CACV000149/1991
IN THE COURT OF APPEAL
1991, No. 149
BETWEEN
ATTORNEY GENERAL
AND
ALICK AU SHUI YUEN
Appellant
Respondent
--------
Coram: Hon. Sir Derek Cons, V.P., Kempster & Clough, JJ.A.
Date of hearing: 2 & 3 October 1991
Date of delivery of judgment: 3 October 1991
-----------------
JUDGMENT
-----------------
Sir Derek Cons, V.P., delivered the judgment of the court:
1. By these proceedings, listed before this court as Civil Appeal 149 of 1991, the Attorney General seeks to question the validity of an order made by Saied, J., in the course of proceedings which we understand to have been listed before him as criminal case No. 196 of 1991. The order in question relates to a Mr. Alick AU Shui Yuen, one of nine defendants in those proceedings, who there faces charges of assisting an offender to escape and conspiracy to pervert the course of justice.
2. Mr. Au was arrested on 12th June last year. He applied for legal aid on 29th April this year. On 1st July, almost one month after the Bill of Rights ordinance had been enacted and brought into operation, the Director of Legal Aid, having regard to rule 4 of the Legal Aid in Criminal Cases Rules and section 5 of the Legal Aid Ordinance, and not being satisfied that Mr. Au's disposable income did not exceed $2,200 per month and that his disposable capital did not exceed $15,000, refused legal aid. By reason of rule 8(2) the refusal is final.
3. On 3rd September in proceedings preliminary to trial before Said, J., Mr. Au made what in his own words he called "an application for legal aid under the Bill of Rights ordinance".The Crown did not oppose the application, for obvious reasons, and junior counsel for the Crown remained in court during the hearing of the application. The same day Mr. Au made submissions personally and on 5th September Mr. Desmond Keane, Q.C., made further submissions on his behalf. in addition the judge had the benefit of an amicus curiae in the person of Mr. Macrae, of evidence as to an incident which occurred after he rose on 3rd September and of the contents of two letters, one from the Director of Legal Aid and the other from Mr. Au. In giving his ruling at the close of the further submissions the judge observed:
"The upshot is that the defendant's plea to legal assistance being assigned to him under article 11(2) (d) of the Bill of Rights succeeds. I order that the proceedings against Mr AU be stayed until the necessary funding of counsel is provided, which, in all the circumstances of this case, I should imagine, it will not take too long for the authorities to deal with."
The following day, after yet further submission by Mr. Keane, the judge said:
"I think that in ail the circumstances it would be in the interests of justice if I were to direct that in the assignment of counsel for Mr AU the Legal Aid Department will henceforth play no role what so ever."
and finally:
"But, in all the circumstances I am in agreement with Mr Keane that I should recommend that it be the Registrar of the Supreme Court who should be concerned with assigning counsel and that the Registrar should be made aware about the availability of the funds in this exercise."
4. The judge's intentions were allegedly embodied in an order drawn up and sealed on behalf of the attorney but which, apart from serious imperfections on its face and the failure to mention the stay of the criminal proceedings which the judge undoubtedly ordered, still did not make clear exactly how he proposed to give effect to the success of Mr. Au's application; so much so that at the outset of these proceedings we were concerned to discuss with counsel whether, the attorney not wishing to appeal against the stay, anything further remained which was apt for the consideration of this court. Following submissions, however, we were satisfied that overall indication had been given which, if reflected in a suitable order naming the attorney as respondent to Mr. Au's application, which Mr. Findlay on the attorney's behalf undertook to draft and re-submit to the judge below for his approval, was sufficient to allow us to proceed to the next question, namely whether this court had jurisdiction to entertain an appeal.
5. The jurisdiction of this court is established by section 13 subsections (2) and (3) of the Supreme Court ordinance, Cap. 4:
"13. (2) The civil jurisdiction of the Court of appeal shall consist of -
(a)
appeals from any judgment or order of the High Court in any civil cause or matter;
(b)
appeals under section 63 of the District Court ordinance; and
(c)
any other jurisdiction conferred on it by law.
(3) The criminal jurisdiction of the Court of Appeal shall consist of -
(a)
appeals from the High Court or District Court under Part IV of the Criminal procedure Ordinance;
(b)
the consideration of questions of law reserved under section 81(1) of the Criminal Procedure ordinance;
(c)
the consideration of -
(i) applications by the Attorney General for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance;
(ii) references by the Attorney General of questions of law under section 81D of the Criminal Procedure Ordinance;
(d)
appeals by way of case stated from the District Court under section 84 of the District Court Ordinance; and
(e)
any other jurisdiction conferred on it by law."
In the instant circumstances the only paragraph which could possibly apply is subsection (2) (a), i.e. appeals from any judgment or order of the High Court in any civil cause or matter. The attorney must show that the judge's order was made in a civil cause or matter or we must decline to hear him further.
6. The question whether particular proceedings are in a civil cause or matter and the kindred question or whether they relate to trial on indictment have been extensively discussed in English authorities to which we have been referred, including EX parte Alice Woodhall [1888] 20 QBD 832, Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] AC 147, In re Smalley [1985] AC 622, Day and Another v. Grant [1987] QB 972, In re Sampson (1987) 1 WLR 194, Carr and Others v. Atkins [1987] QB 963, R. v. Central Criminal Court, Ex parte Randle v. Pottle (1991) 92 Cr. App. R. 323, Government of the United States of America v. Frederick Nigel Bowe [1990] 1 AC 500, the last being decided as recently as 4th August 1989. The true test we respectfully suggest is to be found in the speech of Lord wright in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government at p. 162:
"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a criminal cause or matter'. The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal."
His words were precised by Sir John Donaldson, M.R., in Day and Another v. Grant at p. 976:
"So Lord Wright was saying that you look not to the particular order under appeal, but to the underlying proceedings in which that order was made, and those are the proceedings which have to be characterised as either criminal or non-criminal."
Applying that test the order made by Said, J., was clearly in a criminal cause or matter.
7. In April last year in In re an application for judicial review by a firm of Solicitors [1990] 2 HKLR 146 another division of this court promulgates a different test, taking the view that the English authorities establish no general principle but were merely concerned to construe English legislation of the 19th century which is different from that pertaining in this jurisdiction. The question in this jurisdiction
"should be answered by considering the nature of the cause, and of the relief sought and granted."
In so doing the court came to the conclusion that all applications for judicial review, even from decisions themselves in a criminal cause, were in a civil cause or matter and subject to appeal to this court.
8. Mr. Findlay submits that the answer to the question thus posed in the present circumstances must necessarily lead to a civil conclusion. Mr. Au's claim, if properly formulated, as it should have been under section 6 of the Bill of Rights Ordinance, could only be brought by way of a civil action under subsection 1 (a) or by way of judicial review under subsection 1(b). We note in passing that the second paragraph would also appear to as to contemplate applications made in the course of other proceedings.Mr. Findlay further points to the nature of the claim, in substance a claim for money, and possibly to a very large amount. He adds, and we hope we fairly paraphrase all his arguments, that if this court declines jurisdiction the attorney will be deprived of any relief, or at least the criminal trial will be extensively delayed while he seeks relief by other means. That may well be true to some extent, but we have to abide by the law whatever the inconvenience.
9. In our view the law is clear and remains that laid down, as we have already indicated, in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government . With respect to the other division of this court, we find ourselves unable to pursue the course suggested in In re an application for judicial review by a firm of Solicitors by reason of the decision of the Privy Council in Government of the United States of America v. Frederick Nigel Bowe and in particular the final paragraph of their lordships' advice delivered by Lord Lowry. Dealing with modern legislation relating to the Bahamas he said at p. 535:
"Ultimately the question for decision admits of, and indeed demands, a simple answer. The certiorari and prohibition proceedings constituted a criminal cause or matter, as would a habeas corpus application if the subject matter were criminal in the sense described in Amand v. Home Secretary and the Minister of Defence of Royal Netherlands Government".
We are confident that had these words been brought to the attention of the other division it would have taken the view that we do today.
10. For these reasons we decline jurisdiction in these proceedings.
(Sir Derek cons)
(M.E.I. Kempster )
(P.G. Clough )
Representation:
J. Findlay, QC & P. Dykes Crown Solicitor for the appellant
G.J.X. McCoy (M/S Alsop Wilkinson) for the respondent