WONG SHE WAI v. CHENG MAN NGOK and Others

1997, No.MP26

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for leave to apply for judicial review against certain orders said to have been made by H.H. Judge Longley on 18th November 1996 in the District Court. The applicant is one of four defendants who had been charged with a series of offences in the District Court. On 2nd September 1996, H.H. Judge Beeson ordered that the cases against them, contained originally in four separate charge sheets, be consolidated, pursuant to powers which she purported to exercise under section 24B of the Criminal Procedure Ordinance. On 13th November 1996, there was an application by one of the defendants to quash the consolidated indictment or, alternatively, to sever it, and submissions were advanced to the effect that she had had no jurisdiction to make the order she made and that the order was invalid. On 18th November 1996, H.H. Judge Longley ruled that the order for a joint trial was a nullity for which reason the original plan envisaged by the four separate charge sheets should hold good and that there should be four separate trials. The applicant is a defendant in all four cases, but the other defendants are arraigned in respect of one case each. On 21st November, three of the defendants, namely the 2nd, 4th and 5th defendants pleaded guilty to the charges against them, the applicant being the 1st defendant, and trial dates for all four cases were fixed.

2. The first trial started on 11th December in which the 1st and 3rd defendants appeared as the only defendants. Preliminary applications were made and prior to the beginning of that trial on 11th December, by which I am today told it was sought to have those proceedings stayed. Those applications were unsuccessful. On 11th December apparently an application was made for the trial to be adjourned so that the subject matter of this application could be ventilated. That application for an adjournment was refused.

3. The first trial therefore proceeded and is still in train. The second trial was due to begin today and has been stood over to next Monday. A third trial is due to begin in February and the fourth in March. I have also today been told that there is a proposal in the air by which the three defendants who had pleaded guilty might be sentenced later this month in advance of the remaining three trials, rather than after the conclusions of those trials as would be the normal practice.

4. The present application before me is dated 3rd January 1997. The relief which is now sought pursuant to certain amendments which were made this morning by Mr Tse on behalf of the applicant, is for an order for certiorari quashing the ruling of Judge Longley that the order by H.H. Judge Beeson for joint trials of the four separate charge sheets was one she had no jurisdiction to make and was a nullity; an order quashing Judge Longley's ruling or decision that the trial should proceed on the four separate charges, and various other allied declarations to the same effect. I am also asked today that, in the event that I grant leave to apply for judicial review, I should direct that all four trials be stayed on an interim basis pending the determination of this application.

5. The application for leave contained no request for a hearing. It came before me last Friday afternoon to consider on the papers. I then took the view that leave should not be granted but decided to allow the applicant the opportunity to address me at a hearing if he so desired. A letter went to the applicant's solicitors this Monday, 6th January, with that offer, stating also the reasons for which I was then minded to refuse leave. Conscious of the fact that one of the trials was well under way, and another due to begin this week, and also conscious of the fact that the applicant sought a stay of these various criminal proceedings pending determination of the substantive application in the event that I granted leave, I required the applicant, if he sought a hearing of the application for leave, to notify the respondents of the application and of the time of such a hearing. The respondents were also notified that certain representations by them, in particular on the question of delay, would be welcomed by the court.

6. Against that background, I have before me today the applicant and all respondents⁽¹⁾¹ all represented by a counsel. This therefore remains an application for leave to apply for judicial review but it is on notice.

¹ (1) Post judgment note : The sixth respondent was not present nor represented.

7. The four charge sheets contained 44 charges. The applicant was the only defendant common to all 44. Each sheet followed the same pattern. The first charge on each sheet is a charge of conspiracy whereby the 1st defendant is charged with conspiring with a named defendant to defraud an officer or officers of the Hong Kong Immigration Department by dishonestly making certain specified representations. Those representations have to do with a scheme whereby workers from mainland China are permitted to come into Hong Kong to work for subcontractors on the new airport project. They are only permitted in if certain conditions are met, including the payment of a minimum wage. The representations suggested include representations about the amount of pay the workers were to receive. So there were four separate conspiracy charges, each was the first on each separate charge sheet, and on every one of the conspiracy charges, the defendant is one of the two conspirators. On the first charge, the 2nd defendant is named as the other conspirator; on the third charge, the third defendant and so on. The balance of the charges in each of the charge sheets are a certain number of substantive offences, alleging that on a given day the defendant and the other of the defendants named in the conspiracy count on that sheet caused a false statement to be made in an employment contract. Each charge relates to a different employee and the wage specified sometimes differs as between the charges.

8. The important fact to note is that as far as it concerns the conspiracy charges, if one removes the names of the alleged offenders the wording of what remains is the same. This is not the case with the non-conspiracy charges.

9. Section 24B of the Criminal Procedure Ordinance provides as follows :

"24B. Joint trial of indictments

Where 2 or more indictments each contain any one count alleging the same particulars, other than the names of the persons concerned in the commission of the offence, the court may, on the application of the Attorney General, order that such indictments be tried together."

10. Section 24B applies to proceedings in a District Court as well as to those in the High Court (see s.79(4) of the Criminal Procedure Ordinance). It is said that it was pursuant to the provisions of section 24B that the application before H.H. Judge Beeson was made by the Crown, and that the order which she made for consolidation was an order purportedly made under this section, and pursuant to no other provision. The application for consolidation was made by the Crown which had prepared a consolidated sheet of charges, 44 in number, which would, upon the order being made, stand as a single charge sheet. All parties save for the 3rd defendant at that stage supported the application. The 1st defendant was particularly averse to separate trials. He did not want to meet the costs of four separate cases and counsel for him suggested that separate trials would place his client in double jeopardy. Counsel for the defendants, save for the third, asserted that a consolidated trial would save time and the evidence relevant to the various charges was largely the same. The consolidation order was made, and the trial date set for 18th November 1996 and the length of the trial was estimated at 30 days.

11. As I say, on 13th November, counsel for the 3rd defendant applied for the consolidated charge sheet to be quashed and that it be severed. Counsel for the 3rd defendant argued that H.H. Judge Beeson had no power in law to consolidate, and various other arguments were put forward which are not necessary for me at this stage to rehearse.

12. It was argued in the alternative that there should be an order of severance of the charges or of the trials of the various accused. In the event, H.H. Judge Longley decided the matter, as is apparent from his ruling, on the first limb of the argument only. He did not touch upon the alternative application for severance. In essence, he preferred the contention that whilst the conspiracy charges on their face contained the same particulars but for the names of the alleged offenders, section 24B must be construed as referring to particulars of a common offence. Only counsel for the 1st defendant had dissented from that view. The contrary argument, which did not find favour with the learned trial judge but which was put forward on behalf of the Crown and the 1st defendant, was that the fact that there was not a common offence is a matter to which the court would have regard in deciding whether or not to make the order under section 24B. Only the conspiracy charges were said to fall within the province of that section. The charges of the substantive offences clearly did not. The judge was of the opinion that section 24B was to be read subject to the requirement that the same particulars referred to in the section relate to a common offence, and presumably on the footing that the conspiracy offences were self-evidently not the same conspiracy offences, he decided that the order of Judge Beeson was outwith her jurisdiction to make and was therefore a nullity. Accordingly, the cases would be tried separately. It is said that he made no order to quash the indictment although I think that that can be readily implied from what he did. It is said by the applicant in support of the application for leave that H.H. Judge Longley had no jurisdiction to overturn the decision of H.H. Judge Beeson and that he was somehow acting in an appellate capacity when he did so.

13. It is said that H.H. Judge Longley was wrong in treating the order of Judge Beeson as a nullity, that he purported to act in an appellate role when embarking upon that course, and it is further said that in any event, section 24B does not bear the very restricted meaning which H.H. Judge Longley gave to it.

14. It seems to me there are two questions which, for the purposes of today's application, I have to answer. The first is whether further investigation may show that the decisions of Judge Longley as to the ambit of section 24B and as to the validity of Judge Beeson's order were erroneous; and secondly, whether there has been undue delay in the launching of this application.

15. Contrary to the conclusion which I have provisionally reached and conveyed to the solicitors for the applicant, I am of the view, having heard counsel, that an arguable case has been raised as to whether the order of Judge Beeson was a nullity and whether Judge Longley in effect overruled a decision on the law which she had made, and if so, whether he had power to do that. I am also satisfied that an arguable case has been raised as to the correct interpretation of section 24B of the Ordinance.

16. I am next required to ask whether there has been such delay as should preclude the granting of leave. There certainly has been delay and the application has not been prompt. I do not think the applicant can seriously be criticised for the delay which preceded the determination of the application for stay, namely, the application which followed the ruling on 18th November. But delay after that, especially delay after the judge refused the application for an adjournment on 11th December, was delay for which there is little excuse in the sense that, in my judgment, it could clearly have been made before the receipt of the transcript of the judge's ruling. I will not however preclude the grant of leave on this account since in view of the other decisions to which I have come, I see no substantial hardship to any defendant nor particular detriment to the conduct of the proceedings if I grant leave. Indeed if the submissions put forward today turn out to be well founded as to the validity of the proceedings in the four cases, then there will, if the other three trials which have not begun proceed, have been occasioned considerable waste. I take into account the submissions of the Crown that it is highly undesirable that criminal proceedings which are in train should be interrupted by applications for judicial review, especially since there are other avenues of ultimate redress. That must generally be so, but save in the case of the first trial, which is already well under way, none of the other cases has started, none indeed is due now to start in the next week or so, or even perhaps the next few weeks. And it is the fact that this application is directed at the question of the validity of the proceedings.

17. I will accordingly grant leave to apply for judicial review of the judge's decisions and orders which are sought to be impugned by these proceedings. I shall not however stay the current criminal trial which is underway which is No.589 of 1996. The fact that they are well in train at the time of this application is a matter which lies squarely at the door, in my judgment, of the applicant who could have launched this application before their commencement and has significantly delayed before doing so. It is wholly undesirable, in my judgment, to halt the proceedings at this stage bearing in mind especially the consequences should it transpire that the application for judicial review fails.

18. The 3rd defendant, through Mr Chandler, says that the matter might and is bound to work unjustly as against his client. I take his submissions into account. I note that his client has not sought to impugn the proceedings by way of judicial review. He has made attempts to halt them in the course of trial, which attempts have failed. I am of the view that the balance of matters which I have considered requires the current proceedings in trial 589 to continue. Certainly, I will not order their stay. I do however order stay of the 2nd, 3rd and 4th trials pending determination of the application for judicial review. I see no prejudice to anyone in that regard, certainly none that is significant. The fact that some of the defendants wish to be sentenced in the near future does not, in my judgment, weigh sufficiently against the desirability of having this particular matter determined before the future trials continue. It seems entirely undesirable to allow those cases to proceed if there is a judicial review of them which can be determined before they begin. I have been invited by Mr Hoo not to make any order for stay since the second and other trials are likely to be put back in any event because apparently the present case, No.589, is overrunning. Such a course would have the attraction, as far as his clients are concerned, of allowing the proceedings to continue insofar as they might be sentenced. I do not think that to be appropriate. It would be odd indeed to order only certain aspects of proceedings in these circumstances to be stayed.

19. Accordingly leave to apply for judicial review is granted. I order that there shall be an expedited hearing of the application for judicial review.

20. The stay order which I shall make is that the proceedings in District Court Cases Nos.588, 590 and 591 shall be stayed until the determination of the application for judicial review or until the court otherwise orders. I make one other order with a view to expedition of this matter. What I will say in relation to statements and affidavits is that any respondent who intends to use an affidavit at the hearing shall file it in the Registry within 21 days of today. That the applicant must enter his motion within 14 days of the grant of leave. I prefer to put you under a narrower time limit but I am not sure that I have the power to do so. I shall order the applicant to enter his motion within 10 days.