ATTORNEY GENERAL v. TSA LAI SHING

HEADNOTE

Criminal law and procedure - refusal by magistrate to accede to prosecution's application for a remand of accused persons on their first appearance so that legal advice could be obtained as to venue of trial or for a Government Chemist's Certificate - on prosecution's refusal to then elect that a plea be taken, the case be transferred to the District Court or a date be fixed for the hearing of committal proceedings each case was struck out and the defendants discharged - as a general basis upon which to exercise a discretion this was plainly wrong and unreasonable - appeals by way of case stated allowed and all cases are remitted back for them to be dealt with depending on the election as to venue made by the Crown.

IN THE HIGH COURT OF HONG KONG

APPELLATE JURISDICTION

_______________

Mag. Appeal No. 817/87

_______________

Mag. Appeal No. 818/87

BETWEEN

The Attorney General

and

LEE Siu-ming

_______________

Mag. Appeal No. 819/87

BETWEEN

The Attorney General

and

TSUI Yip-kei

LUONG Thich-xueng

LEE Man-kit

WONG Yau-ming

LI King-man

CHAN Ka-kui

_______________

Mag. Appeal No. 820/87

BETWEEN

The Attorney General

and

KO Shum-yin

_______________

Mag. Appeal No. 821/87

BETWEEN

The Attorney General

and

WONG Yik-chun

_______________

Mag. Appeal No. 822/87

BETWEEN

The Attorney General

and

CHOY Yu-hing

_______________

Mag. Appeal No. 823/87

BETWEEN

The Attorney General

and

CHEUNG Kam-shing

_______________

Mag. Appeal No. 824/87

BETWEEN

The Attorney General

and

CHAN Wai-pang

_______________

Mag. Appeal No. 825/87

BETWEEN

The Attorney General

and

TRAN Chanh

_______________

Mag. Appeal No. 827/87

BETWEEN

The Attorney General

and

CHAN Chun-kwai

_______________

Mag. Appeal No. 828/87

BETWEEN

The Attorney General

and

CHAN Ching-tin

_______________

Mag. Appeal No. 829/87

BETWEEN

The Attorney General

and

YAU Chi-keung

_______________

Mag. Appeal No. 830/87

BETWEEN

The Attorney General

and

YAU Chi-kang

_______________

Mag. Appeal No. 831/87

BETWEEN

The Attorney General

and

YIP Lai-king

YIP Nui

_______________

_______________

JUDGMENT

_______________

1. The Crown appeal by way of case stated in 15 cases against orders made by a Principal Magistrate sitting at San Po Kong Magistracy in striking out the cases for want of prosecution.

2. All the orders were made over a 4 day period between 6th and 10th August last.

3. The circumstances in which the orders were made are substantially the same and all the cases can be conveniently dealt with in one judgment. With one exception each Respondent appeared before the Court for the first time having been arrested by the Police one or two days earlier. The prosecutor requested that no plea be taken and the cases be remanded for a number of reasons but principally to enable legal advice to be obtained or, in the cases of those charged with drug related offences to enable Government Chemist Certificates to be obtained.

4. The power given to magistrates to remand is clearly a discretionary one and as such should not readily be interfered with unless it has been exercised unreasonably or where it will result in an injustice. The learned magistrate expresses the view that when a defendant is charged and brought before a Court the Crown should be ready to either take a plea from him, transfer the case to the District Court or apply for a date to be fixed for hearing committal proceedings to the High Court. She states the Crown should not ask the Court to remand a defendant without doing any of that. That expression of her views is, in my opinion, totally unrealistic and ignores certain fundamental elements of the system of law which is in existence in Hong Kong.

5. The Court in which a person is tried is essentially one for the Attorney General to select. That choice can only be properly exercised if the Attorney-General or someone whom he has authorised on his behalf is given the opportunity to assess the nature of the alleged offence, whether the defendant might merit a heavier sentence by reason of a bad previous criminal record and obviously other factors which are considered relevant. It is a decision which should not be left in the hands of just anyone and it is not one that can be effectively made overnight.

6. The finding that administrative practicalities have no place in the exercise of a judicial discretion is a “head in the sand” attitude which I cannot support.

7. Section 52 of the Police Force Ordinance provides that every person apprehended and detained by the Police shall be brought before a magistrate as soon as practical and within 48 hours of his apprehension. The reason for such a provision is obvious and highly desirable but it means, for practical purposes, that the first court appearance of a person apprehended and detained by the police is only a very short period after his arrest, and, in many of the cases here, within 24 hours. If the Attorney-General is to make a reasoned and proper decision as to which Court the case will be transferred to, it cannot be done before an accused’s first appearance.

8. A further aspect of a number of the cases stated is that remands were sought to enable a Government Chemist’s Certificate to be obtained to certify the exact nature and quantity of suspected dangerous drugs seized. Again it would just not be possible to have this information prior to the defendant’s first Court appearance. To my mind it wou8ld be highly undesirable to ask an accused person to plead to an offence when he is not simultaneously informed of the type and amount of drugs he is suspected of having in his possession. There must be a large number of cases where the prosecution is unaware prior to the Government Chemist’s report as to whether the quantity seized is such as to raise a presumption that possession was for the purpose of unlawful trafficking.

9. For these reasons I am of the opinion that the learned magistrate’s contention that the Crown cannot ask a Court to remand a defendant without taking a plea, fixing a date for committal proceedings or transferring the case to the District Court cannot be the general principal upon which the discretion she has should be exercised. There may well be individual circumstances in which a Court could refuse a remand on an accused’s first appearance but to refuse to do so as a general rule is plainly wrong. In fairness to the learned magistrate her motives are laudable in that she has placed the interest and rights of defendants above all else but there are other interests that must also be considered. Foremost amongst those who should also be considered is the community as a whole and the wholesale discharge of accused persons without trial or even pleas being taken from them is not in the best interest of the citizens of Hong Kong.

10. Having found that the learned magistrate exercised her overall discretion unreasonably I have looked at each case individually. I accept that in some of them the period of remand sought was in excess of 8 days but it would seem to be a simple matter for the Court to advice an unrepresented accused of his rights under Section 79 of the Magistrates Ordinance and ascertain whether he consented to a remand of a longer period.

11. I cannot find such circumstances existing in any particular case which would warrant the magistrate's refusal to the remands sought and to both questions of law posed in each case stated I would answer in the affirmative. I am also asked what I think the learned magistrate should have done but believe I have already answered that in the reasons given. Each case is to be remitted back to San Po Kong Magistracy and to be dealt with either by setting a return date or by transfer to the District Court or by setting a date for summary trial, depending on the election made by the Crown.