LEUNG KWOK YIM v. THE QUEEN

CACC000230/1980

Headnote: Failure to enter into recognizance to prosecute appeals, S. 114(c) Magistrates Ordinance Mandatory.

 

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 236 OF 1980

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BETWEEN
	POON KWOK	Appellants
	CHEUNG KAI-HUEN
	AND
	THE QUEEN	Respondent

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IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL No. 230 OF 1980

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BETWEEN
	LEUNG KWOK YIM	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Silke, J. in Court

Date of Judgment: 10 April 1980

 

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JUDGMENT

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1. In both of these appeals the appellant failed to comply with the provisions of section 114(c)(i) of the Magistrates Ordinance CAP 227 in that they did not enter into a recognizance to prosecute their appeals within the statutory 10 days after the giving of notice of appeal - or at all.

2. In Li Ka Shu v. The Queen [1964] H.K.L.R. 410 Blair-Kerr J. held that this requirement was mandatory and, at p. 413 said: -

"Appeal is the creature of statute and it is important that the rules governing appeals should be complied with. The requirements prescribed by such sections as ss. 103, 108, 112(a) and 112(c) [now 114(c)] are mandatory"

and he cited as his authority Lam Kuen v. The Crown (1954) 38 H.K.L.R. 216 which in turn followed a decision of Gould J. in Criminal Appeal No. 32/47.

3. While a Magistrate has power to extend the period in which an appeal should be lodged under the provisions of s. 114(a) and s. 114A of the Ordinance, this power is not given by statute in respect of the time limit set for the entry into the recognizance.

4. In the event I held myself to be without jurisdiction to entertain these appeals and they were dismissed.

5. Before I leave the matter there is one point I should like to make. And it is this: in the second, and unrepresented, appeal there appears on the file the actual form of a recognizance properly typed out but which was not signed.

6. It is suggested, and I am aware how busy the staff of the Magistracies are, that when a person gives a proper notice of appeal he should be at the same time be given the recognizance form, typed or written out, so that he can, then and there, be made aware of the necessity of observing the mandatory requirements of s. 114(c)(i).

	(William Silke)
	Judge of the High Court

 

Representation:

Mr. R.K. Sujanani (Robin J. Oliver) for appellant

Mr. Moorfoot for Crown