The question posted is about venue of trial. The law involved is the Second Schedule, Magistrates
Ordinance, Cap 227 Laws of Hong Kong.
I quote the original questions from the email,
I have looked at those ordinance, but its kind of confusing me a bit. Take an example, When i did the exam pass paper, one of the questions was about a person throwing corrosive fluid to hurt others. I know this offender is liable under s29 throwing corrosive fluid, with intend to do GBH. This is the offence triable upon indictment and shall be liable to imprisonment for life. But when I looked at the 2 Schedule, Part 3 MO, it says DC can hear any indictable offence not listed in 2 Sch , PArt 3 MO. In 2 Sch, Part 3 Pont 2, any offence which is punishable with imprisonment for life except throwing corrosive fluid with intend to do GBH.(Does ''except'' mean that DC can hear this case??)
And I know that only CFA can hear any indictable offence listed in second Sch, part 3, . In second Sch, part 3, point 2: any offence which is punishable with imprisonment for life except throwing corrosive fluid with intend to do GBH ( Does 'except' mean that CFI cannot hear this offence?it does not make sense to me!)
The answer to the corrosive question is that CFI should be the court to hear this case. Am I misunderstanding the second sch, part 3?? If I have not made my question prefectly clear, please let me know, i will rewrite it. I have attached second sch, part 3.
2.Another case like this
Jim Chan and his younger brother Joe Chan approached a light goods vehicle parked on the roadside outside New Town Plaza in Sha Tin. They walked around the vehicle then kicked the offside door twice with their legs. They also smashed three of the windows. The vehicle subsequently required repairs costing $26,000. A police officer happened to be on duty nearby. He witnessed their actions and arrested the brothers for criminal damage, contrary to section 60(1) and punishable under section 63 of the Crimes Ordinance
s63 says A person guilty of any other offence under this Part shall be liable on conviction upon indictment to imprisonment for 10 years.
when I was doing this question, I doubted, because up to 10 yrs. Well, I just wonder how you can be sure how many years they will be sentenced and in turn picking the right court, since MC 3 yrs, DC 7 yrs ?the answer to the above criminal damage is MC. For professional lawyers, they surely know MC, but for student, its difficlut to determine either MC or DC when facing the sentence like this up to 10 years.
Bill Siu's reply
Your
question can be divided into 2 parts. The first part is jurisdiction and the
second part is selection of venue. The first part is pure statue
and the second part is sentencing tariff from appeal precedents and reasonable
expectation by the prosecution as the like sentence will be.
Jurisdiction is of fundamental importance. The prosecution is bound by the statue and does not have the free will to decide which court to go to. Just like your question posted, the power comes from Second Schedule, Cap 227.
What
you have to do is to look at the list of offences in the Second Schedule and
the empowering and triggering sections in the Magistrates' Ordinance. Sections 91 and 92 Cap.227
empower magistrates to deal with indictable offences with the exception of
offences in Part I Second Schedule (I will disregard the power of special
magistrate and concentrate on that of the permanent magistrate’s for brevity of
discussion here). What will confuse you is apparently the use of double
negative in the statue. The double negative comes from the word “except”. It
first appears in Section 92
Whenever any person is accused before a
permanent magistrate of any indictable offence except an offence specified in Part I of the
Second Schedule…
When
reading in conjunction with Part I of Second Schedule,
2. Any offence (except
an offence against section 10 or 12 of
the Theft Ordinance (Cap 210), or an offence against Part VIII of the Crimes Ordinance
(Cap 200)) which is punishable with imprisonment for life.
When
the double negative is read together, it becomes a positive. That means, in
this instance, the magistrate has jurisdiction to try the case. If you look at
Section 10 of the Theft Ord, you can see the charge is Robbery which is liable on
conviction upon indictment to imprisonment for life. That is why robbery cases
can be dealt with in magistrate’s court if the nature is not very serious. This
will help you understand more easily. The rule is double negative makes a
positive just like mathematics.
The
general principle is a magistrate cannot try an offence which carries death
penalty or life imprisonment and then you have to see if there is any
exception. The exceptions are listed out in Part I Second Schedule. The
exceptions in Part I empower the magistrates to deal with the
offence. Part I Second Schedule covers a wider range of offences than Part III,
analogous to a universal set and a subset. So when a magistrate has no jurisdiction
to deal with offences mentioned in Part I, he does not have jurisdiction to
deal with offences contained in Part III because Part I is inclusive of Part
III. There are more exceptions in Part III which means a District Judge has
wider power and can deal with more offences than a magistrate. For instance,
Section 17 (Wounding with Intent) Cap 212 can be dealt with by a District Judge
but not a magistrate.
The
jurisdiction of a District Judge comes from Section 75 Cap 336 District Court
Ord. The interpretation of Section 75 Cap 336 is just like Section 92 Cap 227.
When you see a double negative situation, it means the District Court has
jurisdiction to deal with the offences. If you see it this way, there will not
be any confusion. One more thing to remember is any offence triable summarily
only standing alone can only be tried in the magistrate court unless it is brought alongside an indictable offence .
On the contrary, the magistrate can try any indictable offences not
listed in Part I Second Schedule with the consent of the prosecution (S 94A Cap
227).
The
question you asked in your email about the Throwing Corrosive Fluid with Intent
to do GBH (S29 Cap 212) is an exception in Part III Second Schedule. So the
District Judge can deal with it and of course CFI can deal with it too but a magistrate
cannot because it is not an exception in Part I Second Schedule.
For
the second part of your question about the selection of venue, it is true that it
is difficult for an inexperienced person to select the correct venue. If you are not familiar with the sentencing tariffs, you cannot
make the right choice. Look at the example you gave about the criminal damage
of the car. Use a common sense approach instead of being overwhelmed by the maximum sentence can be
imposed. The repair cost for the damage to a Corolla may be $20,000 but a
similar damage to a 7 series BMW may cost $200,000. The act itself is only a
few kicks or using a pole to hit the bonnet or smash the windscreen. The cause
can be a road rage resulting in a momentary fit of anger instead of a
well-planned premeditated act. What sentence will a court pass? I should say at most a few months’
incarceration. How about stealing a few items from the supermarket? Theft (S.9
Cap 210) carries a maximum of 10 years’ imprisonment. The normal sentence for
the first offender is a fine of a few hundred dollars. So don’t be misled by
the maximum sentence.
What
you can do to acquire more knowledge about the tariff is to read the appeal
judgments or read the court news in the newspaper.
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