TSOI KEI LUNG AND ANOTHER v. SECRETARY FOR JUSTICE

HCAL 1054/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

ACTION NO. 1054 OF 2000

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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. I declined to give leave on the papers and directed that the matter should come before me for oral presentation. I also requested that the Respondent be notified and be able to attend the hearing today.

2. It appears that the Applicants, together with several other persons, have been charged with a large number of offences in terms of the Trade Descriptions Ordinance, Chapter 362. These charges include Common Law charges of conspiracy to defraud. Some 20 of the charges have been described in the notice of application for leave as 'additional charges' and it is those which form the subject matter of the application.

3. On 9 March of this year there was a hearing before the magistrate to argue matters of law. Counsel for the Applicants argued that the summonses in respect of the additional charges had not been issued in accordance with the provisions of the Magistrates Ordinance, Chapter 227. They were, therefore, of no force and effect and the magistrate had no jurisdiction in respect of the summonses.

4. The position could not be redeemed by the prosecution - so the argument went - as in terms of section 19 of the Trade Descriptions Ordinance, no prosecution for an offence brought under the statute could be brought after the expiration of one year from the date of discovery of the offence by the prosecutor.

5. The magistrate did not accept the arguments of the Applicants. He ruled that the summons had been properly issued in terms of the Magistrates Ordinance; that there was no question of a time bar applying and that accordingly the committal proceedings should take place.

6. There is no need for me to go into the substance of the arguments propounded before the magistrate. Mr McWalters, who appears for the Respondent, does not concede that, upon further consideration, the Applicants may have an arguable case that the magistrate erred in law but the foundations of his opposition are based on different reasons. He submits that this application for leave should be refused for 3 reasons and they are as follows:

(1) this application is made in respect of a decision made in the course of continuing committal proceedings;

(2) alternative remedies are available to the Applicants;

(3) judicial review will not finally dispose of the issues in dispute.

7. Before proceeding to consider the merits of the application, it should be mentioned that, after the ruling of the magistrate, several defendants chose a 'paper committal'. However, the Applicants elected to have a preliminary enquiry and, because of the number of witnesses to be called, 8 weeks were set aside for the hearing. The hearing is due to commence this coming Monday.

8. It should also be mentioned that the Applicants appealed the ruling of the magistrate. The appeal was heard in May by Gall J who dismissed the appeal on the basis that the Court had no jurisdiction to hear it.

9. Concerning the merits of this application for leave, I have been referred to a number of authorities by both counsel. It would appear to me that Stock J succinctly identified the difficulties facing the Applicants in this matter when, in giving his judgment in Ng Pak Min v. HKSAR HCAL 70/1999 he said:

"Juridical review is supposed to be an avenue of last resort and it will only be in the most exceptional circumstances that a court would stop criminal proceedings in limine."

10. This follows earlier judgments of the Hong Kong Courts. In particular I refer to the Court of Appeal decision in Commissioner for Labour and Another v. Jetex HVAC Equipments Ltd, [1995] 2 HKLR 24. In this matter a jurisdictional point was argued before a magistrate who ruled against the application. In considering the approach to be adopted in matters of this kind Litton JA (as he then was) said the following:

"The magistrate was dealing with a criminal prosecution and judicial review of decisions made in the course of a criminal trial ought to be closely scrutinised. Here the magistrate had made an order which, in his judgment, dealt with the so-called preliminary point raised by the defence. Right or wrong, it was simply one step in the criminal process, even though it went to what counsel called a jurisdictional point. Having made his ruling, the magistrate might well have proceeded with the hearing and reached a determination of the matter on the information."

The judge continued:

"If the magistrate, upon the determination of the whole case, had convicted Jetex, it was open to them to appeal under Part VII of the Magistrates Ordinance: and the point they wished to raise in the judicial review proceedings could then have been raised on appeal. And if the magistrate had dismissed the information and acquitted Jetex, they plainly had no further interest in the matter and could not have pursued an academic point by way of judicial review."

In the same authority, Penlington JA said at page 34:

"This matter has had an unfortunate history. It is now a considerable time since the information was laid. There is authority to which Mr Remedios has referred to us, R. v. Wimbledon Justices, ex parte Derwent [1953] 1 All WR 390, that the High Court may make an order of prohibition to stop a Magistrate from conducting proceedings in excess of jurisdiction. It is however in my view a course which is full of the danger which has emerged here: that there will, as a consequence, be very long delay and leave should be given to apply for judicial review, and such an order made, only in exceptional circumstances. Judicial review is a remedy to be granted where there is no alternative remedy. Here there was no evidence that the hearing of the information will have taken a great deal of time and if at the conclusion of that hearing the defendants had been convicted they had the normal right of appeal to the High Court ..."

11. Mr Yeung, who appears for the Applicants today, accepts that judicial review should be an avenue last resort. However, he says that this is an avenue last resort as the appeal has been unsuccessful. With respect, however, I think that misses the point. Gall J did not deal with the appeal on the merits, he dealt with it on the basis that it was - at this time - misconceived. To paraphrase the words of Litton JA supra, the ruling of the magistrate was simply one step in the criminal process, even though it went to a point of jurisdiction, indeed in the present case there had been no final decision as such. A number of alternative remedies still lie open for the Applicants.

12. In his written submissions, Mr McWalters outlined the alternative remedies that may be open to the Applicants by stating the following:

"This issue is something which is more appropriately argued before the trial judge should the defendants be committed for trial, and should they face an indictment containing these Trade Descriptions Ordinance offences, and should the prosecution choose to proceed on these counts if forced to an election between the conspiracy to defraud charge and the substantive counts. Of course, should all of this happen and should the defendants be convicted then they will have a right of appeal, in which they can argue the point they are now seeking to resolve by judicial review."

13. Mr McWalters accepts that this Court has the jurisdiction to grant leave. He says, however, that it is a discretion only to be exercised in the most exceptional circumstances and certainly should not be exercised here. This approach, he says, has been adopted in the United Kingdom as well as Hong Kong. In this regard, for example, he has referred me to the authority of R. v. Wells Street Magistrate, ex p. Seillon in which the Lord of Chief Justice said:

"In the face of that authority which has never been questioned as far as I know and which is supported by such authority as there is on this topic, I do not see how we can do other than refuse the application. I do that without too much regret, I must confess, because I think that we should get into an intolerable situation here if we had applications under the prorogative orders being made in respect of criminal proceedings going on up and down the country which happened to take a turn unpopular to one side or the other of parties to the proceedings in question.

It seems to me that common sense requires the kind of restriction of mandamus which CARDEN'S case (supra) discloses, and without complicating the situation further, I would decide this present application on the basis of that decision."

14. Mr Yeung, of course, has not based his application simply on the basis that the Applicants have no alternative remedy. He says that there are a number of matters which, taken together, should make this Court exercise its discretion in favour of the Applicants. As to the basic principle, he has referred me to R v. Wimhledon Justices ex parte Derwent [1953] 1 All E R 390 per Lord Goddard CJ:

Therefore, the court has no doubt on the true construction of this sub-section that the offence was committed once and for all when the house was demised, that is to say, when the lease was executed, which was on Apr. 27, 1950. But counsel for the respondents argues that we ought not to deal with these cases by way of prohibition. Earlier in my judgment I pointed out that the words of s. 11 of the Summary Jurisdiction Act, 1848, limit the jurisdiction of justices. They take away jurisdiction to deal with any case where the offence has been committed more than six months before the information was laid. If that is so, and justices have no jurisdiction, this court is entitled, and ought, to issue prohibition to prevent them from going on with a case. They most properly adjourned these cases in order that this point might be argued, so that, if prohibition were refused, they could continue the hearing of the cases, but now they will be prohibited from going on. It is certainly the most convenient course to take to prevent a lot of expense being incurred in hearing these seven summonses ... [my emphasis]

15. As to the importance of saving costs, I have also been referred to Streames v. Copping [1985] 2 WLR 993 at page 999:

The party against whom the justices decided that they did have jurisdiction at the outset of course always has the concurrent right to apply to the Divisional Court for leave to seek judicial review in the nature of prohibition. In some cases, if the party aggrieved did take that course, it might be desirable for the justices to adjourn their further hearing of the substantive matter until after the determination of the judicial review proceedings; in most cases, however, nothing will be lost if the justices do complete their hearing. It may be that on the facts they will decide the substantive issue in favour of the party contending that they had had no jurisdiction. If they do not, then all the issues can be determined by the Divisional Court on a case stated, at a substantial saving of time and money. [my emphasis]

16. Mr Yeung contends that if the preliminary enquiry is stayed and this issue of jurisdiction resolved, it could result in a large saving in time and money. The enquiry, which is presently set down for 8 weeks, could be substantially shortened. Mr McWalters, however, does not agree. Even if all the summonses under attack are ruled to have no validity, he says that there are other summonses covering largely the same ground and these will be the subject of the preliminary enquiry. He says that the prosecution intend to call 67 witnesses. If the additional summonses were 'out of the picture', it would only reduce the number of witnesses to 65: a reduction just 2 witnesses.

17. In addition, Mr McWalters has argued that a decision by the High Court that the summonses are invalid will not, in fact, finally dispose of that matter. In this regard, he has referred me to section 19 of the Trade Descriptions Ordinance which, as I have said earlier, provides that no prosecution for an offence shall be brought after the expiration of one year from the date of discovery of the offence by the prosecutor. He has said that, even if the magistrate is shown to be wrong in his ruling, because of the factual background to this matter, there will still be a factual issue to be decided as to whether or not one year has expired as provided in terms of the Ordinance.

18. Mr Yeung has agreed that 'in strict terms' (as he put it) Mr McWalters is correct when he says the magistrate will still have a factual issue to decide. He has said, however, that it can be dealt with in the span of a morning. That too, as I understand it, is contested by Mr McWalters who says that a number of witnesses may have to speak to the issue.

19. It is, of course, for the magistrate to try such issues of fact, it is not the function of this Court which is a Court of review.

20. In all the circumstances, I am not persuaded that I should exercise my discretion on the basis it will save time or costs. Nor am I persuaded that it would create an injustice. It is not yet known whether the Applicants will be committed for trial or not. If not, judicial review will have been a sterile exercise. If the Applicants do have to face trial, they may argue the same preliminary point of law before the trial judge before the substantive calling of evidence commences. Their avenues of appeal have already been spoken of.

Mr Yeung has also argued that this is a matter of 'great public importance'. I can certainly see the importance of the issue but I am not persuaded that importance should be a compelling issue in the exercise of my discretion.

Finally, Mr Yeung has submitted that until (and unless) the issue of the validity of the summonses is resolved, the Applicants will not know how best to proceed. Do they plead guilty or not? As he put it, how can they plead guilty when they are advised that the summonses have no validity? I can see that the Applicants face some difficulty but I do not see it as a difficulty which should make me exercise my discretion in their favour. Defendants in matters of this kind are often faced with decisions that go against them, often decisions of law. I believe it would set a dangerous precedent if in such instances they were able to adjourn proceedings and seek remedy by way of a prerogative order. It is, of course, always a matter of degree but I can see no compelling difficulty facing the Applicants here which makes their case stand out and should convince me to exercise my discretion in their favour.

Accordingly, the application for leave is dismissed. In respect of costs, I see no reason why costs should not follow the event. Costs are therefore awarded to the Respondent, to be taxed if not agreed.