HKSAR v. TAM TAK CHI

DCCC 927/2020
DCCC 928/2020
DCCC 930/2020

[2020] HKDC 1153

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 927 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 928 OF 2020

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 930 OF 2020

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R U L I N G

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1.  Under article 44(3) of The Law of the People’s Republic of China on Safeguarding National Security in the HKSAR (“the National Security Law”), all proceedings in relation to the prosecution for offences endangering national security in the District Court shall be handled by the designated judges in the District Court.

2.  The prosecution has applied for assignment of a designated judge to handle these proceedings based on, inter alia, the above provision.  The applicability of the National Security Law to these cases is disputed by the defence, who argues that the sedition offences under section 10 of the Crimes Ordinance, Cap 200, with which the defendant is charged are not offences endangering national security.  The dispute will have to be determined by the court.

3.  The prosecution further seeks a direction that the application be listed before a designated judge for argument.  That is also disputed by the defence, who contends that if the prosecution’s direction is allowed, it would have granted what the prosecution applied for at the outset.

4.  At the last hearing, I adjourned the proceedings to today and invited for submissions to better appreciate the argument of both sides.  I am grateful for the submissions of the parties. 

5.  Having considered their submissions, I can see the possibility of ultra vires if the application is not determined by a designated judge.  A non-designated judge who rules in favour of the prosecution would in effect be confirming that he/she personally lacks jurisdiction to handle the argument in the first place.  His/her decision may be subject to challenge by way of judicial review.  On the other hand, if he/she rules in favour of the defence, then the prosecution may persist in arguing the jurisdiction point on appeal or judicial review. 

6.  I do not think the doctrine of de facto judge would avail the defence.  The basis of the doctrine is said to be that the public must be able to rely on the acts of judges and officers so long as there is no reason to suppose that they are not validly appointed.[1]  By refusing to give the direction sought, I would in effect be confirming that the judge presiding over the argument would not be a designated judge and the doctrine would not apply.  It has also been said that the doctrine will not apply to “someone who knows, even if the world knows not, that he is not qualified to hold the office he is exercising”.[2]  A non-designated judge would certainly know that he/she has not been designated.

7.  The listing and handling of cases and the assignment of which judge to handle a case are matters within the sole responsibility of the Judiciary.  My function as the listing judge is to ensure that cases are listed before appropriate judges with the minimum of delay.  In my view, it is undesirable to leave a blemish on such an important issue so early in the proceedings, which may come back to haunt the parties in due course.  In the exercise of my administrative function, I have decided to list the substantive argument before a designated judge to avoid any potential ultra vires problems and so that the parties may focus on their substantive argument and not sidetracked by collateral matters.  

8.  As my decision is not based on any interpretation of the National Security Law, the judge hearing the argument would be free to construe the relevant provisions and decide one way or another. 

9.  As a matter of fact, I have a designated judge ready tomorrow morning at 10 am to hear the argument.  There will not be any delay in entertaining the argument.