THE DAIRY FARM CO LTD v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE

HCAL59/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 59 OF 2004

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J U D G M E N T

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1. This is the applicant's application for judicial review against two decisions made on 5 May 2004 by a magistrate sitting at Shatin Magistracy in STS 120/2004 whereby the magistrate:

(1) Refused the applicant's application to order a permanent stay of the prosecution in STS 120/2004; and

(2) Adjourned the applicant's application for costs under section 17 of Costs in Criminal Cases Ordinance, cap. 492 to the conclusion of the trial in STS 120/2004.

Factual background

2. The applicant owns and operates the Wellcome Supermarket, which is one of the major chains of supermarkets in Hong Kong.

3. Upon receipt of a complaint, officers from the respondent conducted an operation in the morning of 22 December 2003 and entered the Wellcome Supermarket at Shatin New Town Plaza. Arising out of the operation, the applicant was charged for an offence under section 29 of the Food Business Regulation under the Public Health and Municipal Services Ordinance, cap.132. for possessing for sale of fresh meat which had not been slaughtered in a government slaughterhouse or in a slaughterhouse approved by the Director of Food and Environmental Hygiene. The meat in question was 2 pieces of pork weighing 11.42 kg and 12.28 kg, which were found inside the supermarket on 22 December 2003.

4. The applicant pleaded not guilty to the summons and the matter was set down for a three-days trial in May 2004.

5. On 6 April 2004, the applicant's solicitors wrote to the respondent requesting for information and evidence relating to the prosecution. In the penultimate paragraph, it stated:

"(7) Other Unused Material

Is there any other "unused material" not specifically requested in this letter which should be disclosed to the defence in light of the House of Lords decisions in R v. Mills and Poole [1997] 3 WLR 458, R v. Brown [1997] 3 WLR 447 and the decision of the Hong Kong Court of Appeal in HKSAR v. Lau Ngai Chu, Criminal Appeal No. 228 of 2001. If so, please provide copies."

6. On 15 April 2004, the respondent replied by providing some of the materials sought by the applicant's solicitors, and indicated that the remaining information required would be provided when they were available.

7. On 16 April 2004, the applicant applied for an order under section 32 of the Criminal Procedure Ordinance, cap.221. After a contested hearing, the trial magistrate granted the order sought and the applicant was allowed to inspect, and record by videotape the inspection, the stamping and production process at the Sheung Shui Slaughterhouse.

8. On 17 April 2004, the applicant's solicitors served on the respondent two defence witness statements in reliance on section 65B of the Criminal Procedure Ordinance.

9. On 20 April 2004, the pre-trial review in STS 120/2004 was held.

10. On 23 April 2004, the respondent wrote to the applicant's solicitors dealing with the remaining materials sought in the letter of 6 April 2004. In respect of request (7), the respondent's letter replied as follows:

"(7) Other Unused Material

There is no other "unused material" with the Prosecution."

11. The trial commenced on 3 May 2004 before the magistrate. Seven prosecution witnesses were scheduled to be called. The applicant appeared by Mr McCoy SC, who also appears for the applicant in these proceedings. In the course of the cross-examination of PW3, it transpired that prior to 22 December 2003, officers of the respondent had conducted surveillance on the supply and transportation of pork to some of the applicant's supermarkets, including the one at Shatin New Town Plaza.

12. On 4 May 2004, the applicant made an application for a permanent stay of the prosecution. The prosecution opposed the application. The submissions concluded in the mid-morning of 5 May 2004 and the hearing was adjourned for the magistrate to consider the application.

13. When the hearing resumed after lunchtime, the magistrate ruled that the documents mentioned by the applicant's counsel in submissions were disclosable. The magistrate then enquired with the prosecution the time required for the documents to be supplied. Thereafter, the magistrate stated that the application for a permanent stay was refused.

14. After confirming that the defence could not proceed with the trial until the documents were supplied, counsel for the applicant applied for costs of the past three days under section 17 of the Costs in Criminal Cases Ordinance. Counsel for the prosecution requested the magistrate to adjourn the question of costs to the conclusion of the trial. After hearing submissions, the magistrate adjourned the question of costs to the conclusion of the trial. Immediately following this were the following exchanges between counsel for the applicant and the magistrate:

"Counsel: Madam, may I enquire what reason, so I have a note of that for explaining it to lay clients?

Court : I don't give reasons now."

15. The trial in STS 120/2004 is now adjourned to 15 November 2004 for continuation, with five more days being reserved.

The application for judicial review

16. On 11 May 2004, the applicant issued the present proceedings. Hartmann J granted leave to judicial review on 13 May 2004. On 17 May 2004, Hartmann J further ordered that the hearing of the judicial review application be expedited. The applicant filed the Notice of Motion on 18 May 2004.

17. In the Form 86A, the applicant seeks:

(1) An order of certiorari to quash the decisions of the magistrate refusing the application for permanent stay and adjourning the question of costs to the conclusion of the trial; and

(2) An order remitting the matter to the magistrate with a direction to reconsider the two decisions according to law.

The grounds for judicial review

18. The sole ground upon which the applicant based its challenge to the two decisions is that the decisions are Wednesbury unreasonable and procedurally unfair.

19. In respect of the decision on the stay application, the applicant says that it is a clear case of abuse of process that merits a permanent stay of the prosecution, having regard to the following points:

(1) The failure to make disclosure was deliberate and actuated by bad faith in view of:

(a) The request for disclosure of unused materials by the applicant's solicitors and the unreserved reply that there was no unused materials;

(b) The defence disclosed by the application for an inspection order under section 32 of the Criminal Procedure Ordinance, the service of the defence witness statements and the pre-trial review; and

(c) The respondent had not filed any evidence to explain the failure.

(2) The applicant is facing a summary offence for which the maximum penalty is a fine of $50,000. The prejudice occasioned to the defendant in terms of time and costs therefore outweighs the public interest in continuing the prosecution.

20. In respect of the decision on the application for costs, the applicant says that in view of the ruling that the documents are disclosable, it is a clear case of omission or improper act on the part of prosecution such as to warrant an immediate costs order. By not making an immediate costs order, the magistrate has effectively condoned the wrongdoing of the respondent and encouraged the prosecution to pursue the case further.

21. A major argument underlying the applicant's challenge to both decisions is that the magistrate had not given reasons for the decisions. It is said that the perversity of the decisions is exposed and demonstrated by the absence of reasons.

The respondent's arguments

22. In resisting the present application, the respondent argues that:

(1) The non-disclosure was not deliberate having regard to the development and the state of the law in this regard, and that any unfairness occasioned by the non-disclosure no longer exists in that the prosecution has since made full disclosure in accordance with the magistrate's direction.

(2) The magistrate's decisions are not unreasonable in all the circumstances of the case.

(3) The decisions were discretionary in nature and the magistrate is under no general duty to give reasons for them. The absence of reasons does not reflect on the legitimacy of the decisions made.

The court's approach

23. In order to succeed in the challenge that the magistrate's two decisions are Wednesbury unreasonable, the applicant must show that no reasonable tribunal would have reached the same decisions. It is also not in dispute that decisions on whether to grant stay of proceedings or to adjourn the determination of costs are discretionary in nature. Accordingly, in order to succeed in the present application, the applicant would have to show that its arguments in support of the stay application and an immediate determination of the costs application are completely unanswerable, and that no reasonable magistrate would have exercised the discretion in the same way as the magistrate had. Needless to say, these are high thresholds.

The decision on the application for permanent stay

24. In R v. Lee Ming Tee & Anor (2001) 4 HKCFAR 133 at 148I, 149J-150B, the Court of Final Appeal held that a stay of criminal proceedings may be ordered in one of the following situations:

(1) A fair trial for the accused is impossible and to continue the prosecution would amount to an abuse of process; or

(2) Even though a fair trial remains possible, "the circumstances involved an abuse of power which so offended the court's sense of justice and propriety that the entire prosecution was tainted as an abuse of process".

The Court of Final Appeal further states that in principle and in practice the granting of stays are highly exceptional.

25. The applicant's application for permanent stay was made on the basis of the second situation, which the Court of Final Appeal observes rarely arise (at 149J). The arguments advanced before the magistrate in support of the application were substantially the same as those argued in the present application. The question is can it be said that there are no answers in law and in fact to the arguments advanced?

26. I accept that it is opened to the applicant to argue that the prosecution could have appreciated from the defence application for an order allowing inspection of the processing in the slaughterhouse and the defence witness statements served, that the defence is arguing that the absence of stamping on the two pieces of pork in question is not conclusive or indicative of the pig in question not having been processed in the government slaughterhouse and is therefore from an unlawful source. In ruling that the documents relating to the prior surveillance are disclosable, the magistrate impliedly accepted the applicant's argument that the documents are material to the defence case.

27. No doubt, in replying to the applicant's solicitors that there were no unused materials, the respondent had made a conscious decision not to disclose the documents on the prior surveillance. It is also a fact that the respondent had not filed any evidence in this application to explain the decision. In my view, however, it cannot be said that the only reasonable conclusion that flows from these circumstances is that the respondent was practising deliberate concealment actuated by bad faith, or was manipulating the process to secure the applicant's conviction.

28. Mr Reading SC has referred to the fact that until the decision in HKSAR v. Gao Hejia [2003] 1 HKC 522, at 531, the legal position on the prosecution's duty of disclosure in magistracy proceedings was less than clear, and the practice of the Department of Justice relating to disclosure in the Magistrate court was rather restrictive. It also appears from the transcript that the main thrust of the prosecuting counsel's submission was that the documents were considered not material and not disclosable.

29. Additionally, it is to be observed that the applicant's request for "unused materials" was directed to the respondent, not to the Department of Justice, and was dealt with by a senior officer of the respondent, who was put to the task of deciding what materials fall within the scope of disclosable unused materials.

30. In my view, it is not utterly impossible that the non-disclosable was due to a failure to appreciate the relevance or materiality of the documents in the light of the law that has developed. I accept that in the absence of evidence explaining the reasons for the decision not to disclose the documents on the prior surveillance, it is not for this court to speculate what had caused the officer to fail to make the disclosure and to reply that there were no unused materials. However, to the extent that it is sought to argue that the respondent must be acting in bad faith, then this court must look to all the objective circumstances of the case so as to be satisfied that there is no other reasonable conclusion to be drawn from the non-disclosure.

31. The applicant also refers to the fact that at one stage before the magistrate, the prosecution had taken issue with the service of the letter enclosing the two defence witness statements were attached, and says that this reflects on the bad faith of the respondent. But as the transcript shows, counsel prosecuting on fiat was taking a point on the strict compliance with section 65B of the Criminal Procedure Ordinance when he raised a query on the receipt of the letter. It is also plain that he had yet to take instructions from the respondent as he informed the magistrate that he wished to confirm his instruction and to check whether the respondent had received the letter: see Transcript at p.79, lines B & F.

32. As to the exercise of discretion, counsel for the applicant in his submission before the magistrate acknowledged that there were a number of possible options in cases where there had been failure to make disclosure: Transcript at pp.52 lines E-L & 101. One of the options identified is to order disclosure, grant an adjournment and to make costs sanction.

33. The applicant argues that the context of the stay application is very important consideration in the exercise of the discretion. Reference is made to the case of HKSAR v. Lee Ming Tee & Securities and Futures Commission [2004] 1 HKLRD 513. In that case, the trial judge aborted the trial after holding that the prosecution had breached its duty of disclosure in relation to matters concerning the prosecution's expert witness. He further ordered a permanent stay on the ground of intolerable abuse of process. The Court of Final Appeal allowed the appeal and remitted the case to the Court of First Instance for trial. Sir Anthony Mason NPJ (at paras.182-188), with whose judgment the other members of the Court of Final Appeal agreed, emphasised that only in exceptional circumstances would a stay be granted where a fair trial was possible. It was held that in exercising the discretion afresh, the Court of Final Appeal considered it had to take account of the public interest in the detection and punishment of crime as a result of which the investing public had suffered loss; the public expectation that persons charged with serious criminal offences would be brought to trial unless there was a powerful reason for not doing so; preserving the integrity of the criminal justice system; and the serious burden imposed upon the defendant of facing a lengthy re-trial. The Court of Final Appeal was of the view that the breach of duty did not occur in bad faith and that, weighing all the circumstances, a re-trial was not an affront to the public conscience.

34. For the applicant, it is argued that since the applicant was only facing a summary offence with a maximum penalty of a $50,000 fine, and the allegation only concerns two pieces of pork, it is not a serious crime. In view of the triviality of the matter, it is submitted that the public interest in support of the continuation of the prosecution, as identified by Sir Anthony Mason NPJ, carries less weight in the exercise of the discretion.

35. Mr Reading SC however points out that there are other aspects to the present prosecution. These include the fact that the applicant is operating one of the two major chains of supermarkets in Hong Kong, and the prosecution involves an allegation that the fresh meat sold in the supermarket was from an unlawful source.

36. I agree that although it is a summary offence as opposed to a serious crime, it cannot be said that the public interest identified by Sir Anthony Mason NPJ has no application or should carry less weight. Apart from the matters referred to by Mr Reading SC, the prosecution also involves a further aspect of public health. It is not a case of a minor or trivial nature such that there are no public interests in seeing it being properly adjudicated.

37. The applicant also argues that substantial legal costs and management time had already been incurred to meet the prosecution, and further substantial time and costs will have to be put in for another 5 days of hearing. As such, it is submitted that the prejudice to the applicant outweighs the public interest in having the prosecution continued. It is further said that although it is not the case that the applicant cannot financially afford the continuation of the trial, the applicant should not be unfairly discriminated by reason of its financial strength.

38. In my view, the prejudice to the defendant is one of the factors to be taken into account in considering whether the non-disclosure offends the court's sense of justice or propriety or amounts to an affront to public conscience that justifies a permanent stay, notwithstanding that a fair trial remains possible. The weighing of this and other relevant factors is a matter for the magistrate. At the same time, the course that the magistrate had adopted, namely, order disclosure and an adjournment, is admittedly one possible option opened to her in the exercise of her judicial discretion. In the circumstances and in the absence of indications that the magistrate had failed to take account of the relevant factors or had taken into account irrelevant considerations, it is not open to this court in its supervisory role to conclude that the discretion had been exercised unreasonably in the Wednesbury sense.

39. This brings me to the applicant's complaint that the magistrate had not given reasons for the decision refusing a stay. It is not in dispute that the magistrate is under no statutory duty to give reasons for a decision on a stay application. There is also under the common law no general duty to give reasons: R v. Secretary of State for the Home Department, ex p Doody [1994] AC 531 cited in Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1977-78) 1 HKCFAR 279 at 289J. Whether a duty to give reasons is to be implied depends on considerations of fairness and justice: see Chan Tit Shau v. Secretary for Justice [2003] 2 HKC 225 at para.36. What the applicant seeks to argue is that the absence of reasons is demonstrative of the perversity, in the Wednesbury sense, of the decision and gives an appearance of arbitrariness.

40. Two points are important in considering the applicant's complaint. Firstly, the stay application and the decision were made in the middle of a trial. The trial is presently not yet concluded. Secondly, no request for reasons on the stay application had been made to the magistrate. The contention in paragraph 11(i) of Form 86A that the magistrate had refused to give reasons, and said that it is her invariable practice not to give reasons for any decision until the end of the trial is factually inaccurate. As the transcript shows, when the magistrate announced her decision to refuse the stay application, counsel did not request for reasons for the refusal, but proceeded to make the costs application. The enquiry for reasons was made in the context of the magistrate's decision to adjourn the costs application to the end of the trial.

41. The applicant argues that it is not incumbent upon the parties to seek reasons for the magistrate's decision. This misses the point. The applicant has in its Form 86A and counsel's submissions suggested that the magistrate had refused to give reasons. But the fact that the magistrate did not announce the reasons for the refusal of stay cannot be equated with a refusal to give reasons. This is particularly so when the magistrate had not been asked to state her reasons.

42. As to the submission that this is indicative of a lack of reasons or the arbitrariness of the decision, one must bear in mind that the stay application was made in the course of the trial, and the magistrate's decision was to continue with the trial. It is probable that the magistrate considered that in the interest of the administration of justice, it was more appropriate to defer the giving of the reasons to the conclusion of the trial. It is also to be noted that, in making the stay application, the defence had made allegations of bad faith against the prosecution and the officers involved in the operation. It may be that the reasons for the decision should not be stated there and then so as to avoid any appearance of bias.

43. The fact that the trial is still in progress is an important feature that distinguishes the present case from HKSAR v. Li Chi Shing [2000] 4 HKC 168. The case was a magistracy appeal on conviction. The appeal was on the ground that there had been a material irregularity flowing from the magistrate's refusal to stay the proceedings in view of a previous prosecution on the same factual basis, and the accused had been acquitted by the same magistrate. The magistrate did not state her reasons for the refusal at the trial nor did she expand on the reasons in the Statement of Finding. Beeson J allowed the appeal, holding that the accused was entitled to know the reasons for refusing the application and the special circumstances that justified the continuation of the second prosecution. The present case is factually very different from Li Chi Shing. Here, it is premature to conclude that there is an absence of reasons for the decision.

44. Mr McCoy SC submits that the giving of reasons is important to the parties, who are entitled to know the basis of the decision. As mentioned in Chan Tit Shau at para.35, there are clearly benefits to the parties attendant upon the giving of reasons for a determination of an application for stay of proceedings. But that does not mean that the reasons must be given at the same time when the decision is announced. Mr McCoy SC argues that it is not good enough for the magistrate to give her reasons at the end of trial. It is said that there is a concern that the magistrate may have become coloured by what transpires at the subsequent stage of the trial. I am unable to follow this argument and do not see the basis for it.

45. I also do not accept the submission that the transcript suggests that the magistrate might not be on top of the application. The magistrate's question and comments on the relevance of section 65B of the Criminal Procedure Ordinance, when read in context, do not support the submission. On the contrary, it would appear from the magistrate's query towards the end of counsel's submission on the injustice to the defence and the possibility of a fair trial, that the magistrate was fully aware of the issues before her.

46. In short, I do not consider that it is shown that the magistrate had factually refused to give reasons for her decision refusing a stay. I do not agree that the fact that the magistrate did not give reasons when announcing her decision on the stay application demonstrates the decision is Wednesbury unreasonable.

The decision to adjourn the determination of costs

47. Section 17 of the Costs in Criminal Cases Ordinance provides:

"Where at any time in the course of criminal proceedings a court or a judge is satisfied that costs have been incurred in respect of the proceedings by a party to the proceedings as a result of an unnecessary or improper act or omission by or on behalf of the other party to the proceedings, the court or the judge may, after hearing all such parties, order that all or part of the costs so incurred shall be paid to the first mentioned party to the proceedings to the other party to the proceedings".

48. Section 17 is in similar terms as Regulation 3(1) of the Costs in Criminal Cases (General) Regulations 1986 in England. The 1986 Regulations were enacted pursuant to section 19 of the Prosecution of Offences Act 1985, which provided in sub-section (2)(a) that the regulations may allow the making of a costs order at any time during the proceedings. In DPP v. Denning [1991] 2 QB 532, it was held that the court does have power under Regulation 3(1) to make an interim costs order while the proceedings are still in progress. There is no dispute between the applicant and the respondent that the power under our section 17 may be exercised while the proceedings are still in progress.

49. Section 15(e) of the Costs in Criminal Cases Ordinance provides:

"The question of whether or not an order as to costs ought to be made in respect of any expenses properly incurred by any party to the proceedings in the course of the proceedings, including any proceedings preliminary or incidental thereto, may be adjourned until the end of those proceedings."

50. Mr McCoy SC accepts that the magistrate has power under section 15(e) to adjourn the question of costs, including an application made under section 17, until the end of the proceedings. In Mr Reading SC's submissions, it has been the practice to adjourn question of costs until the conclusion of the trial.

51. There does not appear to be many authorities on the application of section 17, especially in relation to when the power should be exercised. There is a useful discussion of the section in Archbold Hong Kong 2004 paras.6-67 to 6-70. It is observed, among other things, that "the order should not be made, if at all, until the conclusion of the proceedings", that "it may take the form of a direct award or a disallowance of costs", and that "the judge or magistrate should fix the costs rather than leave it to taxation".

52. It is reasonably clear from the wordings of the section and the fact that it comes under Part IV of the Ordinance dealing with unnecessary and wasted costs, that section 17 is concerned with unnecessary costs incurred as a result of one party's improper act or omission. Often, it will not be apparent whether certain part of the proceedings and/or the costs in relation thereto is unnecessarily incurred until at the conclusion of the proceedings. Given also that the order may take the form of a disallowance of costs, it may explain why it is considered a better course to deal with the costs issue at the end of the proceedings.

53. In the present case, the applicant had sought the costs of the first three days on the basis that they were costs thrown away by the prosecution's improper act or omission with regard to disclosure of unused materials. In submitting that the question of costs should be adjourned until the conclusion of the trial, counsel for the prosecution had pointed out to the magistrate that it was premature to determine how much of the costs incurred were wasted or thrown away.

54. Indeed, the three prosecution witnesses that had testified were among the seven scheduled prosecution witnesses and would in any event be called to give evidence. It may well be that when the trial resumes in November 2004, they have to be re-called to be examined in relation to the prior surveillance or the non-disclosure, but that does not mean that their testimony given on the first day of the trial is unnecessary or that the costs in relation thereto is unnecessarily incurred.

55. Having regard to the fact that it is within the magistrate's discretionary power to adjourn costs until the end of the proceedings and that the circumstances may warrant deferring the issue to the end of the trial, it cannot be said that the magistrate's decision to adjourn the question of costs until the conclusion of the trial is one that no reasonable tribunal will make or is Wednesbury unreasonable.

56. The applicant also complains the magistrate's refusal to give reasons for the decision on the spot. In my view, the submission does not advance the applicant's case against the decision to adjourn the costs application. Firstly, for a discretionary decision to adjourn the determination of costs, there is generally very little for a magistrate or judge to explain. The benefits and purposes to be gained from requiring the magistrate to furnish reasons, whether at the time or subsequently, are minimal. Secondly, considering the nature of the power under section 17 and also the relevant circumstances mentioned in the preceding paragraphs, it cannot be said that the refusal to state the reasons on the spot is illustrative of the unreasonableness or arbitrariness of the decision. Thirdly, I do not agree that the magistrate's decision by itself can reasonably be viewed as condoning the prosecution's failure to make proper disclosure.

57. The applicant's challenge to the decision to adjourn the question of costs until the end of the trial therefore fails.

The relief sought

58. Given that I do not find in favour of the applicant's challenges to the decisions of the magistrate, it is not necessary for me to deal with the relief sought. However, as I had mentioned in the course of counsel's submissions, I have considerable difficulties with the relief of remitting the matter to the magistrate for re-consideration in accordance with law. Normally, such an order is appropriate where the tribunal had made an error of law or had taken account of irrelevant consideration or failed to take into account relevant consideration. The present case does not involve any error of law. The basis for the decisions has yet to be made known. The basis and the practical purpose of an order under Order 59 rule 9(4) of Rules of The High Court are doubtful. On the other hand, it may be argued that an order of mandamus is inappropriate in that it may be seen as a usurpation of the magistrate's discretion by this court, whose role ought to be supervisory. In my view, the difficulties may well suggest that the present challenge ought not to have been made in the middle of the trial and by way of judicial review.

Conclusion

59. For the reasons indicated above, the applicant's judicial review application is dismissed. The normal practice of costs follows event applies. I make an order nisi that the applicant pays the respondent the costs of this application, to be taxed if not agreed.