HKSAR v Tin's Label Factory Limited
5 December 2008, Court of Final Appeal, Hong Kong
Background
The question for the Court of Final Appeal (Li CJ, Bokhary PJ, Chan PJ, Ribeiro PJ and Lord Woolf NPJ) was what should be regarded as the final record of the judge's decision on a magisterial appeal. The question is important under the "principle of finality" (i.e. the parties should know where they stand) and turned on the interpretation of s. 119(1)(f) and s. 35(1)3 of the Magistrates Ordinance.
The respondent company was convicted at the Magistrate Court under the Factories and Industrial Undertakings Ordinance on 11 June 2007 and appealed to the high court. On 28 September 2007, the high court judge, Pang J, quashed the conviction orally, stating that the reasons would be handed down later. Seven months later, the judge handed down a written judgment (the "1st written judgment"), paragraph 1 of which stated that "the following are my reasons for dismissing the appeal"! The 1st written judgment dealt with and dismissed all grounds of appeal.
A hearing was held the same day after counsel for the respondent wrote to the judge's clerk. The outcome was that the judge withdrew the 1st written judgment and handed down a second written judgment which contents were essentially the same as the 1st written judgment save that the 1st paragraph now stated "the following are my reasons for allowing the appeal..." and paragraph 21 which gave the only reason for allowing the appeal.
Judgment
The Court of Final Appeal ruled that it was the entry by the magistrates' clerk in the register kept under s. 35(1) which should be regarded as constituting the final record of the judge's decision. Under the "perfection rule", until the point of time when an order is finally recorded, appeal judge has the power to recall and vary a decision it had earlier made.
The judgment refers to authorities such as R v Cross [1973] 1 QB 937, R v Au Pui Kuen, R v Wong Tak Sing [1990] 1 HKC 155, R v Wong Siu Chung, Secretary for Justice v Mak Wai Hon [2000] 1 HKC 498, HKSAR v Ho Tung Man [1997] 3 HKC 375, Secretary for Justice v Yuen Lit Ping [1999] 1 HKC 476, HKSAR v Chu Kin Yuen [2008] 1 HKLRD 405, HKSAR v Agbayani, R v Lau Kwok Wah [1980] HKLR 24 and HKSAR v Yeh Tsann Tarng.
The Court of Final Appeal also said that the decisions in R v Chan Wai Keung [1965] HKLR 815 (decided before R v Cross) and R v Man Lim Ping [1985] 1 HKC 61 should not be regarded as authority against the perfection rule discussed above.
Directions
Li CJ also gave some a number of useful directions including that the parties must be afforded an opportunity to be heard and that, obviously, a judge should only give an oral decision, with reasons to be given later, if he is sure about the decision!
The "slip rule" and "residual discretion"
The judgment also discussed the "slip rule" and "residual discretion" and made clear that they are distinct from the power to alter an order before perfection. The former, as the name suggests, is used to ensure that an order "accurately reflects what the court had originally intended" and the latter, explained in Taylor v Lawrence [2003] QB 528, can be used to alter a decision even after its perfection, but is a "wholly exceptional jurisdiction and the occasions when it may properly be invoked would be extremely rare".
