the sedition offence in this way, I see no conflict between them, be it in terms of the nature of the sedition offence, or in its mode and procedure for trial.

Conclusion

80.   For the reasons stated above, I hold that the sedition offence has always been a summary offence and it remains to be so after the promulgation of the NSL.

81.   Since the sedition offence is a summary offence, a magistrate will have no jurisdiction to transfer a charge in respect of this offence to the District Court under section 88(1)(a) of the Magistrates Ordinance.  However, if the accused faces not only a charge in respect of the sedition offence but also other charges which can be properly transferred to the District Court under section 88(1)(a), a magistrate will then have the jurisdiction and power, in the exercise of his discretion, to order the charge for the sedition offence to be transferred to the District Court together with the charges that can be properly transferred to the District Court under section 88(1)(b) of the Magistrates Ordinance.

82.   In this case, since there is no dispute that Charge 1 has been properly transferred by the learned Acting Chief Magistrate to the District Court, it must follow that, even though the sedition offence is only a summary offence, the learned Acting Chief Magistrate must also have the jurisdiction and power given to him under section 88(1)(b) of the Magistrates Ordinance to order the transfer of Charges 2 to 5 to the District Court.

83.   For these reasons, I rule that the District Court has jurisdiction to hear and determine Charges 2 to 5.