D v. SECRETARY FOR JUSTICE

CACV 98/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 98 OF 2013

(ON APPEAL FROM HCAL NO. 75 OF 2013)

________________________

________________________

__________________________

REASONS FOR JUDGMENT

__________________________

Hon Lam JA (giving the Reasons for Judgment of the Court):

1.  In this application for judicial review, the Applicant asks the court to reverse the Secretary for Justice’s decision to disclose some documents and information obtained or seized from the Applicant to the defendants in a pending High Court criminal case as unused materials. For the sake of maintaining the anonymity of the Applicant (which we believe to be necessary at this stage, without pre-empting any decision in this regard by the judge in the HCCC, in accordance with the principles laid down in Re BU [2012] 4 HKLRD 417), I will not state the particulars of the High Court criminal case in this judgment. Instead I shall refer to it as the HCCC. Leave to apply for judicial review was refused by P Li J on 30 April 2013. The Applicant now appeals against that decision.

2.  In an affirmation of the Applicant of 23 May 2013, he intimated that he would rely on an Amended Form 86 of 22 May 2013 in this appeal “to replace and substitute the Original Form 86” considered by the Judge.  This stance was confirmed by Mr Dykes SC[1] at the hearing before the court on 24 May.

3.  In the Amended Form 86, the relief sought was amended to confine the restraint placed upon the Secretary’s disclosure to an interim period up to the time when the trial judge in the HCCC seized of the conduct of the matter. At that hearing, upon clarification with Mr Dykes, my understanding was that so long as a judge in the exercise of criminal jurisdiction in the HCCC is seized with the matter, it would not matter whether he was the trial judge or otherwise.  

4.  On 3 June 2013, the court drew the attention of the parties to what I shall call the Kebilene point and invited submissions on the same. The point was formulated as follows,

“Given the ongoing criminal proceedings in the High Court, and given the acknowledgment by the Applicant that the court exercising criminal jurisdiction does have the power to hear the complaints of the Applicant with regard to the disclosure of materials to the defendants in the criminal proceedings, does the principle laid down in R v DPP, ex p Kebilene [2000] 2 AC 326 (applied in Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 at paras 67 to 70) militate against a judicial review of this nature?”

5.  Parties lodged supplemental skeleton submissions regarding the Kebilene point on 5 June 2013.

6.  At the outset of the hearing, the Applicant applied for the appeal to be heard in camera.  In accordance with the practice adopted in ATV v Communications Authority CACV 258 of 2012, 7 Dec 2013 para 9, the application was heard initially in open court.   

7.  After hearing counsel in open court, we decided that at least as far as the Kebilene point was concerned, as the arguments revolved around question of law and the general practice of the court (without any need to go into any allegedly sensitive materials) which are of some public importance, there was no justification for conducting this part of the appeal in camera, see ATV v Communications Authority [2013] 3 HKC 62.

8.  In the course of his submissions on the Kebilene point, Mr Dykes emphasized that the Applicant only sought a stop-gap measure pending the matter to be considered by the judge in the HCCC.   He said the Applicant would be contented if the Secretary for Justice could offer an undertaking to withhold disclosure until the matter is considered by that judge.

9.  At that juncture, Mr Zervos[2] indicated that the Secretary was prepared to give such an undertaking provided that the Applicant would proceed with the application to the judge in the HCCC expeditiously.  After some discussion, it was agreed that 14 days would be given to the Applicant to have the application set down before the judge.  It was appreciated that the matter may not be able to be heard immediately by the judge and hearing date has to be fixed by reference to his diary.  But Mr Zervos was rightly concerned about the expeditious resolution of the matter so that the trial in the HCCC would not be delayed.  Thus, the Secretary would initially give an undertaking to withhold disclosure for 14 days.  That would give sufficient time to the Applicant to approach the judge in the HCCC and the judge could deal with the need for interim protection after the 14 days.  

10.  In light of that, Mr Dykes did not consider it necessary to proceed with the appeal.  However, he sought leave for the appeal to be withdrawn instead of having it dismissed.  He submitted that this is an exceptional case and if the judge in the HCCC refused to deal with the application the Applicant might have to come back to this court.  In that event, he submitted that the Applicant could seek leave to reinstate the withdrawn appeal.

11.  Mr Zervos opposed that course and submitted the appeal should be dismissed instead.

12.  We were of the view that this is not an appropriate case to grant leave to withdraw.  Instead we considered that the appeal should be dismissed.

13.  Under common law, absent dishonesty or mala fides or some other wholly exceptional circumstances, as a matter of discretion, the court will not entertain judicial review proceedings which would interfere with the criminal process  including the decisions of the Director of Public Prosecute to prosecute or the decision of a judge to refuse to stay the criminal proceedings: see R v DPP, ex p Kebilene [2000] 2 AC 326; Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1; Chik Wen Fei v Secretary for Justice CACV 141 of 2008, 29 July 2008; Re Ko Kit [2008] 4 HKC 323; Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at para 51.

14.  Though the House of Lords disagreed with the Divisional Court as to how the discretion should be exercised on the facts of Kebilene, there was no disagreement between Lord Bingham of Cornhill CJ (as he then was, sitting in the Divisional Court) and the House of Lords on the above common law principle. At p.337D to E, His Lordship said,

“Where the grant of leave to move for judicial review would delay or obstruct the conduct of criminal proceedings which ought, in the public interest, to be resolved with all appropriate expedition, the court will always scrutinize the application with the greatest care, both to satisfy itself that there are sound reasons for making the application and to satisfy itself that there are no discretionary grounds (such as delay or the availability of alternative remedies or vexatious conduct by the applicant) which should lead it to refuse leave. The court will be very slow to intervene where the applicant’s complaint is one that can be met by appropriate orders of directions in the criminal proceedings.”

15.  The rationale of that principle is obvious.  Lord Cooke was contented to express his agreement with Mr Pannick’s submission in that regard in Kebilene at p.372D to E,

“… the contention put in the forefront was based on the undesirability of satellite litigation attending cases to be tried on indictment. It was said that the present criminal proceedings should not be interfered with by way of judicial review: that the trial, and if necessary, appeal processes should provide adequate remedies for the applicants if their human rights are violated. A risk or imminent violation could no doubt be dealt with similarly at the trial or on appeal.”

16.  His Lordship then said at p.372F,

“… the courts should be very slow to allow review of a consent to be used as a device for resolving points which would otherwise be dealt with in the ordinary course of the criminal proceedings. As a general rule, proceedings on indictment should not be delayed by collateral challenges.”

17.  In Hong Kong, what Stock JA (as he then was) had said at para 67 of the judgment in Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 is, with respect, a sound reminder as to why the discretion should be exercised with great care,

“There is a clear public interest in ensuring that charges, once before a court, must be tried. There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination. If those safeguards are not afforded in a particular instance, there is provided by the Legislature a prescribed appeal mechanism. That mechanism does not envisage interlocutory appeals or collateral challenges. That is for very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole. Sometimes disruption to and delay of a particular trial caused by a judicial review application --- or even by repeated applications in the one case --- may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability. This disruption may find aggravated form as in the present case, where there is an ex parte application made for leave; leave is granted without hearing the prosecutor respondent; an application is then made to set aside leave; that is refused; there is an appeal from that refusal, an appeal that may find its way to the Court of Final Appeal and, if the leave is not disturbed, there is a judicial review and renewed appeals from whatever decision emerges therefrom; and whilst all this is going on, hearing dates for trial are repeatedly vacated. The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing the court’s process.”

18.  As the judge in charge of the Constitutional and Administrative Law List, I have to say regrettably that attempts are still constantly made to mount such collateral challenges though rarely with much success.  A recent illustration is Yeung Ka Sing Carson v Secretary for Justice HCAL 59 of 2013, 26 March 2013.

19.  Though the present case is not concerned with a decision of the Director of Public Prosecution to prosecute nor with a decision on an application for stay of the HCCC, what the Applicant seeks to achieve here is nonetheless a substantial interference with the conduct of the criminal proceedings in the HCCC.  It cannot be disputed that the prosecution has a duty to give disclosure to the defence in the HCCC of unused materials within its possession or control: HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336.  The breach of this duty could result in material irregularity and unsafe conviction.  Thus, any attempt to fetter the prosecution in the discharge of that duty is potentially impinging upon the fairness of the trial in the HCCC.

20.  As mentioned, it was the Applicant’s case before us that the judge exercising the criminal jurisdiction in the HCCC should decide on the issues raised by the Applicant in the intended judicial review as argued before P Li J.

21.  The Applicant could certainly apply in HCCC for urgent interim relief if necessary.  There is no particular reason why the matter had to be proceeded by way of judicial review.  In our view, it is misconceived that until a trial judge is designated for the HCCC, there cannot be any application made in the HCCC for directions on matters like the disclosure of unused materials.  Once a case has been committed to the High Court, whenever an application for direction is made in the HCCC, it would have to be heard by a judge.  It could be either the Listing Judge or some other judge assigned for hearing the application. In a letter dated 5 June 2013, in response to a letter of 28 May 2013 from the Applicant’s solicitors, the Chief Judge told the Applicant that all pre-trial matters in the HCCC would be placed before a designated judge (who may not be the trial judge). 

22.  We do not accept Mr Dykes’ suggestion in his skeleton submissions that the Applicant had no recourse other than taking out this application for judicial review.  As at the date when the Applicant issued its original Form 86, the HCCC was extant and, faced with the decision of the Secretary for Justice, the Applicant could apply for direction in the HCCC, see R (WV) v Crown Prosecution Service [2011] EWHC 2480 (Admin).  In our view, this is what the Applicant should have done instead of proceeding by way of judicial review before P Li J.  There was no reason why the letter of 28 May 2013 could not have been written earlier. It is a clear case where the Applicant could have his remedy in the HCCC and as a matter of discretion it would not be appropriate for the matter to be dealt with by way of judicial review.

23.  Mr Dykes referred to R (WV) v Crown Prosecution Service, supra. to show that the decision of the Secretary for Justice on disclosure is amenable to judicial review. As a matter of jurisdiction, that must be correct.  However, before leave is granted, the court has to be satisfied that as a matter of discretion judicial review should be permitted in the wake of ongoing criminal proceedings.  WV was an unusual case.  The applicant in that case first went before the judge in the criminal case to prevent the disclosure of his identity.  The judge declined to intervene. Parties agreed before the judge that remedy could be obtained by way of judicial review. Thereafter, the applicant took out the application for judicial review. In such circumstances, it is not surprising that the court entertained the judicial review.  It should be noted that in the end the question of disclosure was referred back to the judge hearing the criminal case for his determination.  Thus, no argument was advanced on the Kebilene point.

24.  Therefore, we do not think that authority assists Mr Dykes in the present appeal.

25.  In addition to those reasons already canvassed in the authorities discussed above, there are other reasons why this application for judicial review should not be permitted.  Based on the written submissions before us on the substantive issues, ultimately it is likely to be a question of balancing of competing interests: the public interests of having a fair trial; the interests of the defendants in the HCCC to have access to unused materials; the interests of the Applicant in what I would broadly termed as his right to privacy or confidentiality.  The judge in the HCCC is best placed to conduct such balance.  He would also be in the best position to decide what procedure to be adopted in safeguarding everybody’s interest, including those of the Applicant in terms of his anonymity (and his desire to avoid access being given to the defendants in the HCCC to the materials which might reveal his identity) and those of the defendants in terms of their right to a fair trial (including the right to challenge the Applicant’s contentions on withholding disclosure).

26.  It is highly undesirable that such balancing exercise should be conducted by another court, with the possible implications in terms of appeals and consequential delay to the fair disposal of the criminal proceedings and the risk of conflicting decisions by the judge in the HCCC. In this connection, we do not agree with Mr Dykes that there would not be any disruption to the HCCC since relief is only confined to the interim period. In so submitting, counsel failed to take account of the fact that the judicial review is still at its leave stage.  If leave were granted, it would be quite some time before the substantive matter can be heard.  Further, the Applicant is not confining himself to relief of an interim nature.  He is also seeking declaratory relief which would pre-empt the determination of the question by the judge in the HCCC.  Moreover, there is always the possibility of appeal, or perhaps more than one round of appeals. Disruption to the HCCC is inevitable if leave to apply for judicial review is granted.

27.  The judge assigned to deal with all pre-trial applications would no doubt have a better picture of the overall progress of the HCCC than a judge hearing the intended judicial review and he could exercise case-management power regarding the disposal of this application in that light. 

28.  In our view, this is a clear case where the Applicant should pursue his case in the HCCC and as a matter of discretion leave to judicial review should not be granted.

29.  We are aware that the judge below did not refuse leave on the basis of the Kebilene point.  However, as we see it this is a fundamental point which should have been considered where there is a possibility that an application for judicial review may interfere with ongoing criminal proceedings.  Parties have been given fair notice of the point being considered.  We see no difficulty in upholding the refusal of leave on this basis.

30.  Mr Zervos SC suggested in his Supplemental Submissions of 5 June 2013 that the issues on disclosure have been decided by P Li J in refusing leave and therefore the principle of res judicata apply, citing Henderson v Henderson (1843) 3 Hare 100 and Total Lubricants Hong Kong Ltd v Christophe De la Cropte De Chanterac CACV 37 of 2012, 15 March 2013. We do not agree.  Once we have decided that the matter should be determined by the judge in the HCCC, the issues are within the province of the criminal proceedings.  In criminal proceedings, the principle of issue estoppel is not applicable, see DPP v Humphreys [1977] AC 1.  The judge in the HCCC is not bound by the decision of P Li J. 

31.  For these reasons, the appeal should be dismissed in any event. As regards Mr Dykes’ concern in terms of coming back to seek judicial review, such application would be based on a different set of circumstances. Thus, it should be a fresh application to be considered by a judge of the court of first instance instead of proceeding by way of reinstating this appeal. As presently advised, we do not see any basis for further judicial review once the judge in the HCCC has considered the matter.  Judicial review should not be pursued as a back-door appeal against a decision of a High Court judge in criminal matters when there is no avenue for interlocutory appeal in criminal proceedings under the Criminal Procedure Ordinance Cap 221.

32.  For these reasons we dismissed the appeal instead of granting leave to the Applicant to withdraw it.