FOK SIU WING v. SECRETARY FOR JUSTICE

CACV 105/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 105 OF 2013

(ON APPEAL FROM HCAL NO. 154 OF 2012)

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REASONS FOR JUDGMENT

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Hon Lam VP (giving the Reasons for Judgment of the Court):

1.  On 26 November 2013, after hearing submissions, we allowed the appeal and set aside the leave granted by P Li J [“the Judge”] to the Applicant for his application for judicial review. We now give our reasons.

2.  The factual background to the matter can be found at para 2 of the Reasons for Decision of the Judge.  We respectfully adopt the same here:

“a. The applicant was convicted of ‘Gambling in a gambling establishment’ on his own plea on 20 July 2012. He was fined $500.

b. The applicant was unrepresented in the proceedings. He informed the presiding Magistrate that he would plead guilty but he had not gambled. The presiding Magistrate asked the summary of facts to be read out. After the applicant agreed with the summary of facts, the presiding Magistrate convicted the applicant.

c. The applicant obtained the official transcript around 29 August 2012, there was no record of what he said in court. He complained to the Chief Magistrate alleging that there was an omission in the transcript. The Chief Magistrate replied on 8 October 2012 stating that he had checked the audio record but found no omission in the official transcript.

d. About 27 September 2012, the applicant was granted legal aid. Counsel was assigned on 24 October 2012 for judicial review.

e. In the meantime, the applicant obtained a tape of the audio record which confirmed that he had told the presiding Magistrate that he had not gambled, however, this was not in the official transcript.

f. The applicant made an ex parte application for leave to judicial review the conviction on 23 November 2012. Leave was granted on 17 December 2012 by this court.

g. The Secretary for Justice applied to set aside the ex parte leave. This court refused the application on 5 February 2013.

h. The Secretary for Justice applied leave to appeal to the Court of Appeal on 24 March 2013.”

3.  We should add that in the facts agreed by the Applicant, there was a reference to the police officer seeing that the defendants, including the Applicant, was playing mahjong at the table at the material time.  It also contained a reference to the denial of the charge by the Applicant in his cautioned statement, claiming that he was only sitting at the table and the gambling had not been started.  Whether the Applicant’s agreement to these facts was sufficient to support his conviction is not a matter for this court in this appeal.

4.  The appeal is against leave being granted for an application for judicial review to challenge the conviction.  The crucial issue is whether leave should be granted to the Applicant to apply for judicial review whilst he could have challenged the conviction by way of appeal.

5.  It is not disputed that, subject to the time factor, the Applicant could have sought a review before the magistrate or appeal to the Court of First Instance against his conviction.  At the time when the Applicant applied for legal aid for the present proceedings, he was still within time to seek a review or to lodge an appeal against his conviction. Though he is now out of time even for an appeal, it is accepted that the court has the power to grant an extension of time.  Though he could not commit the hands of the prosecution, Mr Lee (appearing together with Mr Cheng on behalf of the Secretary for Justice) fairly accepted that it would be sensible for the prosecution not to oppose an application for extension of time in the special circumstances of this case.

6.  As submitted by Mr Lee, the power of the court in hearing an appeal under the Magistrates Ordinance Cap 227 [“MO”] is much wider than the court in exercising its supervisory jurisdiction by way of judicial review.  Under s 119(1)(d) of MO, a judge hearing the appeal can “confirm, reverse or vary” the decision of a magistrate instead of directing the case be heard de novo.  The judge may also exercise any power which the magistrate might have exercised.

7.  Another important point is that there is a two-tier appeal for judicial review applications to the Court of Appeal and then to the Court of Final Appeal whilst the decision of a judge hearing a magistracy appeal is only appealable in limited circumstances to the Court of Final Appeal.

8.  Though the Court of First Instance does have jurisdiction to entertain judicial review in respect of decisions of a magistrate, the discretion to entertain such application should only be exercised in exceptional circumstances.  Mr Lee has cited several authorities for this proposition.  As it is not really disputed by Mr Grossman SC (appearing together with Mr Fan for the Applicant), we can limit ourselves to the citation of a few authorities.  The first one is the judgment of Hartmann J in Chow Shun Chiu v HKSAR HCAL 763 of 2001, 24 July 2001.  After reviewing a line of cases, the learned judge said at para 34,

“The long-established supervisory jurisdiction of this court will, of course, be used when the need arises to ensure the integrity of proceedings in the magistrates courts; that is, when matters go to the fundamental legality of the process, where, for example, it is alleged that the courts are acting without jurisdiction, that an abuse of power is being perpetrated or that the proceedings constitute a breach of natural justice. But in the present case, I am satisfied that no such claim is in substance being made. It would be wrong, I believe, for this court, in practice to allow itself to become a collateral court of appeal to which recourse may be had by obtaining in each instance a stay of proceedings. That would add to delay, add to costs, result in a proliferation of proceedings and rather than ensuring the integrity of the criminal process would go towards undermining it.”

9.  In Re Ko Kit [2008] 4 HKC 323, Stock JA (as he then was) said at para 28:

“As we pointed out in Yeung Chun Pong para 62, it is trite that judicial review is a remedy of last resort and that where another adequate remedy is provided that alternative should, save in the most exceptional circumstances, be used. In the passages that followed that reminder, we emphasised the public interest in ensuring that charges, once before a court, should be tried and that there was built into the system a prescribed appeal mechanism that did not envisage collateral challenge. We referred to authorities in other jurisdictions to the same effect, including R v DPP ex p Kebilene [2000] 2 AC 326, in which it was said that there was a strong presumption against entertaining a judicial review application where the complaint could be raised within the criminal trial and appeal process, and that such satellite litigation should rarely be permitted in the criminal justice system. …” (our emphasis)

10.  The Judge also recognised that the supervisory jurisdiction of the court should only be exercised in exceptional circumstances notwithstanding the availability of alternative remedy.  He however found that there were exceptional circumstances by reference to the following factors listed at para 6 of his Reasons,

“6.   In considering this application, I note the following events in particular:

a.   The applicant was unrepresented in the Magistrate Court.

b.   He indicated during the proceedings that he had not gambled.  This was consistent with his response under caution as set out in paragraph 3 of the summary of facts.  Despite this equivocal plea, he was convicted and fined.

c.   For reasons unknown, the official transcript had not revealed the relevant exchange between the presiding Magistrate and the applicant.

d.   The applicant complained but the Chief Magistrate had not spotted the omission in the official transcript.  Had the error been discovered, the applicant might be alerted to appeal out of time.

e.   The applicant was granted legal aid for judicial review.  No one advise him to appeal out of time.

f.    It was later confirmed that there was an omission in the official transcript.  Counsel was assigned to pursue the judicial review.  The applicant was not advised to appeal out of time.”

11.  The Judge was of the view that because of these matters, the failure of the Applicant to exercise his right of appeal should not weigh against him and it would waste time and costs to require the Applicant to proceed by way of appeal instead of judicial review.

12.  With respect, the Judge was plainly wrong in so holding.  In our judgment, the matters alluded to cannot constitute exceptional circumstances warranting the engagement of the supervisory jurisdiction by way of judicial review as opposed to challenging the conviction by way of appeal. Matters listed as (a) and (b) are common to many cases where unrepresented litigants challenged their convictions by way of appeal on account of equivocal pleas.  Matters listed as (c) to (d) are irrelevant as far as whether the Applicant himself should have proceeded by way of appeal or judicial review. Matters listed as (e) and (f), taken to the highest, are failings on the part of those advising the Applicant.  They cannot provide justification for exceptional treatment of the Applicant.

13.  The loss in time and costs was the consequence of the Applicant (or perhaps those advising him) choosing to proceed by the wrong route to challenge his conviction.  This cannot provide a ground for exceptional consideration.

14.  The Judge referred to Pun Cecil v Kowloon City Magistracy HCAL 58 of 2006.  The facts of that case were unusual. Most importantly, the question as to whether the matter should proceed by way of judicial review was conceded.  It cannot assist the Applicant in the present case.

15.  Mr Grossman submitted that it is an exercise of discretion by the Judge and this court should not interfere.  We accept that this court should not interfere with the discretion to grant or refuse leave simply because this court took a different view of the matter.  However, this is a case where we are satisfied that the Judge was plainly wrong in the exercise of his discretion.  He should not have proceeded on the basis that there are exceptional circumstances in this case.  In granting leave in this case, the Judge had acted against the well settled principle set out at paras 8 and 9 above.  In such circumstances, this court is entitled to intervene.

16.  For the above reasons, the appeal was allowed and the leave to apply for judicial review was set aside.