RE KO KIT

cacv 138, 139 & 140 /2008

CACV 138/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 138 of 2008

(on appeal from HCAL NO. 45 of 2008)

________________________

AND

CACV 139/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 139 of 2008

(on appeal from HCAL NO. 44 of 2008)

________________________

AND

CACV 140/2008

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 140 of 2008

(on appeal from HCAL NO. 46 of 2008)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Stock JA (giving the judgment of the Court):

1.  On 27 May 2008, we dismissed an appeal from a judgment of Hartmann J by which he refused three applications for leave to apply for judicial review.  The applications for judicial review constituted satellite litigation seeking to set aside the refusal of a District Court Judge to stay proceedings.  Satellite litigation should, we said, be permitted only rarely in criminal cases, a point strongly emphasized in other jurisdictions as well, previously, as in ours.  We took the view, as had Hartmann J, that this particular case, viewed in its full context, was not a case for the adoption of that wholly exceptional course.

2.  The applicants have each filed a notice of motion by which they seek leave to appeal to the Court of Final Appeal from our decision and the application as framed is an application under section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  But Mr Lee, SC, for the applicants, this morning properly concedes that that is not the appropriate limb for this application which is in a criminal cause or matter, and the application is therefore now presented under section 32 of the Hong Kong Court of Final Appeal Ordinance for a certificate by this Court that points of law of great general importance are involved in our decision.

3.  The questions posed have been slightly modified from those in the notice of motion and they are now as follows:

“(1)      Whether it is permissible for an accused to launch an application for leave to apply for judicial review against a decision of a trial judge in the District Court not to grant a permanent stay of an on-going criminal proceedings, on the ground that the continuation of the proceedings would be an affront to the pubic conscience after a finding by him of a deliberate violation of an accused person’s right to legal professional privilege (“LPP”);

(2)        If the answer to Question 1 is yes, whether a threshold higher than the “Arguability Test” recently laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie C W Cheung & Another [2008] 1 HKLRD 319 should be adopted, namely, the applicant has to show that the decision under challenge is clearly wrong;

(3)        Where it was found that a violation of an accused person’s right to LPP by law enforcement officers was deliberate, in what circumstances would the court hold that such a violation constitutes an affront to the public conscience justifying a permanent stay of prosecution against the accused person; and

(4)        In a case where a number of accused persons are jointly charged of conspiracy offences, and the prosecution has obtained information through the violation of one of the accused persons’ right to LPP who does not waive his or her privilege, if a stay be ordered in relation to the said accused person whose LPP was infringed, whether a stay should also be ordered in relation to the other accused persons.”

4.  As to the first question, there are two points, we think, to be made.  The first is that we did not find that it would never be permissible to mount an application for judicial review on the ground suggested.  Secondly, the matter is fact-sensitive as the judgment showed in the court below, for the judge said that there was nonetheless in the full circumstances of this case not an affront to the public conscience.

5.  In relation to the second question, we did not suggest a threshold test higher than the arguability test for the application for leave.  We specifically pointed out that in the case before us the question of arguability was not the sole issue (see para 27 of our judgment).  There was a second and key issue: namely, the principle that judicial review was a remedy of last resort, so that especially in criminal cases there should not – as has become the habit – be satellite litigation, save in the most exceptional cases, and it is in the context of that question that we referred to a variety of matters to which the judge had referred in his decision-making process, reasons which on their face appeared relevant and which, if they were to be examined further, should be examined in the normal course of the appellate process.  In short, this was not one of those highly exceptional cases in which a collateral challenge was warranted.  We did not agree, incidentally, with the suggestion in argument before us that our judgment is to be read as deciding that the mere absence of a transcript of evidence is determinative against such applications.

6.  The third and fourth questions are fact-sensitive and not in our judgment suitable for certification.

7.  Accordingly, we refuse to certify the questions posed.