My friend told me the jurisdiction issue was a review hearing under S.104 Cap 227 Magistrates Ordinance. If that was the case, then Cherry Hui, the deputy magistrate, had jurisdiction to award cost under S.11 Cap 492 Costs in Criminal Cases Ordinance.
That said, we go back to the fundamental jurisdiction issue. What did Douglas Kwok, the defence counsel making the application, intend to achieve? I am afraid the way the issue was raised was ill conceived. If Kwok really wanted to take issue on the jurisdiction and opined that Hui was ultra vires because of the invalidity of appointment, he should not apply for a review. He should simply say Hui had to discharge herself and nullify the whole proceeding.
Kwok advanced the argument pointing at the very question of Hui having a faulty qualification to sit on the bench but on the other hand he asked her to exercise her power under S.104 Cap 227 to make a judicial decision. The entire thing was so paradoxical. Let us look at the wordings of S.104(1)
(1) Within 14 clear days after the determination in
any manner by a magistrate of any matter which he has power to determine in a
summary way it shall be lawful for either party thereto to apply to the
magistrate to review his decision in the matter.
S.104 clearly states "he has power to determine". If Hui has no power to determine, how can it be a review?The only thing Kwok could do at the magistracy level was to ask Hui to discharge herself and ordered trial de novo. What benefit did the acquitted defendant get then? If Kwok succeeded, did he want his lay client to be re-tried by another magistrate?
Kwok should have applied for judicial review in the High Court and sought relief
1. an order of habeas corpus that the defendant was unlawfully detained for psychiatric report,
2. an order of certiorari to quash all the orders made by Hui because of the defective appointment, and
3. a declaration that Hui's appointment was null, void and of no effect.
I do not like knee jerk and lukewarm approach in law.