ATTORNEY GENERAL v. TAM KIN-HUNG

CAAR000015/1985

IN THE COURT OF APPEAL

Application for Review No. 15 of 1985

BETWEEN

ATTORNEY GENERAL   and   TAM KIN-HUNG

Coram:  Hon. Li, V.-P., Kempster, J.A. & Power, J.

Date of Hearing: 6th December 1985

Date of Judgment: 6th December 1985

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JUDGMENT

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Kempster, J.A.:

1. On 10th May of this year at Causeway Bay Magistrate's Court Miss Morrison, who on 23rd April had convicted TAM Kin-hung of theft contrary to sections 2(1) and 9 of the Theft Ordinance, fined him HK$2,000. Previously Tam had paid HK$10,900 into Court to compensate the victims.

       

2. The circumstances of the theft, described in Tam's cautioned statement made on 14th February, show that he was a party to stealing substantial sums of money from fishermen, being nationals of the People's Republic of China, who were in Hong Kong waters and, indeed, was guilty of conduct which can only be described as a disgrace to the Customs and Excise Department in which he was employed and on whose behalf he was ostensibly acting at the material time.

3. On 2nd October 1985 the Attorney-General applied for leave to file an Application for Review of Tam's sentence, pursuant to section 81A of the Criminal Procedure Ordinance, out of time. That application, when carefully read, envisages the procedural difficulties to which we shall shortly advert and which, in analogous form, arose on 25th October when the conviction of a co-accused, CHAN Tai-wai, was quashed in the High Court and an order made for a trial before a magistrate de novo pursuant to section 118(1)(f) of the Magistrate's Ordinance.

4. On 9th November 1985 Huggins, V.-P. not only gave leave pursuant to sections 81A(1) and 83Y(2)(h) but purported to give the Attorney-General leave to file his application out of time pursuant to section 81A(a)(c). In the event, it does not fall to us to determine whether a single judge had power to extend time or not.

5. On 13th November the Attorney-General filed his application for review and on 21st this day was fixed for the hearing.

6. On 2nd December Tam, the respondent to the Attorney-General's application, by his solicitors, issued a Notice of Motion seeking the dismissal of that application without a hearing on the merits on several grounds only the first of which need concern us. That ground was:

"That the Applicant (represented by the Attorney General) has failed to comply with Section 81A(2)(b) read with Section 2A(a) of the Criminal Procedure Ordinance. "

Section 81A provides that:

" (1)	The Attorney General may, with the leave of the Court of Appeal, apply to the Court of Appeal for the review of any sentence on the grounds that the sentence is not authorized by law, is wrong in principle or is manifestly excessive or manifestly inadequate.
(2)	An application under subsection (1) shall -

(b)	be accompanied by the documents, or copies of the documents, specified in subsection (2A);"

So we turn to subsection (2A):

"The following documents are specified for the purpose of subsection (2)(b) -

 

(a)	in the case of a sentence passed by a magistrate, a statement of the facts found by him or admitted before him and of the reasons for the sentence;"

7. The magistrate in question has resigned and left Hong Kong. She has been asked by the Clerk to her Court and by the Registrar of the Supreme Court to furnish a statement of the facts found by her and of her reasons as required by section 81A. Indeed, subsection (2B) provides that:

"The documents, or copies of the documents, specified in subsection (2A) shall be delivered to the Attorney General within 7 days of a request therefore being made in writing to the magistrate - who passed the sentence - "

She has not complied with either request and it is not anticipated that she will.

8. It is not for us to comment on the behaviour of this former magistrate but it is clear and conceded that the absence of the mandatory statement renders the Attorney-General's application for review unsustainable. The respondent's Notice of Motion constitutes a true bill.

9. Accordingly we grant the material relief sought by the respondent and dismiss the application for review.

(M. Kempster) Justice of Appeal

Representation:

Mr. Brian Van Buuren (Chan, Lau & Wai) for applicant

Mr. I.G. Cross, S.A.C.P. for D.P.P./respondent