HCMA000096/1990
Magistracy Appeal
No. 96 of 1990
Criminal law and procedure - application for case stated - power of magistrate to state case - meaning of "determination" in section 105 of the Magistrates Ordinance - whether appeal my case stated available in the circumstances.
IN THE COURT OF APPEAL
1990, No. 96
(Magistracy Appeal)
BETWEEN
THE QUEEN
AND
YEUNG WAI HUNG
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Coram: Fuad, V. -P., Hunter and Penlington JJ.A.
Date of hearing: 9 May 1990
Reasons handed down: 17 May 1990
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JUDGMENT
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Fuad, V.-P. , (giving the judgment of the Court)
1. This was a defendant's appeal by way of case stated, reserved for the consideration of this Court by Ryan J. pursuant to the provisions of section 118(1)(d) of the Magistrates ordinance, Cap. 227 ("the ordinance"). We dismissed the appeal at the conclusion of the hearing on 9th May 1990 and now give our reasons.
2. The matter arose in this way - I take the facts from the stated case. On 29th November 1989 the appellant, Yeung Wai Hung, appeared before Mr. P.J. Line in the Magistrates Court (Central Magistracy) jointly charged with another man with common assault. He pleaded guilty to that charge while his co-accused pleaded not guilty. He also admitted a second charge upon which he was charged alone : resisting a police officer in the execution of his duty. The two men were represented by the same counsel.
3. The appellant was told to sit at the back of the Court and the magistrate began to hear the case against the co-accused. Before any evidence was called the magistrate was handed "the brief facts of the case as an opening". I now quote from the case :
"
(g)
The appellant was not asked to agree any facts either directly or through his counsel. I did not accept his plea of guilty. I did not convict him. I was not minded to deal with the appellant on the scant information in the brief facts when I was about to hear evidence concerning the incident which both the appellant and his counsel were going to hear as well.
(h)
The victim of the common assault was called. She told me she was attacked by three youths. She was taken unawares. The attack commenced with a punch to her face which injured her nose. She fell to the ground where she was kicked by all three. She said the blows were very heavy. She said her right upper arm and shoulder and right upper back were bruised and that tier nose was fractured. She said that after x rays were taken she underwent an operation to her nose which had to be done at Queen Mary Hospital.
(i)
On nearing this I asked the prosecutor why the charge was only one of common assault. He told me that he had no medical report and that the severity of the injuries was news to him.
(j)
I was of the opinion that prima facie the charge was not appropriate. I considered the fairest course was to order a trial de novo before another magistrate, after an adjournment in which a medical report on the victim could be obtained, and that the appellant's leas should be vacated and that there be opportunity to amend or substitute a charge that reflected the gravity of the prosecution case. I consequently made the order directing the pleas be vacated and a trial be heard before another magistrate.
(k)
The prosecution agreed to such a course. Counsel for the appellant expressed a desire to continue the case. No law was argued."
4. In a supplement to the case, the magistrate explains that the hearing was listed before him on 16th January 1990 "in view of the application to state a case". The prosecution tendered an amended charge of assault occasioning actual bodily harm, whereupon counsel for the appellant objected to the procedure adopted by the magistrate and asked for an adjournment to await the outcome of this appeal. This was granted.
5. For reasons which will appear, we do not think it is necessary to set out the grounds upon which objection was raised at the trial by counsel for the appellant or the reasons the magistrate gives for his opinion that he "was entitled in law and had jurisdiction to make the order and that 1 was right to make the order in the circumstances".
6. A magistrate has power to state a case by virtue of section 105 of the Ordinance, the material part of which for the purposes of this appeal is as follows :
"Application to state case on point of law 105. Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction, order or determination was granted and the grounds on which the proceeding is questioned for the opinion of a judge. ....."
7. At the outset of the hearing of this appeal, Mr. Cross, for the Crown, took the point that upon the true construction of those provisions, the magistrate had no power to state a case as the matter now stood, and it therefore followed that this Court had no jurisdiction to hear this appeal. We decided to hear that question before addressing the questions raised by the case .
8. Mr. Cross submitted that the prerequisite of a case stated was that there be a "hearing and determination by a magistrate" as provided in the opening words of section 105. He relied upon the decision of the House of Lords in Atkinson v. USA Government [1971] AC 197 where the question arose whether tae Chief magistrate had jurisdiction to state a case under section 87 of the Magistrates' Courts Act, 1952 after refusing to commit a fugitive criminal on a particular charge. That section read:
"87(1). Any person who was a party to any proceeding before a magistrates' court or is aggrieved by the conviction, order, determination or other proceeding of the court may question the proceeding on the ground that it is wrong in law or is in excess of jurisdiction by applying to the justices composing the court to state a case for the opinion of the High Court on the question of law or jurisdiction involved ..."
9. Lord Reid had this to say, at p. 235 :
"So the case for the respondents is that they were parties to the litigation in the magistrates' court and are therefore entitled to question the decision of the court by applying for a stated case. If this subsection is to have a limited meaning it must be because 'conviction, order, determination or other proceeding' has a limited meaning. I think it must be limited at least to this extent: it frequently happens that a court has to make a decision in the course of the proceedings - e.g., whether certain evidence is admissible - but it cannot have been intended that the proceedings should be held up while a case on such a matter is stated and determined by the superior court. So application for a case can only be made when the litigation or 'proceeding' is at an end. But, as Lord Goddard pointed out in Card v. Salmon [1953] 1 Q.B. 392, 396, examining magistrates do not come to a final decision. If they decide to commit for trial the case goes on, and if they decide not to commit that is not a ground for a plea of autrefois acquit.
I find this to be a question of difficulty. But, in order to avoid having to hold that this Consolidating Act did something which Parliament cannot possibly have intended to do, I think that it is possible to hold that section 87 has no application to committal proceedings because such proceedings do not lead to any final decision. I would therefore hold that the chief magistrate had no power to state a case ..."
10. Lord Guest agreed with this view in these terms, at P. 244:
"I am content to express my agreement with the majority of your Lordships that an appeal by stated case upon extradition proceedings is incompetent for the reasons given. It is unnecessary for me to say more than that, before the Magistrates' Courts Act, 1952, it was never suggested that an appeal by way of stated case under the Extradition Act, 1870, was competent and as the Magistrates' Court Act, 1952, was a consolidating Act I am not prepared to accept that the terms of section 87 of that Act have created such a novel departure in the law of procedure. The respondent, in order to succeed upon this branch of the case, would have to snow that before 1952 in committal proceedings generally there must have been a right of appeal by stated case for the prosecution or for the defence upon a question of law. This departure, which is entirely novel, would create practical difficulties which I am not prepared to assume were intended by the consolidation Act of 1952. Mr. Buzzard, as amicus curiae, gave the complete answer, in my view, when he said that a stated case was only competent for a final determination. This conclusion was reached by an examination of section 87 where 'other proceeding' had to be interpreted ejusdem generis with the words 'conviction, order or determination' which are final proceedings."
11. That case was applied by the Divisional Court in Streames v. Copping [1986] 1 QB 920. There the justices rejected a submission that the information before them was bad for duplicity and the question arose whether they had jurisdiction to state a case under the 1980 Magistrates' Courts Act. May L.J., who gave the leading judgment considered that the relevant section was to all intents and purposes in the same terms as the section construed by the House of Lords. At p. 928 May L.J. said:
"In my opinion, therefore, this court is bound by the underlying ratio of the decision in Atkinson's case. It follows that magistrates' courts on the one hand have no jurisdiction to state a case under section 111(1) of the Act of 1980 unless and until they have reached a final determination on the matter before them, and that this court has no jurisdiction on the other to consider or determine such a case if justices should nevertheless purport to state one."
Then, at p. 929 he added:
" Apart from questions of jurisdiction, where justices are asked to, and do rule on a point of law in the course of a hearing before them - for instance, on a question of the admission of evidence, or the construction of a statute or document - they should not at that stage, with nothing more, accede to an application by the party against whom they have ruled for an adjournment and for them to state what I can describe as an 'interlocutory' case. If they purport to do so, then for the reasons I have given I do hot think that this court has jurisdiction to hear it. The justices, having made their ruling, should complete the hearing and determination of the matter before them, and then state a case thereafter if they are asked to do so. In a very special instance, if the party aggrieved sought, and obtained leave to apply for prohibition, then the justices might be wise to adjourn the matter pending the hearing of the application for judicial review, but they should not state a case under 'section 111(1) until after their final determination of the information or complaint before them."
12. The Appeal Division of the New Brunswick Supreme Court took a similar view of similar provisions independently of the English authorities in R. v. Appleby (1974) 10 NBR (2d.) 162. In that case the lower court rejected a motion that a charge be dismissed, inter alia, because the statute creating the offence charged was beyond the competence of the legislature and stated a case on the application of the accused. At p. 169 we find Hughes C.J. (New Brunswick) holding :
"The question for the determination of this Court is not whether the defendant is without remedy to raise the issue which he raised before the trial judge but whether an appeal by way of stated case lies to review the judge's decision.
An appeal lies under s. 762(1) against a 'conviction, order, determination or other proceeding in a summary conviction court'. The only ground on which the decision in the present case could be appealable is that the judge's decision was a 'determination'.
In my opinion a 'determination' as used in s. 762 is a decision which is decisive of the issue raised in the information. 'Determination' implies an ending or finality, the ending of a controversy. While a decision of the trial judge allowing the defendant's motion would have ended the issue of the defendant's guilt or innocence of the offence charged, the decision to deny the motion did not have that effect and in my opinion was therefore not a 'determination' against which an appeal by way of stated case was available."
In the same case, Bugold J.A. said, at pp. 173-4:
"Having regard to the summary conviction proceedings themselves and the above authorities, I feel that the expression 'conviction, order, determination or other proceeding of a summary conviction court' as used in s. 762 of the Code is to be interpreted as referring to judicial acts which are of a final, rather than an interlocutory, nature. It seems to me that to hold otherwise would have the result that any matter upon which the judge of first instances rules in the course of summary proceedings before him could be subject to appeal by way of stated case."
13. ..............
"In my opinion, there was no final determination or disposal of the issues by the Provincial Court judge upon his dismissal of the preliminary motion to dismiss the information. This is made clear when the summary conviction court adjourned the matter and fixed the date of trial. The ruling made by the Provincial Court judge on the preliminary motion to dismiss the information was, in my opinion, a decision of an interlocutory nature and not subject to review on appeal to this court by way of stated case."
14. The same approach has been taken in Hong Kong. In Newton v. Walker [1975] HKLR 317, in construing section 113(l) of the Ordinance (in which the expression "conviction, order or determination" occurs) Pickering J. said, at p. 321:
"I am far from saying that s. 113(1) might not have been more clearly expressed but reading that subsection as a whole and in the context of other forms of appeal, I am fully satisfied, and hold, that it is not the intention of the subsection to permit appeals upon interlocutory matters arising in magistrates' courts. Were it otherwise appeals would proliferate like mushrooms at dawn to the impediment of the disposal of the work of the criminal courts. The appeal fails for want of jurisdiction."
15. Most of the authorities to which we have made reference, as well as others, were reviewed by Bewley J. in Attorney General v. Chan Wah Chuen [1988] 2 HKLR 559. The accused in that case was convicted of an offence on 3rd February 1988. He was remanded for sentence to 24th February and on that day the prosecutor applied for a review of the conviction which was for an offence less serious that the one charged. The magistrate refused the application on the grounds that it had not been made within the time allowed by section 104(1) of the Ordinance, which reads:
"104. (1) Within 14 clear days after the determination in any manner by a magistrate of any matter which he had power to determine in a summary way it shall be lawful for either party thereto to apply to the magistrate to review his decision in the matter."
16. After discussing the authorities, the judge came to this conclusion :
"In the context of the trial of an information by a magistrate, I think 'determination' means a final decision on all matters in issue between the informant and the defendant. This includes sentence upon conviction."
17. Bewley J's views find firm support in the decision of the English Court of Criminal Appeal in R .v. Cole [1965] 2 QB 389 when the Court rejected the contention that a plea of guilty once recorded ranked as a conviction. It is unnecessary to go into the facts. Lord Parker C.J. gave the judgment of the Court, and had this to say at p. 394:
"It is, however, unnecessary to go into that matter further because it is quite clear that whilst no doubt a confession of guilt is the highest conviction, nowhere is it stated either in Hale or Hawkins when the conviction occurred. It is clear that it does hot occur at the time of the recording because otherwise it would be impossible for a judge to allow a plea to be changed, as it perfectly possible up to sentence, and indeed in one of the cases a verdict of a jury itself was set aside before sentence. In the judgment of the court it only ranks as a conviction when the defendant is sentenced. This view is, to say the least, in accordance with common sense."
18. Cole was followed by the Full Court of Hong Kong in Wong Cho Kui v. The Queen [1965] HKLR 575 and referred to in S . v. Recorder of Manchester [1971] AC 507. From the latter case we will only cite one short passage from the speech of Lord Upjohn, at p. 507:
"My Lords, it seems to me clear that the law plainly took the wrong turning in Sheridan's case [1937] 1 K.B. 223. The court, whether High Court, quarter sessions or a court of summary jurisdiction, retains full jurisdiction over all matters before it until sentence, that is, until the final adjudication of the matter; and the reasoning in Sueridan's case and the cases of Grant [1936] 2 All E.R. 1156; Guest [1964] 1 W.L.R. 1273, and Gore Justices [1966] 1 W.L.R. 1522, which followed that reasoning must be treated as overruled. In future it will be quite unnecessary to accept a provisional plea or to resort to the . guilty but ...' artifice. If the court upon all the facts before it, thinks it is proper to accept a plea of guilty then the court may permit that plea to be withdrawn and a plea of not guilty accepted at a later stage up to sentence, that is, until the complete adjudication of conviction."
19. Mr. Miu relies on Yuen Chun Shing v. The Queen [1976] HKLR 767 where the accused was convicted and remanded in custody for two weeks pending reports. He applied for bail pending appeal. Cons J. (as he then was) granted bail, saying at p. 770:
"..........it is now firmly established that an appeal against sentence is a matter separate and distinct from an appeal against conviction Re g. v. Tam Kun Shing [1975] HKLR 128. It must therefore be technically feasible to pursue an appeal against conviction before sentence is passed. This is not a course to be generally encouraged, but after much hesitation I have come to the encouraged, conclusion that in the particular and peculiar circumstances of this case the interests of justice would best be served by granting bail to the hearing of the appeal. It is of course a matter for the magistrate what course he adopts now with regard to the passing of sentence but probably he will think fit to defer the question until a decision has been given on the appeal."
20. With very great respect, it seems to us that simply because an appeal against sentence and an appeal against conviction are separate and distinct matters, it does not follow that an appeal against conviction lies before there has been a final disposal of the case by the making of an order or the imposition of a sentence following conviction. Be that as it may, it could be said that the decision was reached per incuriam because the Full Court's decision in Wong Cho Kui , following Cole , was not cited to the judge.
21. Mr. Miu submitted that the case before us can be distinguished from cases relied upon by the Crown. He also contended that the proceedings before Mr. Line were not an end when he adjourned the hearing and discharged himself from the case. He pointed to what the Magistrate had said in the supplement to the case : "I .... state as a fact that by my order I intended to end my role as adjudicating magistrate in this case and that another magistrate should make the final determination".
22. We found ourselves unable to accept Mr. Miu's contentions. With every respect he was endeavouring to do what Hogan C.J. said counsel for the appellant tried to do in Wong Cno Kui , that is to say to meet the authorities "by distinguishing the facts and ignoring the principle". We have no doubt that the weight of authority is overwhelmingly against the proposition that the magistrate had jurisdiction to state a case in the circumstances of this case. We do not comment on the merits of his decision. We hold that upon the true construction of section 105 of the Ordinance (and there is no power elsewhere) a magistrate has"no jurisdiction to state a case until there has been a final disposal of the case. To say that Mr. Line, when he laid down his pen, had "determined" "the information" would not, in our view, be a fair use of language.
23. If the prosecution continues before another magistrate and the appellant is convicted, then, after he has been sentenced he can properly apply for a case to be stated, and in the light of the nature of his complaint, all the facts concerning what took place before Mr. Line will presumably be set out in the case and be considered on the ensuing appeal.
24. It was for these reasons that we reached the conclusion that in terms of section 105 of the Ordinance, the appellant had no right to apply for a case to be stated, the magistrate had no power to state it and this Court no jurisdiction to entertain it - and therefore dismissed the appeal.
Representation:
Mr. N. Miu (Hermes Lui & Co.) for the Appellant.
Mr Grenville Cross Q.C. and Mr. W.S. Cheung (Crown Prosecutor) for the Crown.