|
HCAL 123/2005
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 123 OF 2005
____________
BETWEEN
| |
YEUNG CHUN PONG |
1st Applicant |
| |
TSE MAY WAH |
2nd Applicant |
| |
CHIK KAM FAI |
3rd Applicant |
| |
and |
|
| |
SECRETARY FOR JUSTICE |
Respondent |
____________
Before: Hon Reyes J in Chambers
Date of Hearing: 10 November 2005
Date of Decision: 10 November 2005
_______________
D E C I S I O N
_______________
1. I propose to dismiss the application to set aside leave.
2. My reason is that I believe that there are special circumstances justifying the hearing of an application for judicial review here, despite ongoing criminal proceedings.
3. The right being asserted (namely, the right not to be tried twice for the same or substantially the same offence) is a serious and fundamental right at common law.
4. If the Applicants are correct, it would be oppressive for them to be tried a second time in Hong Kong, the Applicants having already once been acquitted by a Macau court. However, if the Applicants’ contention cannot be tested by judicial review now and must await normal appeal following the ongoing criminal proceedings, the Applicants would be oppressed by the very wrong which they are seeking to avert. The Applicants would by the time of any appeal have already been tried twice. Their fundamental right (if valid) would have been rendered nugatory.
5. On the other hand, the ongoing criminal proceedings are presently adjourned due to constraints of the trial judge’s diary. The proceedings will not resume until next year. It is possible to hear the judicial review this Saturday without (on the footing that the Applicants are wrong) delaying the trial.
6. It goes without saying (and is implicit in my having granted leave for judicial review) that I believe the Applicants have an arguable case.
7. In those circumstances, there seems every reason to proceed with the substantive judicial review hearing this Saturday.
| |
(A.T. Reyes)
Judge of the Court of First Instance
High Court |
Ms. Gerard McCoy, SC leading Mr Philip Wong, instructed by Messrs. Lau, Chan & Ko, for the Applicants.
Mr Kevin Zervos, SC/SADPP leading Mr William Tam, SGC and Miss Yasmin Mohamed, GC of Department of Justice , for the Respondents.
On appeal by the 1st, 2nd and 3rd applicants to Court of Appeal. Appeal dismissed. Please refer to the appeal judgment of CACV368/2005
|