CHONG HIN PONG and Another v. HIS HONOUR JUDGE GOULD

1994, MP No. 3585

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H E A D N O T E

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Role of a Judge when listing criminal trials

The Acting Chief District Court Judge had a policy on listing day to order the solicitor to disclose the costs sought for his client's trial.

Held The Judge was acting in an administrative capacity when listing criminal trials and such an order was unlawful, as it was outside his powers and irrelevant. As there was no right of appeal against such an order, judicial review was an appropriate remedy.

1994, MP No. 3585

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. In the High Court, we are now fortunate to have a high class Judiciary Administrator who regulates the smooth running of the High Court, and we have a Listing Judge, Mr. Justice Jerome Chan, who lists both civil and criminal cases. When he lists a criminal case, he does not do so in a judicial, but in an administrative capacity. Because he is a High Court judge, his persuasion and his requests carry greater authority than they would if he was a Listing Clerk, but the judge sits, not as the Trial Judge, nor even hearing a pre-trial review, but merely to list the case as an administrative officer.

2. The District Court being a creature of statute, is regulated by the District Court Ordinance. His Honour Judge Gould was, at the material time, the acting Chief Judge in the District Court and he, like many other persons, has been deeply concerned about the delays arising in criminal trials. One of the matters he has highlighted in his experience has been the defendant being given a date for trial, then coming to court and saying that he cannot afford the solicitor or counsel appearing for him, and seeking an adjournment. The judge, therefore, says this at p. 22, of his Reasons.

"The Trial Judge, dealing with the trial must accept the facts which are presented to him and make a ruling in a judicial fashion giving the benefit of the doubt where appropriate to the Defendant. However, as the judge charged with the quasi administrative role of insuring that the District Court is run in an efficient and cost-effective manner, I am entitled to take an overview of the subject. It is part of my responsibility of Case Management."

3. With the greatest respect to the judge, whilst he does have a duty and responsibility to list cases in an efficient and cost-effective manner, that is his sole role at that moment. What has happened here is that the judge has adopted what he calls a policy prepared by him to overcome the problems as he recognized them for the late adjournments.

4. He has set out his practice on Listing Day. There has been no arraignment of the defendant, there is no trial going on, it is purely an administrative function which is happening.

5. He asks the defendant, if he has no lawyer, what is his progress in (i) instructing a lawyer, (ii) finding out the costs and (iii) arranging payment. If he appears with representation, he asks the lawyer whether the defendant has been given an estimate of the costs of the trial. He asks for the costs to be written down and shown to the defendant, and the written down figure is retained on the court file.

6. The matter before me arises as a result of concern by the Law Society, representing solicitors and the Bar Council representing barristers as to the practice this judge has adopted by ordering persons to disclose the legal costs. This judicial review has arisen out of a particular case but is a method to challenge this practice. The solicitor then appearing when asked to disclose his legal costs said, "I claim privilege." At a special hearing, Mr. Grossman Q.C. argued a matter of law and many authorities were cited about "privilege". In my judgment this case has nothing whatsoever to do with "privilege".

7. What is being challenged is the right of this judge to order a solicitor, or a defendant to disclose matters which are unconnected with the criminal trial. A judge has only powers given to him by the Ordinance. He has, of course, his own inherent power to regulate his own court. He ensures people behave in a proper manner, and counsel or solicitors do not waste time, but he has no power to order persons to do matters unconnected with the proper conduct of the trial.

8. What has happened here, in my judgment, is although the judge's policy or practice, is perfectly praiseworthy and perfectly understandable, it is unlawful of him to order a solicitor to disclose the costs that he is charging his client. There are a number of arguments with which I have not been concerned, which demonstrate that there are many factors which make such disclosure an unpleasant task for the solicitor. Some solicitors might not want judges to know what they charge, some might worry that if the judge is in possession of material it might be misused, albeit not by him, but it is capable of being misused for it is kept on a court file.

9. All those matters, going to the solicitors' role, I can well understand but this case can be answered quite simply. When one asks what is the judge doing when he is listing a case, in my judgment, he is acting in a solely administrative role. He is not in court trying a case. He can make a request. He can say to the solicitor, "Please help me. I would like you to tell me what you are charging." and he can say to the defendant, "Unless you get a lawyer now and you ask for an adjournment later, it is going to be difficult for you to get one." He cannot of course bar him. It must be recognized by Judge Gould that although his meaning is most praiseworthy and although he wishes to bring about changes in listing, he is not permitted to do so. It is not within his power. No judge has such power. There are no Criminal Practice Directions in the District Court. The Chief Justice has got power to make Practice Directions, but I doubt whether such a Practice Direction could ever be made that orders solicitors to disclose the costs which they charge their clients. The judge can request; he can seek to persuade, he can use his authority, being a judge and not a Listing Clerk, but in my judgment, although the policy is in itself praiseworthy, the sanctions behind it are unlawful. In other words, if he says to a solicitor, "I order you to tell me the costs of the trial, otherwise I am not going to list the defendant's trial." It means that the defendant himself is being substantially prejudiced if he cannot be given a trial date.

10. The solicitor or the counsel, in my judgment, should have been very courteous and firm, and said to the judge, "I hear what you ask me, your honour, but it is none of your business and I refuse to tell you." The judge, if he then recognized his limited position would have said, "Thank you very much but I would like to try to persuade you." Otherwise what is the sanction? Does he say to the solicitor, "I hold you in contempt of court." or does he say to the defendant, "I am not going to list your case." Both of those would, in my judgment, be unlawful. It must be recognized that the judge has only very limited powers on listing, because there is no trial taking place although he may well have dealt with a bail application. This is nothing to do with the grant or refusal of bail. He has put in what he calls a judgment. It is the justification for him having a policy. Furthermore, there is no right of appeal. As this is not an order made in the conduct of a trial, or bail application, there is no right of appeal to the Court of Appeal. Nothing can be done and in my judgment, the applicant was perfectly entitled to come to this court and for the court to declare in appropriate words that there is no power in a District Court judge, or indeed no power in a High Court judge to order people to disclose their costs.

11. I have no right at a pre-trial review to say to a defendant, "Tell me how much you are paying your barrister and solicitor." nor to ask the barrister or solicitor what they are being paid. It is nothing to do with the judge. It is totally irrelevant. It is a private matter between a lawyer and his client. It is not necessary to examine authorities on privilege. It is just a private confidential matter which has no relevance to the trial. For example, a judge might consider if he sees a defendant who is being defended by an eminent Q.C. he has enough money to pay for lawyers and therefore, I shall fine him twenty times more than I otherwise would.

12. A barrister has to have his fee marked on his brief. The judge is not entitled to look at it. He may know about it in matrimonial proceedings, he can also in civil proceedings if he wishes to tax the costs immediately, say to the barrister, "May I look at your brief." If the barrister says, "No." That is an end to it.

13. I finish where I started. This judge's practice is most praiseworthy. He has made great efforts to try to reduce the delays in the District Court. He has stated that on many occasions, applications for adjournment are spurious, and he has sought to find a way out of the problem. I fully sympathize with him. Unfortunately, the solution he has sought is unlawful. It is outside his powers. If a solution is to be found, then it is for the Chief Justice to promulgate Practice Directions, or for the Law Society and the Bar Council to get together to try to assist, but on the bare question of whether this judge has any power to order a solicitor to disclose the costs of a trial, in my judgment, he has not, and therefore, on that narrow ground, I grant the relief sought in the declaration at para. 2 and also if it is necessary, I would order him to allow the trial of this applicant to proceed. He is not permitted to delay people being tried in the way he has done.