LEUNG KWONG-FAI v. THE QUEEN

CACC000503/1982

Headnote

Appeal against interlocutory decisions of a Magistrate-

Want of jurisdiction.

IN THE SUPREME COURT	Criminal Appeal
	1982, No. 503

BETWEEN

	LEUNG KWONG-FAI	Appellant
	AND
	THE QUEEN	Respondent

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Coram: Jones, J.

Date: 28 June 1982

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JUDGMENT

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1. This appeal against interlocutory decisions made by a magistrate is misconceived.

2. The appellant filed three grounds of appeal viz:-

	1.	The magistrate had no power to review twice under Section 104 of the Magistrates Ordinance.
	2.	That there was no case to answer on a charge of theft.
	3.	That the magistrate had no power to review upon an application by the Crown after dismissal of the charge.

3. The appellant was originally charged with six offences. Three of these charges involved a co-accused.

4. The proceedings before the magistrate began with a voir dire in which the appellant challenged the admissibility of three cautioned statements made to the Police. At the conclusion of the voir dire the magistrate ruled all the statements to be inadmissible. The rest of the Crown evidence against the appellant was then called. After the closure of the Crown case against the appellant, and before hearing the evidence against the co-accused the magistrate at the request of the appellant's Counsel heard a submission of no case to answer. Admittedly he did so with some hesitation. Nevertheless this procedure was quite improper and should not have been adopted, However, all the charges against the co-accused were eventually dismissed with the result that at the end of the day no harm was done.

5. Having heard the submission the magistrate ruled that there was a prima facie case of theft of certain items included in the first charge of burglary which was preferred against the appellant alone. The magistrate then amended the charge from burglary to theft although the name of the victim was set out incorrectly. However, after a short adjournment the magistrate reversed his decision and held that there was no case to answer. He dismissed this charge, and the other five charges.

6. Subsequently the Crown applied to the magistrate for a review under s.104 of the magistrates Ordinance contending that the first charge of burglary should be amended to handling stolen goods. After hearing submissions the magistrate amended the charge to theft of two items. On this occasion the victim's name was correct. Before the case proceeded the appellant filed the present notice of appeal.

7. It is quite clear that the issues raised by the appellant in this appeal are interlocutory, They are not therefore the subject matter of an appeal. The position was ably summarised by Pickering J. in Newton v. Walker⁽¹⁾ where at page 321 he said:-

"................... I am fully satisfied, and hold, that it is not the intention of the subsection to permit appeals upon interlocutory matters arising in magistrates' courts. Were it otherwise appeals would proliferate like mushrooms at dawn to the impediment of the disposal of the work of the criminal courts."

8. The magistrate's rulings may of course be challenged at the appropriate time if the appellant is convicted.  However, this appeal must be dismissed for want of jurisdiction.

9. I order that the papers be returned to the magistrate for the case to proceed.

	(B.L. Jones)
	Judge of the High Court

(1)    (1875) H.K.L.R. 317

Representation:

Mr. Benjamin Chain (H.M. So & Co.) for Appellant Miss Crebbin, Crown Counsel, for Crown/Respondent.