刑事檢控科各律師/高級律 - Department of Justice

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16 could not be taken to refer only to witnesses. It was possible that a number of persons committed the offence together. According to the magistrate’s line of reasoning, if a person created a disturbance in the public gallery and a witness joined in, these two persons could not be jointly charged under s 17(c) but would have to be dealt with separately. This was inconsistent with the provisions of s 17(c). It seemed that the magistrate’s analysis focused only on subsections (a) and (b) from which inferences were drawn but ignored subsection (c) per se; (5) Although Mr Justice Woo made no mention of s 8 in the judgment of HKSAR v Leung Kwok-hung, the court agreed that there was no need for the judge to discuss the other provisions one by one. As there was no significant difference between the basic facts of the two cases, the magistrate should have followed the precedent as a matter of legal practice. The magistrate’s handling of this case deviated from the basic common law principle of stare decisis. The previous case was binding upon the magistrate; (6) Both s 8 and s 17(c) were applicable to the conduct of the Respondents and the two charges were not mutually exclusive. The prosecution’s choice of s 17(c) was obviously based on the consequence brought about by the Respondents’ conduct. The prosecution did not err in law. The major difference between the two charges lay in difference between the consequences of conduct, which also explained the substantial difference in maximum penalties; (7) Even if s 17(c) was unclear in its structure or wording, the magistrate should not have interpreted and applied the provisions in such a narrow sense. The provisions were intended to safeguard the dignity and efficiency of the working environment in the Legislative Council. That was not to say that other people were not allowed to express their views, but if the ways and means of their expression caused interruptions, the prosecution could institute a charge under the more severe s 17(c); (8) For the above reasons, the court’s answer to the first question was ‘yes’ - the magistrate erred on a point of law; (9) The questions of law involved in the present case were in fact rather straightforward but the magistrate had misinterpreted the law. If the case was remitted to the magistrate, it might cause injustice to the Respondents. Since the questions had been clarified, it would not be necessary to remit the case to the magistrate or to order a retrial. This, however, should not be taken to mean that the Respondents’ conduct on that occasion was to be condoned. The dignity of the Legislative Council should be upheld and safeguarded.
17 Result - Appeal allowed. No consequential orders. Obiter - Even if the magistrate’s interpretation of s 17(c) were correct, he should, under the circumstances of the case, have invoked s 27 of the Magistrates Ordinance to amend the charge. The court did not think Poon Chau-cheong v Secretary for Justice [2002] 2 HKLRD 636, lent support to the Appellant’s submission that the magistrate should have kept on amending the charge until he could convict. Such was not the intent of s 27.
Page 1 and 2: To : All Counsel/Senior Law Clerks/
Page 3 and 4: 3 INDEX 目錄 A p. 4 - p. 17 第
Page 5 and 6: 5 問題以「案件呈述
Page 7 and 8: 7 存在。簡單來說 , 胡
Page 9 and 10: 9 17 條開宗明義地說 `
Page 11 and 12: 11 [English digest of MA 1270 of 20
Page 13 and 14: 13 were ordered by the Council or a
Page 15: 15 (1) The magistrate’s analysis
Page 19 and 20: 19 judge left for the jury’s cons
Page 21 and 22: 21 involved. This was reinforced by
Page 23 and 24: 23 C. CRIMINAL APPEALS/ AGAINST SEN
Page 25 and 26: 25 CA 126/2002 Stock & Yeung JJA Lu
Page 27 and 28: 27 (5) Insofar as A3 and A4 complai
Page 29 and 30: 29 good character, he would have re
Page 31 and 32: 31 Viscount Kilmuir LC saying at p
Page 33 and 34: 33 (1) The magistrate had taken int
Page 35 and 36: 35 供事發當時司機的
Page 37 and 38: 37 The police regarded the Appellan
Page 39 and 40: 39 E. MAGISTRACY APPEALS/ AGAINST S
Page 41 and 42: 41 adduced by the Appellant as to h
Page 43 and 44: 43 Held : (1) The law was as set ou
Page 45 and 46: 45 The magistrate refused to award

刑事檢控科各律師/高級律 - Department of Justice

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