HKSAR v. LAI YUN KWAI AND ANOTHER

HKSAR v. LAI YUN KWAI AND ANOTHER

The Magistrate validly exercised his statutory power under s.109I to bind over the acquitted appellants given his findings that threats had been made and had alarmed the surveyor; there is no statutory duty to obtain or invite representations from the defendants before making such an order and, on the facts, the exercise of discretion was justified; therefore the binding over orders stand and the appeal fails.

Citation
HKSAR v. LAI YUN KWAI AND ANOTHER
Parties
Respondent: HKSAR; 1st Appellant: Lai Yun Kwai; 2nd Appellant: Wu Kam Yuk
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 September 2003
Case Number
HCMA742/2003
Procedural Posture
Magistracy Appeal (criminal) / Judgment on Appeal
Outcome
Appeal dismissed; binding over orders upheld.
Legal Topics
Criminal Intimidation, Binding Over, Acquittal, Magistrate Powers, Right to Make Representations
Source Language
EN
Criminal Law Criminal Procedure Appeals Criminal Intimidation Binding Over Acquittal Magistrate Powers Right to Make Representations

Case Brief

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Parties

HKSAR

Respondent

Lai Yun Kwai

1st Appellant

Wu Kam Yuk

2nd Appellant

Procedural Posture

Magistracy Appeal (criminal) / Judgment on Appeal

Legal Issues

  1. 1 Whether the Magistrate had power to bind over acquitted defendants under s.109I Criminal Procedure Ordinance
  2. 2 Whether the Magistrate was obliged to invite representations from the defendants before making a binding over order
  3. 3 Whether the exercise of the Magistrate's discretion to bind over was justified on the facts

Ratio Decidendi

The Magistrate validly exercised his statutory power under s.109I to bind over the acquitted appellants given his findings that threats had been made and had alarmed the surveyor; there is no statutory duty to obtain or invite representations from the defendants before making such an order and, on the facts, the exercise of discretion was justified; therefore the binding over orders stand and the appeal fails.

Court Disposition

Appeal dismissed; binding over orders upheld.

Orders

  • Appeal dismissed.
  • Each appellant bound over to keep the peace and be of good behaviour for 12 months in the sum of $3,000.