266
Case Note
[2003] J.A.L.
and ordered their release. But the Legal Department de®ed the court order.
Instead on 29 October the Department brought the defendants before the
same Magistrate charged with two offences.4 The issue arose whether their
continued detention in breach of the bail order amounted to a violation of the
defendants' right to the presumption of innocence. The magistrate answered
that question in the af®rmative and, as a remedy, he stayed the proceedings
and ordered the release of the defendants.5 On appeal by the Legal Depart-
ment the Court of Appeal (MOFAW, C.J., Moutchia and Tume, J.J.)
reversed the ruling of the magistrate, set aside his order and ordered a retrial
of the defendants.
In order to see more clearly the fallacies in this judgment, it is helpful to
note the grounds of appeal and the way in which the Court of Appeal dealt
with them. There were three main grounds of appeal.6 First, that the magis-
trate ``failed to arraign all the defendants''. Second, that the magistrate ``did
not give any opportunity to the prosecution to call any of its witnesses to prove
its case''. And, third, that the magistrate ``erred in dismissing the case under
section 301(1) [of the Criminal Procedure Ordinance] when no trial was
conducted.'' All three grounds of appeal complained in essence that the
magistrate did not proceed with the trial as normal and instead stopped the
proceedings before it got off the ground.
It was argued for the respondents that in effect the issue for the Court of
Appeal to decide was whether the magistrate's decision to stop the proceed-
ings and deprive the prosecution of the opportunity to prove the guilt of the
defendants was wrong in law. To that question, counsel for the respondents
contended that the answer is clearly in the negative. Counsel relied on
Connelly v. Director of Public Prosecutions7 for the proposition that the court has
general and inherent powers to protect its process from abuse. The magistrate
in this case, it was argued, simply stopped the proceedings in order to protect
the process of the court from abuse by the prosecution who had been involved
in unlawful conduct by disobeying a court order and detaining the defendants
in contravention of the law. To put it another way, the Legal Department
committed an illegal act and violated the human rights of the defendants by
the continued illegal detention. The Department then sought to use or rather
abuse the process of the court as a means to continue to violate the human
rights of the defendants. No court should allow its process to be abused in this
way. The jurisdiction to stay proceedings exists to prevent such abuse. The
magistrate, it was argued, was right to exercise that jurisdiction.
The Court of Appeal rejected the submissions of the respondents and found
for the prosecution on all the grounds of appeal. The court took the view that
the magistrate should have allowed the trial to continue in the normal way in
4 One, for unlawful assembly under s. 231 of the Penal Code (punishable by imprisonment for a
period between 15 days to 6 months and with a ®ne of from 5,000±100,000 francs CFA), and the
other offence was for failing to obey a prefectorial order, punishable under s. R 370(12) of the
Penal Code (imprisonment of from 5±10 days or a ®ne of from 4,000±25,000 francs or with both
imprisonment and ®ne). This second offence is a minor offence. It is classi®ed by the Penal Code
as a ``simple offence of the fourth class''.
5 The Magistrate did so under s. 301(1) of the Criminal Procedure Ordinance.
6 There was a fourth ground of appeal, that the magistrate erred in holding that an appeal does
not lie against an interlocutory decision, but that was not a crucial part of the case and this note
will not go into it.
7 [1964] AC 1254, 1354.