THE QUEEN v. THE ATTORNEY GENERAL AND ANOTHER

H.C.M.P. No . 567 OF 1988

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HEADNOTE

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Administrative Law - Judicial Review of 'decision' of Attorney General - Criminal Law - preferment of Bill of Indictment - judicial policy.

1988 MP No. 567

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for judicial review of a "decision" of the Attorney General taking steps to prefer a bill of indictment against an accused instead of taking committal proceedings against him.

2. The facts fall within a small compass.

3. Mr. TANG Yee-chun is a 49 year old merchant who was arrested in New York on the 6th March 1987 by United States Marshalls acting on behalf of the Commercial Crime Bureau in Hong Kong. He was extradited after contesting those extradition proceedings.

4. On the 27th January 1988 he was returned to Hong Kong where he was arrested and charged with some 45 counts of false accounting and one count of making a false statement as a company director. I have not seen or been provided with the copies of the precise charges in the indictment, but as I understand it, that adequately sets out the main basis of the charges against him.

5. There are apparently a number of witnesses to give evidence against him, and the trial may take some four to six months. There are a large amount of documents, some 18 volumes of documents which stand some 7 feet high, and on any view, it is a fairly complex prosecution.

6. Shortly after returning to Hong Kong, this applicant instructed a firm of solicitors who now do not act for him and they wrote to the Commercial Crime Bureau stating that their client wished to exercise his right to remain silent, and amongst other things, they wanted a copy of all the statements and documents.

7. On the 11th February, they re-iterated their request and said they wanted the documents translated into Chinese. This applicant apparently speaks the Chiu Chow dialect.

8. On the 11th February, a letter was written to Mr. Grossman, the Crown Counsel in charge, on behalf of the Attorney General, of this particular prosecution. The letter reads as follows:

       

        "Re: Mr. TANG Yee-chun

Upon the instructions of our client, we write to inform you that Mr. Tang Yee Chun opposes any application you may make for a Voluntary Bill, and he requests formal committal proceedings to be taken. "

Presumably it had come to the notice of those acting for this Defendant that the Attorney General was intending to make an application for a bill of indictment and so obviate the requirement of having committal proceedings.

9. On the 22nd February, Mr. Grossman replied on behalf of the Attorney General thanking them for their letter of the 11th February which only arrived on Saturday, the 19th, and he says this:

"I have decided to apply for a Voluntary Bill and I therefore decline to accede to your client's request that formal committal proceedings be taken. It is my view that you do not have a right to oppose our application for a Voluntary Bill but nothwithstanding this I undertake to advise you when I intend to apply for that bill."

He also dealt with a number of other matters which is not necessary for me to go into.

10. A different firm of solicitors came upon the scene and on the 12th March, in the course of a letter to Mr. Grossman said:

"We understand from your letter of 22nd February that it is your intention to proceed by way of Voluntary Bill in this matter and therefore deny our client the opportunity to test the case against him at committal. We would ask you in these circumstances to give us an undertaking not to apply for a Voluntary Bill without giving us 7 clear days notice of your intention to file the Bill application. "

On the. 14th March Mr. Grossman replied. The relevant paragraph reads as follows:

 

"In so far as the application for a Voluntary Bill is concerned you do not have any right to make representations and therefore I do not feel obliged to give you any undertakings in regard to our application. Notwithstanding this however I shall advise you, as I stayed to Messrs Loh & Company, when I intend to make the application but I make no commitment in regard to the number of days notice I shall give. "

11. There is some further correspondence between the parties, and on the 21st March, the solicitors acting for the Defendant again repeated their instructions to have committal proceedings, and the relevant words are:

"He requires formal committal proceedings to be taken and he intends to fully defend such committal proceedings"

12. On the 23rd March in a letter which has been added to the bundle, Mr. Grossman replied:

 

"Your comments on the Voluntary Bill are noted. However, I still intend to proceed with the application. "

13. On the 29th March, I heard an application ex-parte, albeit notice was given to the Attorney General, for leave to move for a judicial review on the grounds set out in the statement and accompanying affidavit. I was influenced in granting leave by two main reasons. First, it appeared to me from the papers then in front of me that a point of public importance was being raised, and, secondly, by a decision of the last Chief Justice, Sir Denys Roberts given in the case of Mak Foon-than ⁽¹⁾ when he granted leave to move for a judicial review of a Bill of Indictment which had been preferred. I shall revert to the case of Mak Foon-than later.

14. Now what is the law which governs the steps which the Attorney General, through Mr. Grossman, said were being taken with regard to obtaining consent for a bill of indictment. This is found in Section 24(a) of the Criminal Procedure Ordinance (Cap, 221), the relevant part of which states:

"(1) Subject to sub-section (2) no indictment charging any person with an indictable offence shall be preferred unless:

(a) the person charged has been committed for trial for the offence or

(b) the indictment is preferred by the direction or with the consent of a Judge. "

15. Part II of the Ordinance deals with 'proceedings Preliminary to Trial', and the Attorney General is given a number of powers with regard to procedural matters. It is clear that the only method by which a person ultimately comes to trial is either by a committal proceeding, or by an indictment which is directed or consented to by a Judge.

16. The relief sought in the Notice of Motion consists of a variety of declarations asking the Court to declare, inter alia, that this applicant is entitled to committal proceedings, and that the application by the Attorney General in preferring the bill to the Judge is an abuse of process, oppressive, or unlawful. Essentially what this case is about is that the applicant wishes to have a committal proceeding and the Attorney General wishes to have a Bill of Indictment preferred to a Judge.

17. Before I examine the matters, it is necessary to see what the role of the Court is. The High Court can in certain circumstances exercise a supervisory function over administrative actions where the decision maker is empowered by public law to make a decision which falls within that category of decision so lucidly explained in the speech of Lord Diplock in C.C.S.U v Minister for the Civil Service⁽²⁾.

"To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

   

(a) by altering rights or obligations of that person which are enforcebale by or against him in private law; or

    (b) by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he car legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for v contending that they should not be withdrawn. "

 

18. Two matters must be identified by the Court to enable it to control such action and give some appropriate remedy.

19. First, there must be a reviewable decision.

20. Secondly, the process by which the decision was reached must be flawed. The method by which the Court considers these two matters is by an examination of the factual background against which the-relevant decision is taken, and of the legal principles involved in that decision.

21. I have been provided with an affidavit of the applicant setting out certain matte matters; I have not been provided with any information from the Attorney General. With regard therefore to many matters such as the actual charges, the number of witnesses, whether those witnesses came from America or Hong Kong, the complexity of the case, I know really little.

22. It is important in this field of public law when a Court is reviewing some person or body entrusted with important powers, that the Court is provided with as much information as possible. Lord Donaldson in the English Court of Appeal decision of R v Lancashire C.C. ex parte Huddleson⁽³⁾ said at P. 945:

"          Counsel for the council also contended that it may be an undesirable practice to give full, or perhaps any, reasons to every applicant who is refused a discretionary grant, if only because this would be likely to lead to endless further arguments without giving the applicant either satisfaction or a grant. So be it. But in my judgment the position is quite different if and when the applicant can satisfy a judge of the public law court that the facts disclosed by her are sufficient to entitle her to apply for judicial review of the decision. Then it becomes the duty of the respondent to make full and fair disclosure.

        Nothwithstanding that the courts have for centuries exercised a limited supervisory jurisdiction by means of the prerogative writs, the wider

 

evolution of what is, in effect, a specialist administrative or public law court is a post-war development. This development has created a new relationship between the courts and those who derive their authority from the public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administration. "

and Parker L.J.said at p. 947:

"          In the vast majority of cases authorities whose decisions are challenged will no doubt put before the court all that is necessary to enable justice to be done, for I agree that they have, or should have, a common interest with the courts in ensuring that the highest standards of administration are maintained and that, if error has occurred, it should be corrected. I agree, therefore, that when challenged they should set out fully what they did and why, so far as is necessary, fully and fairly to meet the challenge.

        In so doing they will, in my view, be making full and fair disclosure and putting the cards face upwards on the table as referred to by Sir John Donaldson MR. I express my views in a rather more restricted way, for I would not wish it to be thought that once an applicant has obtained leave he is entitled to demand from the authority a detailed account of every step in the process of reaching the challenged decision in the hope that something will be revealed which will enable him to advance some argument which has not previously occurred to him. "

Although Mr. Findlay submitted that any information was irrelevant, Judges must be trusted to utilize information given to them only for the purposes of the instant matter. At some stage in the course of the process for obtaining consent from a High Court Judge, reasons must be given to the Judge and reasons must be formulated by the person applying for that indictment.

23. In this case, I have been somewhat troubled by an absence to provide the Court with reasons why the Attorney General decided to take the action he did, and as will be apparent from later in this judgment, it appears common ground that it is only in exceptional circumstances that committal proceedings are by-passed. I would have thought therefore that information on all aspects concerning this matter would be provide to me. I can well understand a reluctance by those in the Attorney's chambers not to furnish information which is of a sensitive or confidential nature. Speculation and potential criticism are obviated by short affidavits being filed, setting out the reasons why the Court is not being provided with certain information. I have, however, been given one important statistic this morning by Mr. Findlay. In the calendar year 1987, out of 233 indictments, 220 were dealt with by committal proceedings and 13 by applications for a bill. It can be seen readily by that statistic that only 5% of all the indictments in Hong Kong do not have prior committal proceedings.

BILL OF INDICTMENT

24. The procedure for applying for a bill is, as I have said, set out in Section 24(a) of the Ordinance. I am told by Mr. Findlay that the practice in Hong, Kong is to apply the English Indictments (Procedures) Rules 1971. It is clear from an examination of those Rules that the procedure is by an 'ex-parte' application and the accused is given no opportunity to be heard or make representations. In R v Raymond⁽⁴⁾ the history of bills of indictment is set out and I will not repeat it here. Lord Justice Watkins said at p. 160,

"We believe that the 'audi alteram partner' rule is inapplicable to the process of the preferment of a bill of indictment. There is nothing unjust in the 'ex parte' nature of this procedure, which is undertaken in exceptional circumstances".

 

25. By Rule 9, the Judge must be told the reasons why no committal proceedings are to take place.

26. Mr. Findlay accepts that as the procedure is 'ex-parte', all matters relevant to the exercise of the Judge's discretion must be disclosed.

COMMITTAL PROCEEDINGS

27. In such a hearing, the Defendant obtains a number of benefits. He can hear the evidence and cross-examine the witnesses; he can give evidence himself and call witnesses; at the conclusion, he can submit that there is no case for him to answer. All of these are essential safeguards to a Defendant and Judges have made it clear that committal proceedings are an important part of the system of criminal justice.

28. In R v. Raymond⁽⁴⁾, Watkins L.J. said "to prefer a bill of indictment ... is undoubtedly to take a very exceptional step. "

29. See also the judgments in Barton v The Queen⁽⁵⁾, where the exceptional nature of a such a bill was stressed.

30. The law, however, is that bills can be preferred and there are numerous examples when such a procedure is in the public interest. Counsel for the applicant has enumerated some examples, culled from decisions in the Courts, either reported or of general knowledge.

31. These are but some examples where committal proceedings were clearly inappropriate - they were exceptional cases. Circumstances, however, change. Commercial cases are more complex; there is often a large number of witnesses who come from all over the world. Reasons for by-passing committal proceedings will vary according to the nature of the charges, all the surrounding circumstances and the time when the Bill is preferred. What may be considered unimportant by one member of the Attorney's Chambers may become important at a later stage.

32. The safeguard to the Defendant in the procedure for applying for a bill is that the decision is entrusted to a High Court Judge. He can bring his own knowledge and experience to that task and he will know that he must find some exceptional circumstances for not having a committal.

33. It is said that by preferring the bill, the Attorney General was acting unlawfully in that he was taking a decision which would affect the legal rights of the applicant. It is, however, the Judge who would affect his rights if the bill was approved. All that is happening is that the Attorney General is setting in motion a procedure where the Judge mayor may not consent to a bill being preferred.

34. Mr. Cheng's basic complaint is that this is unfair because the Judge does not know what the wishes of the Defendant are, or his views on the reasons advanced. As far as this case is concerned, the Judge will undoubtedly know the views of the Defendant.

The 'decision'

35. In the light of what is set out above, I am of the opinion that there has been no decision which is justiciable.

36. The Attorney General, who prosecutes on behalf of the public, is under no duty to act judicially. This means that he must act responsibly, but he has no obligation to balance all the potentially conflicting issues before reaching a conclusion that committal proceedings are inappropriate. Further, there is no duty to communicate that conclusion to the defendant. His preferment does not lead to any administrative action by an authority endowed by law with executive powers.

37. The 'decision' to prefer a bill therefore meets none of the tests of reviewability set out in the C.C.S.U.⁽²⁾ case.

38. At the very worst, all that has happened here is that Mr. Grossman did not disclose in his letter the reasons why committal proceedings were considered inappropriate. A number of well-known authorities have been cited to me as to the giving of reasons. Various bodies do not have to give reasons for their decisions - see e.g. in Chun Yuet Bun⁽⁷⁾ and R v Regional Council Liquor Licensing Board⁽⁸⁾.

39. Mr. Grossman when he wrote the letter was acting within the frame-work of the legislation which authorises applications for bills. He was acting lawfully and fairly.

40. What appears to me to be potentially unfair is the procedure by which applications under Section 24(a) are made. Unless the legislation removes the right of committal proceedings, it is unusual in my judgment, to deprive a defendant of the important benefits of such proceedings on an ex-parte basis. The rules, however, so provide. Mr. Cheng submits that a defendant never knows the reasons why committal proceedings are not held and he has no opportunity to put his representations to the Judge hearing the application. That appears to me to be valid criticism. It is not criticism of the Attorney General, but of the system under which the Attorney General operates. The time therefore may have come when the procedure under Section 24(a) should be re-examined. We live in an age when there is open justice as well as open government, and fairness should be provided to all those coming within the criminal system. It must, however, be remembered that this is but a preliminary hearing. The importance is that the trial is conducted in a manner which is both fair and lawful.

41. As I indicated earlier, the applicant must show that the decision is reviewable and also that the process by which it was reached was flawed. There is, in my judgment, no justiciable decision. I also am of the view that even if there had been such a decision, it was not flawed.

POLICY

42. Mr. Findlay in his very able argument submits that the Courts will not interfere with the role of the Attorney-General nor become involved in the prosecution process.

43. In Gouriet v U.P.W. ⁽⁹⁾, Viscount Dilhorne at page 487 said

"The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts. "

44. In R v Cheung Sau Yat ⁽¹⁰⁾, both Cons, J. and Yang, J. (as they then were) considered, 'obiter', that the Courts could intervene if the Attorney-General exercised his discretion in an improper manner. In the light of more recent authorities, in my judgment a Court can only intervene if the Attorney-General's decision is initially justiciable and then it must be of such a nature as could be classified as 'outrageous'.

45. It is not for the Court to tell the Attorney-General what to do or the manner in which he should do it. It should avoid either influencing or interfering with the criminal process. It is the duty of the Attorney-General to prosecute those who break the law and he should be permitted to exercise that public function without being answerable to the court.

CONCLUSION

46. I said at the beginning of this judgment that one of the factors which influenced me in giving leave was the decision of Roberts C.J. in MAK Foon-than⁽¹⁾. This was an application for leave which is now reported. The learned Judge considered that it was arguable that the Attorney-General acted unfairly when he applied and was granted consent for a bill of indictment. On closer analysis, this decision, with the very greatest respect, must be wrong. In the present case, no bill had been preferred and the applicant was attacking the 'decision' to prefer - in MAK Foon-than⁽¹⁾ it had been preferred. I can conceive of no argument which permits a challenge to be made once a High Court Judge has consented to a Bill. Although that decision was reported in 1986, it was in fact heard in February 1984 and has been overtaken by a number of decisions in the House of Lords. I would only add that the learned Chief Justice intimated that the application for judicial review should be heard in chambers. With the greatest respect, such matters should be heard in open court. It would be a retrograde step if this type of proceeding is heard behind closed doors, and I would oppose as firmly as I can any incursion into the principle of open justice.

47. I have not set out all the submissions of counsel and I am grateful for their skill in presenting all the conflicting arguments.

48. This application is refused.

(1)  (1986) HKLR 629

(2)  1985 AC 374, at p. 408

(3)  [1986] 2 AER 941

(4)  1981 72 Criminal Appeal Reports 151

(5)  (1980) 147 CLR 75

(6)  (1938) 26 Cr. App. R. 103

(7)  (1988) HKLR 336

(8)  (1988) HKLR 576

(9)  (1978) AC 435

(10) [1979] HKLR 630