Hong Kong Case Law: Decisions & Judgments

Topic

Magistrates' powers

Legal area

Court

5 Nov 2015

HKSAR v. CHEUNG KIN CHUNG

Citation

HKSAR v. CHEUNG KIN CHUNG
Court

Court of First Instance
Case number

HCMA411/2015

The appeal was dismissed because the magistrate correctly applied the law and had good cause to refuse to issue private summonses: the material submitted did not disclose a prima facie case for either aiding and abetting or attempt to pervert the course of public justice; mere omission by the proposed defendant could not establish perverting the course; the magistrate had no duty to obtain CCTV or summon management under ss 21–22 in the circumstances; and there was no breach of natural justice or reasonable apprehension of bias warranting recusal.
9 Apr 2015

SECURITIES AND FUTURES COMMISSION v. CHAN SHUI SHEUNG IVY

Citation

SECURITIES AND FUTURES COMMISSION v. CHAN SHUI SHEUNG IVY
Court

Court of First Instance
Case number

HCMA630/2014

The judge held that most of the SFC's proposed questions raised factual challenges rather than points of law susceptible to resolution by case stated; the case stated process must be reserved for clear errors of law or perversity. Consequently the court refused to direct inclusion of the detailed admissibility questions (Questions 1(a)–(e)) and other fact‑based points, but granted an order of mandamus under s112 requiring the magistrate to amend the stated case to include three specific legal questions concerning (i) whether no reasonable magistrate properly directed could have found that PME…
10 Aug 2005

CHOY BING WING v. THE CHIEF JUSTICE, JUDICIARY OF HKSAR, CHINA AND OTHERS

Citation

CHOY BING WING v. THE CHIEF JUSTICE, JUDICIARY OF HKSAR, CHINA AND OTHERS
Court

Court of First Instance
Case number

HCA125/2005

The claim was struck out because the magistrate acted within statutory powers to issue a bench warrant under s99, the action against the magistrate is barred or requires an express allegation of malice under s125 which was absent, Article 85 provides judicial immunity, s60 protects the arresting officer acting under a produced warrant, and the Commissioner is not vicariously liable and the Crown Proceedings framework was not followed; cumulatively the claim disclosed no reasonable cause of action and was an abuse of process.
19 Dec 2003

LAU WAI WO v. HKSAR

Citation

LAU WAI WO v. HKSAR
Court

Court of Final Appeal
Case number

FACC5/2003

The Court held that although a magistrate has power under s.109I to make a bind-over order without prior consent to the order itself, the recognizance must be entered voluntarily or enforced; and in this case the bind-over was quashed because the magistrate failed to give prior notice or opportunity to be heard, failed to inquire into means before fixing the sum, and the wording of the order lacked the requisite legal certainty (was too general and did not specify prohibited conduct).
10 Mar 1992

ATTORNEY GENERAL v. A PRINCIPAL AND PERMANENT MAGISTRATE

Citation

ATTORNEY GENERAL v. A PRINCIPAL AND PERMANENT MAGISTRATE
Court

Court of First Instance
Case number

HCMP301/1992

The magistrate exceeded jurisdiction because no plea was taken and there was no dismissal after a hearing; s.69(1) applies to dismissals or summary matters and does not authorize awarding costs in this serious indictable charge (rape) before trial commencement; no other statutory provision conferred power to make the order, therefore the costs order must be quashed.
16 Mar 1990

ATTORNEY GENERAL v. CHAN CHUN LAP AND OTHERS

Citation

ATTORNEY GENERAL v. CHAN CHUN LAP AND OTHERS
Court

Court of Appeal
Case number

CAAR2/1990

The Court held the sentences of one day and three months were wrong in principle and manifestly inadequate for convictions of possessing a forged travel document and unlawfully remaining; it quashed those sentences and substituted terms of 12 months imprisonment for each offender, endorsing the Court's guideline that 15 months could be appropriate after a guilty plea but applying accepted practice to impose 12 months; the Court also found no power to order immediate repatriation as part of sentence.
29 Jun 1988

THE QUEEN v. MOK DIP YAN

Citation

THE QUEEN v. MOK DIP YAN
Court

Court of First Instance
Case number

HCMA404/1988

A binding over under s.61 requires evidence from the proceedings from which it can be properly inferred that the individual poses a real risk of committing a future breach of the peace; absent such evidence the magistrate's order is unlawful and must be quashed.
5 Nov 1987

THE QUEEN v. LUK HON-SUM, PETER

Citation

THE QUEEN v. LUK HON-SUM, PETER
Court

Court of Appeal
Case number

CACC858/1987

The daily fine was quashed because the magistrate imposed a daily fine for a continuing offence without the charge having been amended to include the continuing period; although the judge had statutory power to amend under s27 (and s119(1)(d) on appeal) he declined to do so because of intervening, similar appellate decisions which had quashed daily fines; accordingly the substantive fine was upheld but the daily fine was set aside.
12 Oct 1987

ATTORNEY GENERAL v. YAU CHI KEUNG

Citation

ATTORNEY GENERAL v. YAU CHI KEUNG
Court

Court of First Instance
Case number

HCMA829/1987

A blanket rule refusing remands on first appearance and striking out for want of prosecution is an unreasonable exercise of discretion; remands may legitimately be granted to enable the Crown to obtain forensic certificates and decide venue, and each case must be remitted for further handling depending on the Crown's election.
13 May 1978

KWOK HUNG v. THE QUEEN

Citation

KWOK HUNG v. THE QUEEN
Court

Court of Appeal
Case number

CACC284/1978

The magistrate had statutory and common law power to convict of a lesser or alternative offence proved at trial by virtue of s.149(2) Crimes Ordinance and s.51(2) Criminal Procedure Ordinance (supplemented by common law authority such as Bostock); s.27 Magistrates Ordinance governs a distinct situation of amending charges and protecting procedural rights but does not preclude the magistrate, when satisfied on all evidence that another offence is proved, from convicting without formal amendment. However, on the facts the conviction was unsafe because the magistrate accepted evidence amounting…