CHOI SZE FAI V. THE QUEEN

1993, No. MP 2679

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant who is a solicitor is presently the subject of an investigation by the Independent Commission Against Corruption.

2. 22 charges have been laid against him in the District Court and these charges are due to be heard on the 3rd January 1994.

3. A considerable body of correspondence has been exchanged between the Applicant and The Prosecution and in the most general terms the Applicant claims that the failure of the prosecution to supply him with detailed information concerning the charges he faces seriously prejudices him. It is evident from the Respondent's case that they are prepared to comply fully with all legal requirements to furnish material to the Applicant but due to the fact that the said investigation is still proceeding, they are not in a position to do this at the present time. They do say, however, that they will so comply "well before the trial".

4. In his application for leave to apply for Judicial Review the "Judgment, order, Decision or other proceeding in respect of which relief is sought" is stated to be "District Court Case No. 366 of 1993 R. v. Choi Sze- fai".

The Relief sought is as follows :-

"The proceedings of the District Court Case No. 366 of 1993, R. v. CHOI SZE FAI, be permanently stayed unless the Crown complies strictly with the followings within 14 days from the date hereof :-

(1) all the inadmissible evidences, including hearsay, in the witness statements produced by the Crown be excluded or edited out in accordance with Practice Note (1986) 2 All ER 511.

(2) two Senior Officers, not below the rank of Assistant Director, in ICAC and the Legal Department each make an affirmation to affirm that all evidences or materials, currently, in possession of ICAC, irrespective of the sources, concerning the District Court Case No. 366 of 1993, no matter for or against the Defence, have been supplied to the Defence and to the Court. If any evidences/materials are concealed from the Court or the Defence, a clear explanation has to be given in the affirmation,

(3) unedited transcripts of three video-tapes recording the interviews with the applicant on 20.11.92, 21.11.92 and 4.12.92 be produced to the Defence and the ourt in lieu of the edited transcripts already produced,

(4) each of the Crown witnesses should be conveyed a message that the applicant intend to take a proof of evidences from them in presence of representatives from both ICAC and Legal Department,

(5) full copies (including signing page) of all affirmations - made by the applicant, by Crown witnesses (including Mr. Tsui Lap Lung and concerned ICAC officers) together with all exhibits as well as pleadings in the High Court Action No. A3047 of 1993 be included in the Bundle Documents produced to the Court.

(6) the Crown produce a copy of the video-tape recording the appearance of the genuine operator of the false Leong, Lam & Co account as well as the certified copies of the false Edward Wong & Ng bank account to the Defence,

(7) the Crown confirm in writing to the Defence and the Court the exact number and identities of prosecution witnesses to facilitate the Defence to arrange the Defence witnesses,

(8) the Crown confirm in writing to the Defence to arrange Mr. Tsui Ah-heung, Mr. Tsui Lap Lung's father, to give evidences at trial,

(9) the Crown confirm in writing that they have disclosed all "unused material" to defence in accordance with Practice Note (1982) 1 All ER 734,

(10) the Crown confirm in writing that they have informed the Defence of any witness or any evidences or materials who/which is unfavourable to or unhelpful to the prosecution case or may otherwise be of assistance to the Defence,

(11) the Crown produce full and "untorn" copies of all torn statements supplied to the Defence in July, 1993."

The Grounds on which Relief is sought are :-

(1) for giving effect to the applicant's right to a fair and speedy trial guaranteed under Article 10 & Article 11(b) & (c) of the Hong Kong Bill of Rights Ordinance 1991 by ensuring that the Crown act fairly and honestly in District Case No. 366 of 1993,

(2) for ensuring that the Crown complies with their duty to act towards the applicant with complete frankness and good faith,

(3) for ensuring that the Crown complies with the requirements of natural justice by giving prompt and adequate reply with stated reasons to the applicant."

5. The immediate problem which arises in these proceedings is the question whether the Court has jurisdiction to act in such a situation where the District Court is already seized of this matter.

6. I dealt with a similar question in Tung Chi Hung v. H.H. Judge Lugar Mawson and The Attorney General Unreported being MP 622 of 1992.

7. At p.7 of my judgment I stated :-

"The first question I have to consider, before going into the merits of this submission is the appropriateness of the present judical review.

Miss Hartstein for the 2nd respondent argued that the High Court has no jurisdiction to order a Writ of Prohibition to a District Judge. She referred me to sections 21I and 21K of the Supreme Court Ordinance, Cap. 4. These sections are as follows:

"21I. Orders of mandamus, prohibition and certiorari

(1) The High Court shall have jurisdiction to make orders of mandamus, prohibition and certiorari in those classes of cases in which it had power to do so immediately before the commencement of the Supreme Court (Amendment) Ordinance 1987 (52 of 1987).

(2) Every such order shall be final, subject to any right of appeal therefrom.

(3) The power of the High Court under any enactment to require justices of the peace, magistrates or a judge or officer of a District Court to do any act relating to the duties of their respective offices, or to require a magistrate to state a case for the opinion of the High Court, in any case where the High Court formerly had by virtue of any enactment jurisdiction to make a rule absolute, or an order, for any of those purposes, shall be exercisable by order of mandamus.

(4) In any enactment -

(a) references to a writ of mandamus, of prohibition or of certiorari shall be read as references to the corresponding order; and

(b) references to the issue or award of any such writ shall be read as references to the making of the corresponding order.

21K. Application for judicial review

(1) An application to the High Court for one or more of the following forms of relief -

(a) an order of mandamus, prohibition or certiorari;

(b) an injunction under section 21J restraining a person not entitled to do so from acting in an office to which that section applies;

shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

(2) An application for a declaration or an injunction (not being an injection mentioned in subsection (1)) may be made in accordance with rules of court by way of an application for judicial review, and on such an application the High Court may grant the declaration or injunction claimed if it considers that, having regard to -

(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by such orders; and

(c) all the circumstances of the case, it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court, and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(4) On an application for judicial review the High Court may award damages to the applicant if -

(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages.

(5) If, on an application for judicial review seeking an order of certiorari, the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.

(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."

The Court of Appeal considers a similar problem in George Tan v. His Honour Judge Cameron & Attorney General, unreported being CA No. 81 of 1991. Silke, V-P commented on the jurisdiction of the High Court to entertain applications for Orders for Prohibition and Certiorari at page 54 of his judgement. He had this to say:-

" So: while specific provision is made for the issue of mandamus to a District Court judge no such provision is made for the issue of for prohibition and certiorari. There is no specific reference in either case to the appellate process.

Appeals in habeas corpus matters are provided for by s 24 of the Supreme Court Ordinance which reads:

"An appeal shall lie as of right to the Court of Appeal from any decision of the High Court on a criminal or civil application for habeas corpus, whether the High Court orders the release of the person restrained or refuses to make such an order.".

Under s 25 of the same Ordinance, where a person has been sentenced for an offence in the magistracy or the District Court, he may apply for an order of certiorari to remove the proceedings before the magistrate or judge of the District Court into the High Court.

No specific provisions are made for the issue of either prohibition or certiorari before conviction has been recorded. That is the legislative background. But I would add this that Order 2 subrule 3 of the Rules of the Supreme Court states:

"These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 59, Order 62 or Order 115 applies."

When this was drawn to the attention of counsel in the course of the hearing of this matter Mr. Hamilton sought to pray it in aid of his general contention that judicial review proceedings can only be civil in nature."

8. I have no doubt that these observations are applicable to the present case. Although the Applicant does not specifically state that he is seeking a Prohibition this is in effect the remedy he asks for.

9. He asks me to make an order to permanently stay the proceedings unless the Respondent complies with the demands he makes.

10. A significant feature of this motion is that the Applicant has not at any time seen fit to make an application to the District Court for an order along the lines of the demands he is making. I have no doubt whatever that the correct procedure to be adopted by the Applicant would have been to apply to a District Judge for an order rather than attempting to invoke the jurisdiction of the High Court by way of Judicial Review.

11. Even if I am wrong in this it would seem to me that the application is doomed to failure on its merits. The Applicant's failure to make any application to the District Court in the proceedings concerning him leads to a situation whereby so far as the District Court is concerned there is no reviewable Decision. No District Judge has made any Decision.

12. I have earlier cited verbatim the part of the Applicant's application for leave dealing with the Decision or order which the Applicant is attempting to impugn. It is not clear what the Decision is.

13. From the context of the papers the complaint seems to be the failure of Independent Commission Against Corruption or the Attorney General to furnish all of the information which is being sought by the Applicant. As I have indicated earlier in this judgment neither of these parties appear to have made Decisions which are Judicially Reviewable. They have not at any time either expressly or impliedly refused to comply with any legal requirement. It is clear from the Affidavits which have been filed that the Prosecution is ready and willing to comply with every legal requirement when the time is ripe to do so. In the light of the evidence of ongoing investigations it is clearly premature for disclosure to be made until the inquires have been concluded.

14. For the reasons I have given I have come to the conclusion that this application must be dismissed and I so order. I will hear the parties on costs.