RE CHIANG LILY

HCAL 53/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 53 OF 2009

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J U D G M E N T

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1.  The applicant faces five criminal charges which, on 16 March 2009, were transferred for trial in the District Court by a magistrate, pursuant to the provisions of section 88 of the Magistrates Ordinance, Cap. 227, ("the Ordinance").

2.  This is the applicant’s second application for leave to judicially review a decision in the course of the proceedings against her. The first application for leave was granted by Hartmann J, on 16 May 2008 in HCAL42/2008, to judicially review the decision of the Secretary of Justice to transfer the trial on five charges to the District Court, contending, in essence, that by making that decision he had deprived her of her "right" to a trial by jury. The review was heard by me on 2 February 2009 and dismissed with costs, on 9 February 2009. The applicant gave Notice of Appeal on 13 March 2009, CACV 55/2009: that appeal is scheduled to be heard on 15 July 2009.

3.  By this application the applicant now seeks leave to judicially review the order by the magistrate actually transferring the proceedings, contending that s. 88 of the Ordinance is unconstitutional and, as a consequence, seeking to quash the order.

4.  The thrust of the present application is encapsulated in §2 of the applicant’s skeleton submission, which reads:

"The application concerns the constitutionality of section 88 of the Magistrates Ordinance, Cap.  227 (“MO”) and an order of Ms Bina Chainrai, a permanent magistrate, made on 16 March 2009 transferring the charges laid against the applicant in ESCC105/08 to the District Court pursuant to section 88 of the MO ("the transfer order"). The effect of this provision confers exclusively on the executive power to decide the mode of trial (including venue) in indictable cases. The applicant's case is that this is essentially a judicial power and is, in any event, not a prosecutorial discretion falling within the scope of the executive’s prosecution authority. The provision clearly infringes the principle of separation of powers enshrined in the Basic Law which mandates that judicial powers be exercised by the courts of the HKSAR whereas "the control of criminal prosecutions" be vested [under Article 63] in the Department of Justice."

5.  No acceptable explanation has been tendered as to why such a declaration was not sought in the previous proceedings.  Whilst a court does not give guidance on hypothetical situations or issues entirely of academic interest, I do not accept that it was necessary for the applicant to wait for the actual order of transfer to be made. The applicant has chosen to attack the decision by seeking an order of certiorari:  although because of the nature of such an order it is correct that the decision of the magistrate would first have to have been made before proceedings could have been commenced to challenge it, the applicant would not have been confined, in my judgment, to following that course.

6.   The contention that s. 88 is unconstitutional is at the heart of this application. That is a matter which both could and should have been raised in the previous proceedings for the self-evident reason that the transfer pursuant to s.88 inevitably would have followed upon the Secretary's decision. It was thus, in the circumstances of this matter, not a situation where the court would have been asked a hypothetical question.

7.  Section 88 of the Ordinance reads as follows:

“ (1)  Notwithstanding anything contained in any other provision of this Ordinance but subject to subsection (3), whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Secretary for Justice-

(a)  shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court; and

(b)  may, if the person is also accused of any offence triable summarily only, make an order transferring the charge or complaint in respect of the summary offence to the District Court.

(2)  An application under subsection (1) may be made either orally in open court or in writing.

(3)  Subsection (1)  shall not apply in relation to any proceedings transferred to be dealt with summarily by a magistrate pursuant to section 65F of the Criminal Procedure Ordinance (Cap 221) or section 77A of the District Court Ordinance (Cap 336) or transferred for a preliminary inquiry pursuant to section 77A of the District Court Ordinance (Cap 336). “

8.  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.

9.  In accordance with the procedure prescribed by Part III, s. 72(1) of the Ordinance, once a person is charged with an offence he is brought before a magistrate whereupon proceedings for his committal for trial commence.  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; 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. In the two latter events, the committal proceedings terminate.

10.  In respect of this applicant, the Secretary for Justice decided to follow the second course and applied to the magistrate to transfer the proceedings to the District Court. The applicant disagreed with that decision, expressing a preference for a trial in the Court of First Instance. The committal proceedings were adjourned to enable representations to be made, unsuccessfully in the event, to the Secretary for Justice. I see no necessity to repeat, nor any advantage to be gained by doing so, the history of this matter: it appears in detail in my earlier judgement to which the curious may refer if necessary.

11.  Article 63 of the Basic Law provides:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference."

12.  It has long been recognised in Hong Kong that, the decision as to forum is that of the Attorney General, now the Secretary for Justice, albeit that the areas in which he is able to exercise that discretion may be proscribed by, for example, s. 88(1) of the Ordinance and s. 14A of the Criminal Procedure Ordinance, Cap. 221.

13.  Well prior to the enactment of the Basic Law, in Attorney General v TSA Lai Shing HCMA817/1987, O’Dea J observed:

“5. The Court in which a person is tried is essentially one for the Attorney General to select. That choice can only be properly exercised if the Attorney-General or someone whom he has authorised on his behalf is given the opportunity to assess the nature of the alleged offence, whether the defendant might merit a heavier sentence by reason of a bad previous criminal record and obviously other factors which are considered relevant. It is a decision which should not be left in the hands of just anyone and it is not one that can be effectively made overnight.” [Emphasis supplied]

14.  More recently, in Secretary for Justice v KONG Tung-sheung CAAR6/2004 the Court of Appeal implicitly acknowledged that the choice of venue was that of the prosecution, when it noted:

“Of course it is true that this was not the worst kind of indecent assault.  Had it been more serious, no doubt the prosecution would have selected a different venue for trial where a higher sentence could be imposed.” [Emphasis supplied]

15.  Further, when considering the effect of Article 63 of the Basic Law, in HKSAR v Pearce [2006] 3 HKC 105, Beeson J said, 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....” [Emphasis supplied]

16.  It is, moreover, well settled that the discretion of the Secretary for Justice, which may be exercised without reference to an accused person, 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] 4 HKC 582 in considering Article 63 of the Basic Law. It is as much a part of a prosecutorial function to determine venue as it is to determine whether there should be a prosecution; which charges to prefer; which witness to call.

17.  As Cheung J observed in LUK Ka-cheung v The Market Misconduct Tribunal and Ano [2009] 1 HKC 1:

“40.  …the (pertinent)philosophy behind the Basic Law is one of continuity, and it would be a very surprising suggestion indeed if anyone were to suggest that the Insider Dealing Tribunal, which had been established before 1997 to deal with a particular type of evil affecting the financial markets that had been identified by the executive/legislature, had suddenly become a usurper of judicial authority after the coming into force of the Basic Law.

41.  Another important fact, in my view, is this: as the Australian authorities have pointed out, if the subject matter is one that has, traditionally or historically, been the subject of adjudication by the courts of judicature, that is an indication that what is involved is the judicial power of the State.”

18.  I would respectfully adopt that approach. Not only was the District Court established decades before 1997 and the procedure for transfer been extant since its establishment but the decisions earlier referred to demonstrate ongoing recognition, both pre- and post-1997, that whether or not to transfer a matter to the District Court rests in the discretion of the Secretary for Justice.

19.  The “control” of criminal prosecutions, it seems to me, must include, of necessity, the decision as to the venue of trial: s. 88 of the Ordinance provides a mechanism whereby the Secretary for Justice, having decided to terminate the committal proceedings against an accused person, is able to secure the transfer of the further conduct of the proceedings to the District Court, the venue which, in the exercise of his discretion, he has determined to be appropriate.

20.  In the circumstances I take the view that it cannot sensibly be contended that the selection of venue of trial is an exercise of a judicial power.  The magistrate exercises the judicial power when he makes the order in accordance with the provisions of s. 88 of the Ordinance, but the Secretary for Justice does not do so when he makes the decision to apply for transfer albeit that the magistrate is bound to grant the subsequent application.

21.  Consequently, I am not satisfied that the applicant has made out a reasonably arguable case which enjoys realistic prospects of success (Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319). As a result the application for leave is refused.

22.  In view of my conclusion I find it unnecessary to deal with the contention by the prosecution that these proceedings themselves constitute an abuse of process, as attractive as the submission may be.