ATTORNEY GENERAL v. GEORGE TAN AND OTHERS

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JUDGMENT

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Roberts, C.J. -

1. This is an originating summons, brought in the name of the Attorney General, seeking a declaration that the proper construction of section 81(2) of the Magistrates Ordinance (Cap. 227) permits an unusual procedure ("the alternative procedure") to be adopted in the course of committal proceedings.

Background

2. The five named defendants face two charges of conspiracy to defraud. A preliminary enquiry before a magistrate began on 1st October, 1984.

3. We are informed that the Crown expects to produce, in the course of the preliminary enquiry, about 4,700 documentary exhibits and to call over 140 witnesses. It is estimated that something like 10,000 pages of transcript of the evidence will have been produced by the end of the enquiry.

4. Although, as the evidence of each witness is given, it is recorded by shorthand writers, thus relieving the magistrate of the task of having to record it all in his own hand, it is estimated that the preliminary enquiry will last for several months.

5. On the first day of the hearing, counsel for the Crown, in an effort to save a substantial amount of time, suggested to the magistrate that an alternative procedure might be adopted which is, so far as our experience goes, a novel one in Hong Kong. Whether or not the method suggested is permissible in law depends upon the manner in which section 81(2) of the Magistrates Ordinance (Cap. 227) is interpreted.

6. Section 80 of Cap. 227 reads as follows -

7. The reference in section 81(1) to "in the same manner as is hereinbefore provided for the taking of the evidence of the complainant" is a reference to section 34 of Cap. 227, which deals with the trial of summary offences in the following terms –

8. The Crown sought, on 1st October, to persuade the magistrate that the alternative procedure should be followed. The magistrate ruled that the terms of Section 81(2) compelled him to read back the full transcript of the evidence of each witness to him in the presence of the accused.

9. On 12th October, the first witness concluded his evidence, which had lasted for five days and was contained in a transcript of about 700 pages.

10. Counsel for the Crown again urged the magistrate to adopt the alternative procedure. On 15th October, he delivered a short ruling, which adequately describes the alternative procedure, as follows -

"I propose to comply with Section 81(2) of Cap. 227. I am satisfied that compliance therewith can be effected by the witness reading a transcript of his evidence to himself in a room adjacent to this court. Then, in open court, signing a deposition, which I shall read over to him, in the presence of the accused, to the effect that the transcript annexed to that deposition is an accurate recording of his evidence.

 

        The transcript of evidence is made available to all defendants on a day to day basis and thus there can be no prejudice to them in that they and their counsel know the contents of the transcript deposed to by the witness."

11. The Crown sought a declaration that the magistrate was correct and that the alternative procedure is permissible in law.

12. All counsel conceded that the alternative procedure would be of benefit to them, and that they would not be prejudiced thereby. Nevertheless, counsel for the first and second defendants felt obliged to argue that the declaration sought should be refused.

13. We were asked to approve the alternative procedure, by a declaratory judgment. It must, of course, not be overlooked that we are not a Court of Appeal, but the High Court, constituted of three judges of the Court in accordance with a direction of the Chief Justice under Section 32(3) of the Supreme Court Ordinance (Cap. 4).

14. Nevertheless, the Crown was anxious that a declaratory judgment should be delivered, so that it could, if we so found, continue with the proposed procedure with at least some support from a superior court.

15. Two main issues lay before us -

16. However, when counsel for the Crown rose to address us in reply, he announced that, on a re-examination of the relevant sections of Cap. 227 and Cap. 8, he no longer felt able to argue that their wording permitted the alternative procedure to be followed. This accords with the opinion we had formed, that the alternative procedure was not permissible under the Ordinance.

17. He therefore conceded that, even if we found that there was in principle jurisdiction to make a declaration of the kind sought, it would not be open to us to do so in this instance, and that his application must fail. Nevertheless, he indicated that it would be of assistance if we felt able to rule on whether we had jurisdiction, and whether we agreed that the alternative procedure was not available.

18. Although the matter was not fully argued, we do not doubt that, both as a party to the proceedings and because of his wider responsibility in the public interest to ensure the due administration of criminal justice under the law, the Attorney General's interest is sufficient to entitle him to apply for the declaration sought, notwith-standing that he was seeking not a reversal of the second order made by the magistrate but a confirmation of its correctness.

JURISDICTION

Other Remedies

19. Counsel for the Crown argued that there are three methods available whereby a ruling made in the course of criminal proceedings can be subject to challenge; by the usual appeal procedures, by the process of judicial review, and by seeking a declaration.

20. So far as appeal procedures are concerned, he conceded that there is no provision in Hong Kong law for what might be called interlocutory appeals in criminal matters, to a higher court, to obtain a ruling as to whether or not the action of a magistrate or judge in the course of a criminal trial was correct.

21. As to judicial review, he agreed that this remedy is available during the course of a criminal trial before a magistrate only where it could be said that the magistrate had refused to assume jurisdiction or had acted without jurisdiction; and that there was no suggestion to that effect.

22. Assuming that the courts in general terms have a wide power to grant declaratory relief, can it be said that it still exists where specific remedies of another nature are provided; for instance, could it be said that the presence of a proper appellate procedure, or the availability of the remedy of judicial review, should be regarded as exclusive methods of obtaining relief, to the exclusion of the ability to seek a declaratory judgment?

23. The High Court of Australia in Sankey v. Whitlam(1), considered in some detail the scope of the declaratory judgment in Australia.

24. At p. 15, Gibbs, A.C.J., expressed his views on this aspect of the remedy as

follows -

"I am unable to agree that it is involved in this decision that the Supreme Court has no power to make a declaration which will affect the conduct of committal proceedings. The two sorts of relief are governed by different principles, and if the decision of a magistrate is immune from review by means of the prerogative writs it does not follow that a declaration cannot be made in relation to the subject matter of the proceedings ...... On the other hand, if prohibition does lie, a declaration can nevertheless be made, for the existence of an alternative remedy is no bar to the making of a declaration, but merely a matter to be weighed by the court in the exercise of its discretion."

25. We are aware of no authorities to a contrary effect, so far as jurisdiction is concerned, and therefore conclude that the availability of other remedies, unless the alternative of declaratory relief is excluded specifically or by necessary implication, is not ousted by the presence of such other remedies, though the availability of these will be of importance when the court is considering the exercise of its discretion.

When may declaratory orders be made?

26. Counsel for the Crown relied, in support of his contention that this form of relief is very widely available, on Imperial Tobacco Ltd. v. Attorney General⁽²⁾.

27. The Imperial Tobacco Company had launched an advertising campaign, part of which consisted of a scheme for the distribution of prizes by lot. The D.P.P., considering that the scheme was a lottery and illegal, had instituted proceedings, by the issue of summons, against the plaintiffs and four of its directors, who sought a declaration, by way of originating summons, that the scheme was lawful and did not contravene the provisions of the Lotteries and Amusements Act 1976.

28. Counsel for the Crown relied especially on a passage from the judgment of Lord Lane at p.750 -

"There is no doubt that there is jurisdiction to grant a declaration in these circumstances. Anyone is on principle entitled to apply to the court for a declaration as to their rights unless statutorily prohibited expressly or by necessary implication: Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [1960] A.C. 260 and Ealing London Borough Council v. Race Relations Board [1972] A.C. 342. There was no such prohibition here; but was the learned judge right to exercise his discretion as he did, as the Court of Appeal thought he was?"

29. Counsel has asked us to give these words the widest possible meaning, as entitling an interested party to seek a declaration on a point of law at any stage in criminal cases.

Exercise of discretion

30. However wide though the jurisdiction of the court may be to make declarations, it is a discretionary remedy which is clearly capable of abuse. It was argued, however, that the court could prevent such a wide power from being abused by its refusal to exercise its discretion, since this is a discretionary remedy, in cases in which it thought that it was wrong to have sought such a declaration.

31. As to this, Lord Lane said, at p.752 of the Imperial Tobacco Case⁽²⁾ -

"Where there are concurrent proceedings in different courts between parties who for practical purposes are the same in each, and the same issue will have to be determined in each, the court has jurisdiction to stay one set of proceedings if it is just and convenient to do so or if the circumstances are such that one set of proceedings is vexatious and an abuse of the process of the court. Where, however, criminal proceedings have been properly instituted and are not vexatious or an abuse of the process of the court it is not a proper exercise of the court's discretion to grant to the defendant in those proceedings a declaration that the facts to be alleged by the prosecution do not in law prove the offence charged."

32. The prevailing view of the English courts appears to be that their jurisdiction to make a declaration is unlimited, though subject to a careful exercise of their discretion. This approach is illustrated by Ibeneweka v. Egbuna⁽³⁾. At p. 224, Lord Radcliffe observed -

"The general theme of judicial observations has been to the effect that declarations are not lightly to be granted. The power should be exercised 'sparingly', with 'great care and jealousy,' with 'extreme caution,' with 'the utmost caution'. These are indeed counsels of moderation, even though as, Lord Denedin once observed, such expressions afford little guidance for particular cases. Nevertheless, anxious warnings of this character appear to their Lordships to be not so much enunciations of legal principle as administrative cautions issued by eminent and prudent judges to their, possibly more reckless, successors. After all, it is doubtful if there is more of principle involved than the undoubted truth that the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration. 'In my opinion,' said Lord Sterndale M.R. in Hanson v. Radcliffe U.D.C. [1922 2 Ch. 490] 'under Order 25, r.5, the power of the court to make a declaration, where it is a question of defining the rights of two parties, is almost unlimited; I might say only limited by its own discretion. The discretion should, of course, be exercised judicially, but it seems to me that the discretion is very wide.'"

33. That a liberal view of the scope of declaratory relief must be combined with a frugal exercise of the discretion to grant it is well expressed by Gibbs, A.C.J. at p. 16 of the Whitlam Case⁽¹⁾ -

"In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. The power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in aan appropriate case the use o the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and if wrongly used can cause the very evils it is designed to avoid. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process."

34. The proper approach seems to us to be, therefore, that once criminal proceedings have begun they should be allowed to follow their ordinary course and that declarations should be made in relation thereto only in exceptional cases.

35. As indicated, counsel for the Crown conceded, in our opinion entirely correctly, at the end of the hearing before us, that he could, on reflection, no longer argue that the alternative procedure was appropriate.

36. For this reason, it is not appropriate for us to express any view as to whether or not we would have regarded this as a case in which the discretion to make a declaration should be exercised.

Conclusion

37. We express our regret that we were unable to reach a finding that the alternative procedure might properly be used; and we commend the Attorney General and the other parties for their ingenious efforts to find a solution to this serious difficulty which has arisen in the preliminary enquiry.

38. Undoubtedly, the provisions of section 81 did not contemplate preliminary enquiries as protracted as these; and we were informed that others of a similar nature are expected. Therefore we would like to suggest that the Attorney General should consider swift action to seek the necessary amendment to Cap. 227, so as to give legislative sanction to the alternative procedure.

39. As the application was in the interests of all parties we shall make no order as to costs.

(1)    [1979] 53 A.L.J.R. 11.

(2)    [1981] A.C. 718

(3)    [1964] 1 W.L.R. 219 P.C.