Hong Kong Case Law: Decisions & Judgments

Topic

Magistrate powers

Legal area

Court

26 Aug 2009

PHILIP P. H. WONG, KENNEDY Y.H. WONG & CO (a firm of solicitors) v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION

Citation

PHILIP P. H. WONG, KENNEDY Y.H. WONG & CO (a firm of solicitors) v. THE COMMISSIONER OF THE INDEPENDENT COMMISSION AGAINST CORRUPTION
Court

Court of Appeal
Case number

CACV272/2008

Section 10B of ICACO does not require conditions designed to protect legal professional privilege to be endorsed on the face of a warrant as a precondition of validity; a magistrate does have a judicial discretion to impose conditions on execution where reasonably necessary, but the absence of endorsed conditions or reliance on undertakings does not, by itself, render the warrant invalid. Seizure is governed separately by s.10C and magistrates cannot authorize unconditional seizure under s.10B. Failure to disclose material facts remains a ground for quashing a warrant.
25 Sept 2003

HKSAR v. LAI YUN KWAI AND ANOTHER

Citation

HKSAR v. LAI YUN KWAI AND ANOTHER
Court

Court of First Instance
Case number

HCMA742/2003

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.
28 May 1997

R. v. LUI KAM MING

Citation

R. v. LUI KAM MING
Court

Court of First Instance
Case number

HCMA1532/1996

The appeal was allowed because there was a real doubt whether the appellant was given a full opportunity to cross-examine the prosecution witness on inconsistencies in prior statements, rendering the conviction unsafe; additionally, the magistrate had no power to impose the separate $200 fine for late arrival, so the conviction and both fines were set aside.
26 May 1992

RE THONGCHAI SANGUANDIKUL

Citation

RE THONGCHAI SANGUANDIKUL
Court

Court of First Instance
Case number

HCMP802/1992

The magistrate properly confined himself to the admissible evidence and made a prima facie finding justifying committal; the Attorney‑General's Guidelines do not impose a duty of disclosure on extradition magistrates at committal and the magistrate lacks power under the treaty and extradition legislation to order the general disclosure sought; alleged nondisclosure and inclusion of inadmissible material did not render the committal unfair or void, therefore both the habeas corpus and judicial review applications fail.
12 Oct 1989

THE QUEEN v. YAU LEE CONSTRUCTION CO LTD

Citation

THE QUEEN v. YAU LEE CONSTRUCTION CO LTD
Court

Court of First Instance
Case number

HCMA733/1989

The magistrate erred as a matter of law by purporting to amend/substitute charges under s.51(2) Cap.221 rather than under s.27 Cap.227, by failing to read the substituted charges and obtain a plea, and by wrongly finding no suspended scaffold when evidence supported that it was a suspended scaffold and that the appellant failed to ensure its safety; accordingly the appeals are allowed and fines set aside.
26 May 1989

THE QUEEN v. WONG WAI-HON

Citation

THE QUEEN v. WONG WAI-HON
Court

Court of First Instance
Case number

HCMA557/1989

Failure by the magistrate to give appellants the opportunity to make representations relevant to whether 'special reasons' existed before making forfeiture orders deprived them of procedural fairness and rendered the forfeiture orders defective; the appeals are allowed and the forfeiture orders set aside.
23 Aug 1988

THE QUEEN v. HUANG CHEN SHENG

Citation

THE QUEEN v. HUANG CHEN SHENG
Court

Court of First Instance
Case number

HCMA704/1988

The Hospital Order was quashed because the magistrate was not properly satisfied that the appellant had committed the act or omission: reliance on psychiatric reports' hearsay, a non-evidential 'Brief Facts' document and the appellant's demeanour was insufficient. The proper procedure—prosecution evidence, cross-examination and opportunity for the accused to give evidence—was not followed, so the order could not stand.
13 Apr 1987

ATTORNEY GENERAL v. LAM YUK CHUEN

Citation

ATTORNEY GENERAL v. LAM YUK CHUEN
Court

Court of First Instance
Case number

HCMA178/1987

The magistrate erred in law by stopping the trial during the prosecution's evidence and dismissing the charges without allowing the prosecution to present its full case; consequently the appeal is allowed and the matter is remitted for re-hearing before another magistrate and the costs order is set aside.
2 Jul 1982

ATTORNEY GENERAL v. CHAN SHUI-LEUNG

Citation

ATTORNEY GENERAL v. CHAN SHUI-LEUNG
Court

Court of Appeal
Case number

CACC470/1982

A magistrate is not entitled to decline to proceed on a charge proved before him on the ground that a different statute would have been more appropriate; prosecutorial discretion to select charges is for the Attorney General alone; under s.33(1) Public Order Ordinance proof that an article is suitable for causing injury suffices and intention to use it need not be proven, though intention is relevant to lawful authority or reasonable excuse; on the proved facts the magistrate erred in dismissing the charge.
15 May 1979

HO CHUN WAH v. THE QUEEN

Citation

HO CHUN WAH v. THE QUEEN
Court

Court of Appeal
Case number

CACC383/1979

The court held that section 45(1) permits a magistrate to make a hospital order in the course of trial when the person 'is charged', and therefore the magistrate may lawfully make the hospital order without recording a conviction; accordingly the recorded conviction must be set aside.