HKSAR v. CHAN PAK HOE PABLO

HCMA 754/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 754 OF 2010

(ON APPEAL FROM ESS 28970 OF 2009)

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BETWEEN

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J U D G M E N T

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1.  On the 22, 23 and 24 of June 2011 I heard an appeal from the appellant in relation to his conviction and sentence before Mr Anthony Yuen at Eastern Magistracy. On 23 August 2011 I delivered judgment in the said appeal. Throughout that appeal the respondent, which was named on all court documents as the Securities and Futures Commission, was represented by Mr Adrian Bell SC leading Mr Allen Lam on the instructions of the Securities and Futures Commission (although Mr Lam did not appear on the date of the delivery of judgment). Mr Lam had also appeared as counsel for the prosecution in the magistrate’s court on behalf of the Securities and Futures Commission, which was named on most of the related court documents in the magistracy as the prosecuting authority. Indeed, the information had originally been laid by an officer of the Securities and Futures Commission. The exceptions to this nomenclature were the magistrate’s own Statement of Findings and Reasons for Sentence, in which the headings to the documents cited the HKSAR as the prosecuting authority.

2.  Application is now made under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for a certificate that the following point of law of great and general importance is involved in the decision, namely:-

“Does the proper institution of an appeal to a judge under the Magistrates Ordinance (Cap. 227) against a decision of a magistrate, by operation of section 104(9) of the same Ordinance, preclude the same magistrate from exercising his powers, to which he otherwise would be so entitled, to review himself in respect of another decision not being the subject of the appeal in question?”

3.  The applicant for the certificate, however, is now the HKSAR, which is represented by Mr David Leung, Senior Assistant Director of Public Prosecutions and, indeed, the parties are duly cited in the Notice of Motion as the HKSAR (applicant) and Chan Pak Hoe Pablo (respondent).

4.  Mr Gerard McCoy SC, who appears for the respondent in this application (formerly the appellant at the appeal), questions the right of Mr Leung, as a legal officer, to make the application on behalf of the HKSAR in what has hitherto been a private prosecution conducted by counsel on behalf of the Securities and Futures Commission.  He thereby questions the jurisdiction of this application.  He relies on the decision of the Court of Final Appeal in New Chuan Kong Investment Co Ltd & Another v Securities and Futures Commission (1999) 2 HKCFAR 490 for the proposition that the Commission is a private prosecutor who must comply with certain obligations in relation to the prosecuting of an appeal.  He points out that section 388(1) of the Securities and Futures Ordinance, Cap. 571 allows that the Commission may prosecute an offence under the relevant provisions of the Ordinance in its own name but, where it does so, the offence shall be tried summarily before a magistrate.  That is indeed what happened here.

5.  He further submits that whilst the Secretary for Justice undoubtedly has the right to take over such a prosecution, if he substitutes himself as a party in any appeal brought under section 113 of the Magistrates Ordinance, Cap. 227 (which this one was), he must comply with the procedures set out in section 123 of the Magistrates Ordinance.  That section reads as follows:

“123. Right of Secretary for Justice to substitute himself as a party in appeals in certain cases

In the case of any appeal to which section 105 or 113 applies from a determination relating to or connected with an offence it shall be lawful for the Secretary for Justice, if he is not already a party to cause himself to be substituted as a party in lieu of the complainant or informant at any time before the date fixed for the hearing of the appeal by notice in writing to such complainant or informant and to the Registrar and thereupon such complainant or informant shall cease to be a party to any further proceedings and the Secretary for Justice shall be deemed to be a party.”

6.  Since the Secretary for Justice did not comply with these procedures, it is argued that he has no jurisdiction to apply for a certificate on behalf of the HKSAR where the prosecuting authority has at all times hitherto been the Securities and Futures Commission.  Mr Leung, as a legal officer, may only act in matters encompassed by section 4 of the Legal Officers Ordinance, Cap. 87, which do not cover the present position.

7.  The foundation of Mr Leung’s argument in response is article 63 of the Basic Law, which provides:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”

Since section 388(3) of the Securities and Futures Ordinance stipulates that nothing in the section derogates from the powers of the Secretary for Justice in respect of the prosecution of criminal offences, a Securities and Futures Commission prosecution is not the type of private prosecution to which section 123 of the Magistrates Ordinance would apply.  Furthermore, section 4(1) of the Legal Officers Ordinance permits a legal officer to act in

“(a) any matter which by virtue of any enactment in force in Hong Kong or under any law applicable to Hong Kong is entrusted to, or is within the discretion or control of or requires to be discharged by, the Secretary for Justice.”

8.  Mr Leung’s argument comes to this: since a legal officer may act in any matter within the control of the Secretary for Justice who heads the Department of Justice, and since the Department of Justice’s control of criminal prosecutions shall be free from interference, a legal officer may act to take over any criminal prosecution at any time.  Furthermore, since a prosecution by the Securities and Futures Commission is not of the type to which section 123 of the Magistrates Ordinance applies, the Secretary for Justice is not obliged to comply with that section.

9.  Mr Leung’s submission may or may not be right, although I can see a number of legal and practical difficulties with it; not least the function and validity of section 123 of the Magistrates Ordinance if the Securities and Futures Commission is a private prosecutor.  However, I should make clear that I am not coming to a concluded decision on the matter because of the view I take of Mr McCoy’s other objection to this application.

10.  When this appeal was argued over a three day hearing in June, the question posed by the certificate was never argued by Mr Bell, then leading counsel for the Securities and Futures Commission, never addressed by Mr McCoy, leading counsel for the appellant, and therefore never dealt with in my judgment.  It is true that it does appear as an ‘alternative’ argument in the very last paragraph of a supplementary written argument on behalf of the then respondent.  However, it was never developed in oral argument by Mr Bell nor was it even mentioned at any stage of the appeal.  I was concerned enough, lest I (or for that matter Mr McCoy) had not dealt with or otherwise misconstrued or overlooked an important argument which had in fact been argued by the then respondent, to adjourn the hearing of this application for Mr Leung to consult Mr Bell on this issue.  At the resumption of the application, Mr Leung properly informed the Court and confirmed that the matter had never been argued by anyone at the appeal.

11.  I have set out Mr Bell’s arguments in my judgment of 23 August 2011 at paragraph 55.  Had he wished to promote this argument, I would have expected this to have been the primary argument and his others, secondary or alternative.  And had it been mentioned as part of his oral submissions, not only would Mr McCoy have responded to it but I would undoubtedly have dealt with it.

12.  I believe there is an answer to the point now raised but it has not been argued fully even on this application and it is not appropriate for me now to have to give a second judgment on a matter not argued at the appeal proper.  If I may say, this application underscores one of the practical difficulties I have just mentioned when the Secretary for Justice, who was not a party to the trial or the appeal, simply takes over the case at this stage and in these circumstances in order to take a point which neither the parties nor the Court sought to develop or were concerned with at the appeal.  Such a course will also necessarily result in the ultimate court of appeal having to deal with a new argument without knowing the reasoning of the intermediate appellate court, a disadvantage adverted to in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at 369 H-I.

13.  In adjourning the matter to allow Mr Leung to consult Mr Bell, I also drew certain authorities to his attention, which make it plain that

“(i)t must only be under very exceptional circumstances that an issue dropped in the intermediate Court of appeal, and for that reason not dealt with or referred to by that Court, can be revived before (the Privy Council).”

(See Uduma Lebbe Ahamath and others v Levena Marikar Sariffa Umma [1931] A.C. 799 at 803, applied in Attorney General v Cheng Yick Chi & Others [1983] 1 HKC 14, and by the Hong Kong Court of Final Appeal in Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 55 and Flywin Co Ltd v Strong & Associates Ltd (supra)).

14.  In the light of those authorities, Mr Leung argued that there were very exceptional circumstances which would justify this appeal because the certified point was so important; and, if my judgment were left uncorrected, it would have a “huge impact” on magistrates exercising their review functions.  With respect, I cannot accept this submission, which is not improved by the use of hyperbole.

15.  The application for a certificate is refused.  It will be a matter for the appellate committee of the Court of Final Appeal to decide whether it is prepared, assuming jurisdiction, to entertain an argument that was not argued before this Court.

Costs

16.  Application is made by Mr McCoy for the costs of this hearing.  In fairness to Mr Leung, I have not in fact heard his response to the application in the event that I dismissed the application for a certificate.  Accordingly, if Mr McCoy is pursuing the application for costs, I will set the matter down for a 9.30 a.m. hearing on a date to be fixed in accordance with counsel’s diaries.