JETEX HVAC EQUIPMENTS LTD. v. COMMISSIONER FOR LABOUR AND ANOTHER

Headnote

Summary proceedings in magistrates court - Whether a prosecution is "brought in the name of the Commissioner for Labour" when the information was laid by an officer of the Labour Department.

` Court of Appeal held: prosecution is commenced when information is laid - the summons issued in the name of Her Majesty the Queen is merely the process by which the defendant is brought before the court to answer to the information and to be dealt with according to law - in substance and effect the prosecution was brought in the name of the Commissioner. Accordingly:

(i) The magistrate's purported amendment of the summons was a nullity;

(ii) the prosecution was properly brought.

Per curiam: Whilst the High Court has the jurisdiction to make an order of prohibition to stop a magistrate from conducting proceedings in excess of jurisdiction, applications for judicial review for such purpose should be closely scrutinized. Here, the point taken by the defendant could have been taken on appeal if the magistrate had convicted.

IN THE COURT OF APPEAL

1994, No. 114
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. Nearly two years ago, on 24 November 1992, an officer of the Labour Department Ms Leung Ng Sau Mei, the 2nd appellant, laid an information at the Tsuen Wan Magistracy alleging that the Respondent to this appeal, Jetex HVAC Equipments Ltd. ("Jetex") had committed an offence on 23 June 1992, contrary to s6A(2)(a) of the Factories and Industrial Undertakings Ordinance, Cap 59. The laying of the information was in fact done by the computerized process called CASEMAN, not by the 2nd appellant personally attending at the Tsuen Wan Magistracy. But nothing turns on this. Pursuant thereto, and on the same day, a summons was issued requiring Jetex to appear at the Magistracy on 10 March 1993 to answer to the information and to be further dealt with according to law. The summons was in standard form, issued in accordance with the provisions of s8 of the Magistrates Ordinance: one of the many issued by the various magistracies on a daily basis upon information laid by officers of the different departments of government charged with specific statutory responsibilities. By these means the "rule of law" is enforced in Hong Kong. And yet, here we are, in October 1994, with a summons for an offence under that Ordinance allegedly committed over two years ago still unresolved: an offence intended to be dealt with summarily. Such is the due process of law. How has this come about?

The proceedings in the magistrates' court

2. What happened was this. When Jetex answered to the summons, a not-guilty plea was entered and the hearing of the information was adjourned. The hearing was fixed for two days in October 1993 but was adjourned part- heard on 19 October. When the hearing resumed on 3 January 1994 counsel for Jetex took, for the first time, a so-called "jurisdictional point": that the magistrate had no jurisdiction after-all to hear the information. There is an affirmation before us, made by Jetex's production manageress, which is revealing: she said that the point was taken at that late stage, after the case had already run for two full days in October 1993, because the point "had escaped" the attention of Jetex's legal advisers earlier: despite the fact that Jetex had throughout been represented by solicitors and counsel. This alone might have given the magistrate pause. The magistrate called it a "preliminary" point: there was nothing preliminary about it at all.

Section 17 Factories and Industrial Undertakings Ordinance ("the Ordinance")

3. The point focusses on s17 of the Ordinance which says:

17. Prosecution of offences

(1) Prosecutions for offences against this Ordinance may be brought in the name of the Commissioner for Labour, and may be commenced and conducted by any officer of the Labour Department.

(2) Save as is provided in subsection (1), no prosecution for an offence against this Ordinance shall be commenced without the written consent of the Commissioner for Labour.

(3) Nothing in this section shall be deemed to derogate from the powers of the Attorney General in relation to the prosecution of criminal offences.

4. The "point" taken by counsel, as recorded by the magistrate in his written decision, was this: The summons was issued in the name of Her Majesty the Queen, not in the name of the Commissioner for Labour; hence the prosecution for the s6A offence was not "brought in the name of the Commissioner for Labour", as required by s17(1); and as it was common ground that the Commissioner for Labour had not personally given his written consent under s17(2) for the commencement of the prosecution, the summons was a "nullity" and the magistrate had no jurisdiction to proceed with the hearing. As it now appears counsel's point was not properly understood by the magistrate.

Prosecution for an offence under the Ordinance

5. The point entertained by the magistrate but not advanced by counsel was wholly misconceived. Under the statutory scheme a prosecution for an offence under the Ordinance commences with the laying of the information at the magistrate's court. This duly occurred in the present case on 24 November 1992 when the information was laid by the 2nd appellant. Once that took place, the prosecution for the s6A offence had commenced; and, omitting for the moment the words in the subsection on which Mr Remedios, counsel for Jetex, now lays stress, s17(1) says specifically that "prosecutions for offences against the ordinance..... may be commenced and conducted by an officer of the Labour Department". If there was an irregularity, it would have been in the information, not in the summons.

Summons to compel attendance at a magistrates' court

s8(1) of the Magistrates Ordinance provides:

"8 Issue of summons to defendant and mode of service thereof

(1) In every case where .... an information (is) laid before .... an officer of a magistrate's court who is authorised in writing for the purpose by a magistrate, being .... (an) information in respect of which a magistrate has power to convict summarily .... it shall be lawful, subject to this Part, for a summons to be issued by .... an officer of a magistrate's court who is authorized under this subsection.

(1A)Every such summons shall be issued to the persons against whom the .... information (has been) laid, stating shortly the matter of the .... information and requiring him to appear at a certain time and place before a magistrate to answer to the .... information and to be further dealt with according to law.

(1B).....

(1C)Repealed

(1D)Every such summons shall be in the prescribed form".

6. When one looks at Form 1, made under the Magistrate (Forms) Rules, one sees that the summons to appear before the magistrate to answer to the information must be in the name of Her Majesty the Queen: the prosecution having already been commenced by the laying of the information. Mr Bruce counsel for the appellants in this court has in his written submissions referred us to the case ofR v. Hughes [1879]4 QBD 614 where Hawkins J observed:

"The information ...... of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place."

7. Mr Remedios' view point throughout was that the information was a nullity; it simply failed to comply with s17(1) of the Ordinance; the magistrate therefore had no jurisdiction to entertain it. The point appears not to have been fully understood.

The Magistrate "amends" summons

8. The magistrate, Mr Barnabas Fung, perceiving a defect in the summons where none existed, proceeded to amend the summons by deleting the name of Her Majesty the Queen and substituting therefor the name "The Commissioner for Labour". We are told that this was upon the submissions made to him by counsel then appearing for the Commissioner. This proceeding was not sanctioned by law. There are no statutory provisions which authorize the Commissioner to compel the attendance of a defendant at a magistrates' court, by summons or by any other process.

9. It was in any case a curious step for the magistrate to have taken in January 1994 since Jetex had already answered to the summons, for the first time on 10 March of the previous year. Jetex is a corporation, represented by solicitors and counsel before the magistrate. It required no further summons to compel their attendance. If on 3 January 1994 Jetex should simply have walked out of court, that was its entitlement: the right of parties who have not entered into any recognizance to appear at an adjourned hearing to take part in proceedings under s16 of the Magistrates Ordinance is just that: a right, not a duty. The magistrate could have continued with the hearing in the absence of Jetex and reached a determination on the information. The amendment of the summons was, accordingly, an exercise in futility. The magistrate effected the amendment in disregard of the provisions of s8(1D) of the Magistrates Ordinance which says that every summons to appear at a magistrate's court must be in the prescribed form, and the form says that the command to appear must be in the name of Her Majesty the Queen.

Hearing of information was adjourned

10. Another point to note is this: instead of continuing with the hearing after his ruling on 3 January the magistrate was prevailed upon to adjourn the case. This apparently took place with the consent of prosecuting counsel. This enabled Jetex to take out an application for leave under Order 53 r3 of the Rules of the Supreme Court to judicially review: (1) the decision of the magistrate to amend the summons and (2) the order of the magistrate to amend, which amounted to precisely the same thing.

11. The heading of the notice of application is revealing. It says:

"IN THE MATTER of a Prosecution under sections 6A(2)(a) and 6A(3) of the Factories and Industrial Undertakings Ordinance Cap 59".

12. The reliefs sought were as follows:

1. An Order of Prohibition prohibiting the Magistrate from further proceeding with the trial.

2. A Declaration that the decision by the magistrate to amend the summons by substituting the name "the Commissioner for Labour" for the name "Her Majesty the Queen" was unlawful.

3. An order of Certiorari to quash the order made by the magistrate amending the summons by substituting the name "Commissioner for Labour" for the name "Her Majesty the Queen".

4. A Direction under RSC Order 53 rule 3(10)(a) that all proceedings under the summons be stayed until after the application for judicial review or until the Court otherwise orders.

Judicial review of criminal process

13. Soon after the magistrate's ruling Jetex applied for and was given leave to issue proceedings by way of judicial review. In my judgment the judge entertaining that application could properly have refused leave.

14. The magistrate was dealing with a criminal prosecution and judicial review of decisions made in the course of a criminal trial ought to be closely scrutinised. Here the magistrate had made an order which, in his judgment, dealt with the so-called preliminary point raised by the defence. Right or wrong, it was simply one step in the criminal process, even though it went to what counsel called a jurisdictional point. Having made his ruling, the magistrate might well have proceeded with the hearing and reached a determination on the matter of the information. Section 19(4) of the Magistrates Ordinance is in clear terms. It says:

"19 Proceedings at hearing

(1). ...

(2) ....

(3) ....

(4) The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict .... or dismiss the ...... information......"

15. If the magistrate, upon the determination of the whole case, had convicted Jetex, it was open to them to appeal under Part VII of the Magistrates Ordinance: and the point they wished to raise in the judicial review proceedings could then have been raised on appeal. And if the magistrate had dismissed the information and acquitted Jetex, they plainly had no further interest in the matter and could not have pursued an academic point by way of judicial review: see Order 53 r3(7) which specifically precludes the court from granting leave "unless it considers that the applicant has a sufficient interest in the matter to which the application relates".

Hearing before Mayo J

16. Leave to issue proceedings having been given Mayo J heard the matter on 12 May 1994 and, on the same day, granted the first three reliefs sought in the notice of application. Hence the appeal to this Court. The appeal is confined of course to the order prohibiting the magistrate from further proceeding with the trial.

17. The judge's error of approach can be seen in the passage of his judgment where he said:

"The proceedings which were commenced against the Applicant (Jetex) were in the name of Her Majesty" (emphasis added).

18. Nothing of the kind. The informant was the second appellant, an officer of the Labour Department. She did not purport to bring the proceedings in the name of Her Majesty the Queen. The judge in his judgment referred to s8 of the Magistrates Ordinance. He said that if the prosecution were "conducted by someone other than the Commissioner it would be in the name of Her Majesty the Queen by virtue of the provisions of s8." This seems to me to be a confusion of two matters: the information which commenced the prosecution and the summons which was the process by which the defendant was compelled to attend before the magistrates' court to answer to the matter of the information. And, of course, as far as the information was concerned it was not in the name of Her Majesty the Queen.

19. The judge quashed the magistrate's order amending the summons but not, as I understand it, on the ground that the magistrate had no power to do so. The judge granted the relief because he came to the view that the prosecution was not in the name of the Commissioner; and as no written consent was obtained under subsection (2) "the proceedings", meaning the entirety of the proceedings, were a nullity. At p3 of his judgment he said:

"It would seem to me to be quite clear from Section 17(1) that the prosecution must be in the name of the Commissioner if the requirement of obtaining his consent is to be obviated. It is not enough to say that it is obvious from the surrounding circumstances that the prosecution is being undertaken by the Labour Department. The question which has to be answered is - Is the prosecution in the name of the Commissioner? If one is unable to answer this in the affirmative it is then necessary to obtain the Commissioner's written consent."

20. The analysis in Mayo J's judgment on this point is very brief, and it is not by any means clear that counsel then representing the Commissioner had fully understood Mr Remedios' point. The judge had earlier said:

"It (is) manifest on the face of the summons that the prosecution was being conducted by the Commissioner for Labour as there is a statement on the summons that the information was laid by Leung Ng Sau Mei of the Labour Department".

21. The judge was, of course, right in this observation. The true question for the judge therefore should have been: Was the information, laid by the 2nd appellant, an officer of the Labour Department, in effect laid in the name of the Commissioner for Labour?

22. It is noteworthy that counsel for Jetex was recorded by the judge as having said: "There could be two situations which could arise; either prosecutions were conducted in the name of the Commissioner in which case obviously his consent was not required, or they were conducted by some other party when such consent was mandatory." The judge could well have asked himself this question: What "other party" could there possibly have been in this case?

23. Obviously, if a competitor in business should purport to lay an information against Jetex accusing them of breaches of the Ordinance, it would be right to require the written consent of the Commissioner for Labour under subsection (2) before the prosecution could properly be brought. Here, it was plainly a Labour Department prosecution.

24. Is this enough then to comply with subsection (1)? Mr Remedios, counsel for Jetex, says No. This issue, indeed the only issue, which is now so clearly ventilated in this court, seems to have been clouded in the court below by the confusion between the information and the summons. In this court it is now common ground that in so far as the magistrate, with little help from prosecuting counsel, had seen a defect in the summons. that was an error. With the air now hopefully cleared, I can go to the central issue in the case.

Prosecution brought in the name of the Commissioner

25. Mr Remedios, counsel for Jetex, argues in this court as follows: section 2 of the Ordinance defines Commissioner as meaning "the Commissioner for Labour appointed under s3, and except where the expression 'Commissioner for Labour' is used, includes .... a labour officer ...." (emphasis added). He therefore says that when the expression "in the name of the Commissioner for Labour" is used in subsection (1) of s17 it means literally just that; the proceedings must be brought in the Commissioner's name. The name of an officer of the Labour Department appearing on the face of the information is not good enough; the prosecution for an offence under the Ordinance in this case was not properly brought under subsection (1); and since it is common ground that the prosecution is not authorized under subsection (2), there being no written consent of the Commissioner, it follows that the magistrate had no jurisdiction to hear the purported information. In other words the information is a nullity.

26. In my judgment the argument has no merit. To start with, s17(1) is permissive: there is no mandatory requirement that the name "Commissioner for Labour" must in terms appear on every information. Far less does the statute required the Commissioner personally to be the informant. The law looks to the substance and not to the form. In substance and effect, the prosecution was brought in the name of the Commissioner for Labour. The summons which sets out the contents of the information laid by the 2nd appellant admits of no other view. No-one could possibly have been misled: the proof is provided by the fact that the summons was served on Jetex as early as November 1992 and the point now urged upon us was not taken until January 1994.

27. How can it be sensibly argued that the absence of the name of the Commissioner from the information affected anything the magistrate had to try? But even if it be right that the substance of the information was affected, and not merely its form, section 27(1) of the Magistrates Ordinance still applies. It says:

"27 (1) Where it appears to the ...... magistrate that there is

(a) a defect in the substance or form of any, information .... he shall, subject to subsection (2) amend the .... information .... if satisfied that no injustice would be caused by that amendment.....".

28. Subsection (2) says that the magistrate shall amend the information when -

(a) the defect is not material; or

(b) any injustice which might otherwise be caused by an amendment would be cured by an order for costs, an adjournment or leave to recall witnesses.

29. The whole tenor of the statute is to ensure that cases tried summarily in the magistrates' courts should proceed expeditiously and unencumbered by technicalities. In the light of the statutory scheme, I would wholly reject the argument that just because the words "in the name of the Commissioner for Labour" were not there, or the actual name of the Commissioner was not present, the information was invalid; and, having been laid, could not have been lawfully proceeded with, by the issue of a summons. I am comforted in this conclusion by the fact that the Divisional Court in England took the same view of the information dealt with in Hawkins v. Bepey [1980]1 AER 797.

30. I wholly accept Mr Remedios' argument, so cogently put, that if the information were a nullity there is nothing to amend; section 27(1) of the Magistrates Ordinance cannot in those circumstances bite at all. But this brings the argument round in a full circle: Can it be sensibly argued that the information laid by the 2nd appellant was a nullity? In my judgment, the answer plainly is No.

31. Obviously, it would have been technically better if the information had actually stated: "this information is laid by Leung Ng Sau Mei of Labour Department on behalf of the Commissioner for Labour" or perhaps better still: "in the name of the Commissioner for Labour". But this is mere sophistry. The courts are here to administer practical justice, not the ideal justice of a schoolroom. The information, reproduced in the body of the summons, could not have misled anybody. It was plainly issued in accordance with the provisions of section 17(1) of the Ordinance.

Conclusion

32. Obviously, in so far as the magistrate amended, or purported to amend, the summons under s27(2) of the Magistrates Ordinance the Judge's order quashing that amendment must stand. The rest of Mayo J's order of 12 May 1994 must be discharged. I would direct that the hearing of the information should resume as soon as possible before the magistrate Mr Barnabas Fung.

Nazareth, J.A.:

33. I agree and would only add this. The submission of Mr Remedios, for the respondent, rests primarily upon the construction of s.17(1) and of the definition of "Commissioner" in s.2 of the Factories and Industrial Undertakings Ordinance. He stresses particularly the exception in the definition of "Commissioner" to the inclusion of various subordinate officers where the expression "Commissioner for Labour" is used. He contends that where it is used, as in s.17(1), those subordinate officers are not included. To accept that proposition without qualification would be to ignore the opening words of s.2(1) which qualify all the definitions in that sub-section, including that of "Commissioner", i.e. they apply "unless the context otherwise requires". While that remains so, the express exclusion would, I think, demand that the Court be appropriately cautious in accepting that the context otherwise required in relation to an officer who is, as here, one of those specifically excluded. That said, I, nevertheless, have no doubt that even in respect of an officer so specifically excluded, the context may otherwise require.

34. I turn then to examine the context. Mr Remedios' submission is that the words "brought in the name of the Commissioner for Labour" mean just that, i.e., that it should be expressly stated "Informant: Commissioner for Labour". He accepts that the Commissioner would have to act through his officers, he could not possibly himself lay informations in all the cases dealt by his officers. But Mr Remedios says, in laying their informations they should expressly state "Informant: Commissioner for Labour". Without those, as it were magic words, the prosecution could not be brought by the Commissioner for Labour and his consent would be required under subsection (2). He contends that is an absolute requirement for the purpose of s.17(1). It was not explained what the object of this was, or what useful purpose it would serve; I do not accept the suggestion that it is some sort of necessary label to which the presumption of regularity could then be attached.

35. So the result we have is that even if the presumption of regularity is that the Commissioner brought the prosecution through his officers, even if the evidence itself points clearly to that, it matters not if the magic words "Informant: Commissioner of Labour" are not used. That result can only be characterised as absurd. Notwithstanding the able presentation of that submission, I recoil from any conclusion that the legislature could have intended anything so absurd. I reject the submission. The proper construction in my judgment embraces a prosecution that has been brought in the name of the Commission of Labour where it is brought by one of his officers, that is an officer of the Labour Department acting under his direction and under his control. Such an officer would represent him in the same way as police officers were held to represent the Chief Constable in Hawkins v Bepey [1980]1 All ER 797 at 800C per Watkins J.

36. Nor do I find anything in the legislation in particular in s.17(1) and in the definition of "Commissioner" that displaces the well-known Carltona principle (see Carltona v Commissioner of Works [1943]2 All ER 560). In Nelms v Roe [1969]3 All ER 1379, a case which the approach and context are helpful, that principle was explained by Lord Parker CJ at p.1382B in the following way:

"It has always been a principle in this country that, a Minister being responsible to Parliament for the acts of officers of his department and having to act through others, an act done by the proper officer of his department is the act of the Minister, the proper responsible officials are the alter ego of the Minister, and accordingly no question of delegation arises. That principle is very well known; the case which is always quoted in connection with that is Carltona, Ltd v Commissioner Of Works. There were indeed a number of cases following Carltona ..."

Indeed Carltona has been acknowledged as applying in Hong Kong. Two cases I might refer to are Re Chiu [1992]2 HKLR 57 and AG v Chiu & Chiu [1992]2 HKLR 84. The Carltona principle, not having been excluded or displaced, clearly calls for the construction I have propounded.

37. Mr Remedios' submission has of necessity forced him into contending that one cannot look behind what is represented upon the face of the information. It has only to be observed that this would result in, e.g., a disaffected employee being able to bring a prosecution without the authority or written consent of the Commissioner simply by using the name of the Commissioner, i.e. including the words "Informant: Commissioner for Labour". I would add that, although it has not arisen in anything as ridiculous a context as here, the approach in England has been to look behind the face of the matter to its substance and reality (see e.g. in addition to Hawkins v Bepey and Nelms v Roe, which have already been referred to, Rubin v Director of Public Prosecutions [1989]2 All ER 241).

38. Finally, I would add that I am also encouraged in the view I have taken of the true and proper construction of the provisions in question by the ordinary meaning of the expression "in the name of" which as given in the Concise Oxford Dictionary includes not only "invoking and relying upon" but also "acting as deputy for or in the interest of". In that context there can be no doubt that Madam Leung was acting under the direction and control of the Commissioner for Labour. There was not one iota of evidence to the contrary or even a suggestion as such.

39. For those reasons, I have no hesitation in allowing the appeal, and concurring in the order proposed by my Lord.

Penlington, J.A.:

40. I would also allow this appeal for the reasons set out fully by Litton and Nazareth, JJA.

41. The matter has had an unfortunate history. It is now a considerable time since the information was laid. There is authority to which Mr. Remedios has referred us, R. v. Wimbledon Justices ex parte Derwent 1953 1 A.E.R. 390, that the High Court may make an order of prohibition to stop a Magistrate from conducting proceedings in excess of jurisdiction. It is however in my view a course which is full of the danger which has emerged here: that there will, as a consequence, be very long delay and leave should be given to apply for judicial review, and such an order made, only in exceptional circumstances. Judicial review is a remedy to be granted where there is no other alternative remedy. Here there was no evidence that the hearing of the information will have taken a great deal of time and if at the conclusion of that hearing the defendants been convicted they had the normal right of appeal to the High Court on the ground which has been argued before Mayo J. and in this Court.

42. Having said that, I am satisfied that this information was laid in the name of the Commissioner; although that is not the exact wording used in the information, I do not think anybody could be in any doubt that was the effect of it. The appeal is allowed. The order of Mayo, J of 12th May 1994, quashing the order of the Magistrate to amend the summons should remain but the balance of the order is revoked and the information returned to the Magistrate for the hearing to continue as soon as possible.