CHIANG LILY v. SECRETARY FOR JUSTICE

HCAL 42/2008
HCAL 107/2008

HCAL 42/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 42 OF 2008

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J U D G M E N T

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1.  There does not exist, in Hong Kong, any absolute right to trial by jury nor any mechanism by which a person to be tried of an indictable offence may elect to be so tried. The decision as to whether an indictable offence be tried in the Court of First Instance by a judge and jury or in the District Court by a judge alone is the prerogative of the Secretary for Justice.

The background

2.  The applicant in HCAL42/2008 was granted leave, by Hartmann J, on 16 May 2008 to judicially review a decision by the Secretary of Justice to transfer her trial on five charges, one of conspiracy to defraud contrary to Common Law, two of making a false statement as a company director and one of fraud all contrary to the Theft Ordinance, Cap. 210, and one of authorizing the issue of a prospectus containing an untrue statement about shares contrary to the Companies Ordinance, Cap.32. The hearing was fixed for 2 February 2009.

3.  The applicants in HCAL107/2008 were jointly charged with 13 counts of conspiracy to defraud contrary to Common Law. In addition the 1^st applicant was charged with one count of offering an advantage to an agent contrary to the Prevention of Bribery Ordinance, Cap. 201. The Secretary for Justice made a similar decision to transfer their trials to the District Court. On 29 September 2008, given that the proceedings in HCAL42/2008 had already been fixed for hearing, I granted them leave to review that decision and directed that these two matters be heard together, the issues being the same in each.

4.  The facts which gave rise to the charges are not germane to these proceedings. Suffice it to say, that amongst other arguments, each applicant unusually characterized the facts of the charges against her/him as bringing the offences into a serious category. Each suggests that this is a factor which should be taken into account by the respondent in determining venue. As will be seen, it has been. The course of the proceedings thus far against each applicant was broadly similar – nothing turns on such minor variations, or differences in dates of court appearances, as may exist.

5.  Once a person has been charged with an offence he is brought before a magistrate whereupon proceedings for his committal for trial commence. That is in accordance with the procedure prescribed by Part III, s. 72(1) of the Magistrates Ordinance, Cap. 227 (the Ordinance). Thereafter those committal proceedings continue until one of three things happens: first, with or without a preliminary enquiry which is at the option of the accused person, the accused person is either discharged or is committed to the Court of First Instance for trial before a judge and a jury or, if he has entered a plea of guilty to the charge, for sentence by a judge sitting alone; secondly, the respondent makes application to the magistrate under Part IV, s. 88 of the Ordinance, an application which the magistrate is obliged to grant, to transfer the trial for hearing in the District Court before a judge sitting alone; or, thirdly, the respondent decides that the offence should be tried summarily by a magistrate in accordance with the provisions of Part V of the Ordinance and gives his consent in terms of s. 94A. In the two latter events, the committal proceedings terminate.

6.  In respect of these applicants, the respondent decided to follow the second course and  applied to the magistrate to transfer the proceedings to the District Court. Each applicant took exception to that decision: each professed a desire to be tried in the Court of First Instance. The committal proceedings were adjourned to enable representations to be made to the respondent.

7.  Those representations were made, and in very similar terms. Each set out her/their contentions in fine detail; the letters were expressed to have been written based on advice received from counsel; statistics were quoted; “principles” set out; references were made to decided cases in their plaint for the respondent to reconsider his decision.  Particular emphasis was placed on two factors, first, the contention that Article 86 of the Basic Law had an effect beneficial to the applicants of which they would be deprived if they were to be tried in the District Court and, secondly, that the pool of jurors now available in Hong Kong had increased substantially in recent times.

8.  The respondent, in each instance, considered the representations that had been made to him but maintained his decision to have each applicant tried in the District Court. 

9.  He advised the applicant in HCAL42/2008 of that fact, by letter dated 20 March 2008, in these terms:

"Having carefully considered your letter, I maintain my decision that the District Court would be a proper venue for the trial in this case and that the trial should be held in the District Court.  Should your client be convicted it is unlikely that her conduct would attract a sentence of imprisonment greater than the jurisdiction of the District Court.  I note that you have not referred to any matter peculiar to your client which would prevent her from receiving a fair trial in the District Court.  I have no doubt that your client can and will receive a fair trial in the District Court and I see no good reason why her case should not be tried there.  My decision was not affected in any way by resource constraints."

10.  He advised the applicants in HCAL107/2008 of that fact, by letter dated 14 August 2008, in these terms:

“You have not referred to any matter peculiar to your clients which would prevent them from receiving a fair trial in the District Court.  We have no doubt that your clients can and will receive a fair trial in the District Court and we see no good reason to commit your clients to the Court of First Instance for a jury trial.

In arriving at that conclusion, full weight has been given to the facts of the case, the alleged culpability of your clients, the prejudice and potential prejudice caused to the bank, the likely sentences in the event of conviction and all matters you have raised."

11.  It is not contended by any of the applicants that they are unable to have a fair trial in the District Court.  Mr Dykes SC, appearing for the applicant in HCAL42/2008, indicated in his written skeleton submissions and reasserted in oral submissions:

"2.  In short, the issues are whether adequate reasons have been provided by [the respondent] to justify the decision and whether sufficient consideration has been given by [the respondent] in the choice of venue... having regard to the constitutional status of jury trial under the common law and, in the light of Article 86 of the Basic Law, which provides that the principle of trial by jury previously practised in Hong Kong shall be maintained.

...

9.  It is not the applicant's case that she has an absolute right to jury trial.  The "principle" referred to in Article 86 of the Basic Law is to be understood as referring to a system in which a person accused of an indictable offence would be tried on indictment before a jury, unless and until the Attorney General intervened and required summary trial before a magistrate or District Judge.

10.  It is not the applicant's case that she cannot have a fair trial in the District Court...

11.  It is not the applicant's case that there is necessarily something inherently and irredeemably unfair and wrong in giving the prosecution the right to decide where a case should be tried...."

12.  Ms Lan who appeared for the applicants in HCAL107/2008 indicated in her submissions that she adopted all that had been said by Mr Dykes.  It must be said, however, that during the course of her oral submissions she frequently made reference, variously, to a "right” and a “qualified right to a trial by jury" which, in the light of her acceptance of Mr Dykes's position and concessions, I took to be a phrase of convenience rather than a contention that such a right actually exists.

13.  Although when commencing his oral submissions Mr Dykes indicated - I paraphrase - that the contentions were that the respondent had not attached sufficient weight to trial by jury under the Basic Law and Common Law and that the reasons furnished by the respondent were not adequate in the public law sense, at the conclusion of submissions he, correctly in my view, identified the issue as being the adequacy of the furnished reasons.

14.  Thus the true issue in these proceedings is the adequacy of the reasons for the respondent deciding to transfer the trials to the District Court and refusing to alter his decision and not the effect of the deprivation of some constitutional right - which the applicants accept does not exist.  That affects the course which it is necessary to adopt in determining the issue – see Dr Kwok-hay Kwong v The Medical Council of Hong Kong CACV373/2006 §§18 -20: particularly, the numerous authorities to which I have been referred, in respect of the approaches adopted in this and other jurisdictions where there is a derogation from an existing constitutional right, are of little or no assistance.

The principle of jury trials before the Basic Law

15.  Article 86 of the Basic Law reads:

"The principle of trial by jury previously practised in Hong Kong shall be maintained."

16.  The Article is clear and unambiguous.  All that it is saying is that whatever principle applied in relation to jury trials prior to the Basic Law coming into effect would continue to apply thereafter.  The applicants cannot be in any better position now than they would have been prior to the Basic Law coming into effect: they will be in the same position.

17.  What was that principle which was previously practised?  A challenge to the jurisdiction of the District Court based on the contention that the District Court Ordinance was ultra vires because its effect was to extinguish a right to trial by jury was unsuccessful – see R v WONG King Chau & Others [1964] DCLR 94.  Similarly, a review of an order to transfer a trial to the District Court based on the "essential question" identified by a Full Bench of the Court in In an application by David Lam Shu-tsang & another for an Order of Certiorari (1977) HKLR 393 as being "... is the trial of charges for indictable offences by a single judge sitting alone against the wishes of the person accused trial in accordance with law" failed, the court noting, at 399:

"Neither Part V of the Magistrates Ordinance nor any section of the District Court Ordinance conferred any right to elect trial by jury.  It is doubtful if there can be said to have been such a right to elect at Common Law.  Indeed when considering the right to jury trial at Common Law it is well to remember that that right originated not as a privilege but as an obligation."

 continuing, at 400:

“Section 88 [of the Magistrates Ordinance] in itself does not take away the right to trial by jury although its operation has the effect of removing charges for indictable offences which an accused person faces to a court of a single judge as soon as the Attorney General applies for an order to that effect.  This is in our view the clear unambiguous and intended effect of the section.  It is capable of no other interpretation and we cannot interfere with its operation unless the decision of the Attorney General to apply for a transfer under it can be successfully attacked.  Section 88 is primarily procedural although its direction to the magistrate to act “upon application made by or on behalf of the Attorney General" necessarily enables the Attorney General, in the exercise of his discretion to make application.”

18.  Three judgements, Pickering JA and Li and Cons JJ, were delivered in the Court of Appeal consequent upon an appeal against that decision: see David Lam Shu-tsang & another v Attorney General CACV42/1977.  The appeal was dismissed.  Pickering JA, having noted in the decision in Wong King Chau and others said, at 6:

"... the section providing for mandatory transfer of indictable offences upon the application of the Attorney General contained no saving clause, nothing to the effect that the Attorney General must consult the wishes of the accused and nothing giving the accused any right of objection to the transfer.  The discretion as to whether to apply for transfer was invested solely in the Attorney General and, upon his exercising that discretion by making a transfer, the obligation to transfer lying upon the magistrate was absolute.  The scheme of the legislation is clear beyond a peradventure and it entails, with equal clarity, the deprivation of the former common law right to trial by jury.

Mr Leggatt would have it that there is no necessity for his client to elect trial by jury since he enjoys the right to such trial and could only be put to election by statute.  For the reasons I have given it appears to me that there is no right to election and no right to trial by jury and that the result has not been arrived at by what Mr Leggatt terms "a side wind" but by the unambiguous pattern of the legislation.  It is not, with respect, correct to say that the right to trial by jury has not been taken away by either the District Court Ordinance or the Magistrates Ordinance.  Certainly it has not been wholly taken away but it has so been taken by the former Ordinance in the case of any criminal charges which are bought in the District Court whilst the latter Ordinance provides the mandatory machinery for transferring to that court such cases as the Attorney General in his unfettered discretion determines to prosecute there." [emphasis supplied]

19.  Consequently, the principle of trial by jury that applied prior to the Basic Law coming into effect was clear: an indictable offence was triable either by judge and jury, in the High Court, or by judge alone, in the District Court, at the discretion of the Attorney General.  The order of the magistrate transferring the trial to the District Court is one which is not subject to appeal: s. 89(2) of the Ordinance. Article 86 preserved the status quo ante.

20.  The Attorney General's discretion was, and hence the respondent’s discretion is, unfettered, although not necessarily entirely free of judicial supervision:

“20... the rule that ensures the Secretary's independence in his prosecutorial function necessarily extends to preclude judicial interference, subject only to issues of abuse of the court process and, possibly, judicial review of decisions taken in bad faith.

...

per Stock JA (Ma CJHC and Kwan J, concurring) in Re: C (A Bankrupt) [2006] HKC 582 in considering the implications of Article 63 of the Basic Law. See, further, the comments of the Full Bench in In an application by David Lam Shu-tsang & another for an Order of Certiorari, supra, at 401.

21.  It was suggested that there existed a "legislative presumption" that a person would be tried by a judge and jury unless the Attorney General intervened.  With respect, when the District Court was created it brought into effect a system, but neither that creation nor that system brought into existence any presumption, legislative or otherwise.

22.  The respondent was entitled to arrive at his decision to transfer these two trials to the District Court.  Representations were made to him to reconsider that decision.  He considered those representations but declined to alter his decision.  This was a course which he was entitled to follow in the exercise of his discretion.

Adequacy of the reasons

23.  I was invited by Ms Lan to decide whether or not there is a duty on the respondent to provide reasons for a decision as to venue of a trial.  That is a matter which I do not have to decide as the respondent has furnished reasons for his decision: where reasons are furnished, even absent a duty to do so, they are "... open to scrutiny and review upon ordinary public law principles, which may include the question of their adequacy.” (R v Criminal Injuries Compensation Board, ex parte Moore [1999] 2 All ER 90 at 95J)

24.  It is obviously a matter of importance that any reasons furnished be scrutinized in the context in which they were supplied. There will be instances where comprehensive and detailed reasons may be required: there will be instances where the briefest of reasons will suffice. Whether reasons are to be regarded as adequate is a matter which will vary from instance to instance and which will depend upon, amongst other things, the factual circumstances which pertain, the nature of the decision made, the legislative framework within which it is made and the nature of the decision maker. 

25.  It is of importance in these applications to bear in mind that the respondent had made the decision, which was within his discretion, to transfer the trials to the District Court without reference to the applicants.  It is self-evident that that is what occurs in the ordinary course.  This was an unexceptional and unexceptionable event.  Once the respondent’s decision became known to the applicants, they sought a reconsideration of it emphasising in their representations specific aspects which they had been advised required particular consideration by the respondent.

26.  In an appeal in which the issue was the choice of charges to be laid, but is of equal applicability in regard to the selection of venue, Beeson J said in HKSAR v Pearce [2006] 3 HKC 105 at §56:

"The choice of charge and venue for trial is the responsibility of the Secretary for Justice... Charges are laid and venue chosen according to prosecution policy guidelines taking into account the gravity of the offence, the elements that can be proved and other factors such as prevalence, deterrence, community mores etc.  The prosecutorial burden is a heavy one and it is for the Secretary for Justice to decide in what manner it is borne....”

27.  The considerations to which the judge referred are, as commonsense dictates, matters which will be considered in every instance.  Prosecution policy guidelines are well known and publicly available.  As such, it seems to me that it would be unrealistic to expect the respondent, as part of his reasons for arriving at a given decision, to say that he had acted in terms of the guidelines.

28.  The reply to each of the letters of representation made by the applicants, the relevant paragraphs being set out in full at §§9 and 10, supra, specifically indicated that, in respect of the applicant in HCAL42/2008, the respondent had "... carefully considered your letter..." and, in respect of the applicants in HCAL107/2008, that "... full weight has been given to... all the matters you raise.".  Bearing in mind that those representations sought a reconsideration of a pre-existing decision and were detailed, I am satisfied that the response by the respondent indicating, in effect, that the arguments, contentions and submissions of the applicants, had been considered but did not alter the original decision was all that was necessary in the circumstances.  To have expected the respondent to have dealt with each contention and each point put forward is simply unrealistic in the context of this matter.

29.  The respondent's response in each instance went further.  The respondent was at pains to point out that, in each instance, nothing had been put before him "peculiar" to each of the applicants that would prevent her/him from receiving a fair trial the District Court.  It has been suggested that this is an irrelevant consideration because a fair trial in every venue is a fundamental right.  I do not think that suggestion to be correct.  The response demonstrates that if anything specific to any particular applicant had been invited to his attention the respondent would have factored that into account.  The point about this part of the respondent’s response is not that it is stating the obvious, as is suggested, but that it illustrates that he has given full consideration not only to the specific representations that have been made to him, but to additional matters which he perceived also potentially of relevance.

30.  Much has been made of the references in each of the respondent's responses to the fact that it seemed to the respondent that, in the event of conviction, any sentence would fall within the jurisdiction of the District Court.  It has been submitted that that should not be the sole determining factor in respect of venue.  As a basic, single proposition, that is obviously correct.  But that does not mean that it is not an important factor to be taken into account and perhaps, in a given situation, the determinative factor.  The Court of Appeal has frequently emphasized the necessity to bring trials in the appropriate venue taking into account the likely sentence to be imposed in the event of conviction: see, e.g., KWOK Chi-wai & Anor. v HKSAR CACC12/2005; TAI Chi-wai & Anor v HKSAR CACC497/2006. This is acknowledged in the current Code for Prosecutors (2009) published by the Department of Justice.  It would be naive to suggest, and the respondent has not sought to do so, that it did not play an important role in these decisions.

31.  Which leads to the contention that by certain accused having been tried in the Court of First Instance and others in the District Court there has been an inequality of treatment.  That argument, it seems to me, may avail the applicants in the event that these proceedings related to the deprivation of a constitutional right, which they do not.  In any event, the contention ignores the reality of the situation which, as the applicants contentions demonstrate in HCAL107/2008, is that even where similar matters have been tried in the Court of First Instance the resulting sentences frequently fall within the jurisdiction of the District Court.  However, as the respondent is required to consider venue in respect of  each matter on its own merits and as each matter will have factors peculiar to it, comparison with other decisions without being aware, at least, of the facts of them is of no practical value.

32.  The respondent has also been criticised for saying that he sees "no good reason" for the applicant in HCAL42/2008 not to be tried in the District Court and for the applicants in HCAL107/2008 to be committed for trial in the Court of First Instance.  The respondent’s assertion simply demonstrates that he had fully considered the consequences of the decision to transfer the trials to the District Court.

Conclusion

33.  I am satisfied that the reasons which were furnished by the respondent for his decision to transfer the proceedings to the District Court were sufficient on the factual situation in each instance.

34.  Consequently, each application is dismissed.

35.  Costs are to follow the event:  the applicants are to pay the respondent’s costs, to be taxed if not agreed, in respect of their respective applications including the application for leave.