THE SECRETARY FOR JUSTICE v. LEE WAI MAN AND OTHERS

1999 HCAL No. 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The background

1. On 9th March 1997, Hong Kong played Thailand in one of the preliminary rounds of the World Cup. Hong Kong lost. However, its defeat is said not to have been entirely unexpected. That is because some members of the team are accused of having thrown the match. Their trial is currently taking place in the Eastern Magistracy.

2. The principal prosecution witness was due to be another member of the team. The prosecution was intending to rely heavily on his evidence. He had admitted his own part in the conspiracy which is alleged to be at the heart of the case, and he is currently serving a sentence of imprisonment. However, he is not now going to give evidence. That is because the magistrate has ruled that his evidence should be excluded. The prosecution now applies for leave to apply for judicial review of that decision.

The hearing in court

3. In the normal course of events, such an application would have been determined without a hearing. However, a hearing was requested for two reasons. First, counsel for the Defendants in the trial requested that they be heard at the stage when the court was considering whether to grant leave. Secondly, interim relief is sought by the prosecution. The prosecution asks, pursuant to Ord. 53 r. 3(10)(a), that the grant of leave should operate as a stay of the criminal trial until the application for judicial review has been heard and determined. In layman's language, what the prosecution is asking for is that the trial of the Defendants be halted until the court has ruled on whether the evidence of the prosecution witness should have been excluded.

The test to be applied

4. In the Hong Kong Civil Court Practice, Vol. 1(A), para. 3623.1, it is said:

"The burden on the applicant in seeking leave to apply for judicial review may be even heavier when the impugned decision arises in the criminal process. In Re Wong Tung Kin [1989] 1 HKLR 93, Sears J. held that the court should interfere in the criminal process only when the impugned decision is 'outrageous'."

Having read the judgment of Sears J., I doubt whether Sears J. was imposing a heavier burden on an applicant seeking leave to apply for judicial review of a decision made in criminal proceedings. For my part, I do not think that the burden is any different when the court is exercising its supervisory jurisdiction over criminal trials in lower courts. The test which I propose to apply is the one laid down by Godfrey J. (as he then was) in the Court of Appeal in R v. The Director of Immigration ex p. Ho Ming Sai [1993] 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"

An arguable error of law

5. In my judgment, there is a strongly arguable case for saying that the magistrate erred in law when he decided to exclude the witness' evidence. Ultimately, he excluded it because he believed that the witness' evidence could not safely be relied upon. It is strongly arguable, however, that that is not a sufficient ground for the evidence to have been excluded - at any rate in a trial without a jury. The course which it is arguable the magistrate ought to have taken was to hear the witness' evidence as normal in the course of the trial, and if he then thought that he could not safely rely upon it, to ignore it. In other words, it is, in my opinion, strongly arguable that the supposed unreliability of the witness' evidence went to the weight which should be attached to it rather than its admissibility, and that the magistrate simply had no discretion to exclude it on that ground. It is, I think, also arguable that even if the magistrate did have the discretion to exclude the evidence on the ground of its unreliability, the factors on which the magistrate relied for concluding that the witness' evidence was so unreliable that the magistrate should take the wholly exceptional course of excluding it are themselves impeachable.

Alternative remedy

6. However, to interrupt a criminal trial to enable a party disappointed by a ruling on the admissibility of evidence to challenge that ruling in the course of the case is extremely rare. That is because it is thought to be highly undesirable to interrupt the ebb and flow of the trial. If there exists an alternative route by which the injustice done to the party adversely affected by the ruling can be remedied, that route should be taken. It is common ground that there is an alternative route available to the prosecution to challenge the magistrate's ruling which does not involve interrupting the trial. That route is provided by section 105 of the Magistrates Ordinance (Cap. 227), which enables the prosecution to challenge the ultimate acquittal of any of the Defendants by way of case stated. On such an appeal, the court has the power under section 119(1)(d) to set aside the acquittals and to order the case to be retried before a different magistrate.

7. Mr. Anthony Schapel for the prosecution argued that that remedy is far from ideal. The magistrate's error, he said, was so fundamental that it needs to be corrected as early as possible. It will remain uncorrected if the Defendants are convicted. Moreover, the appeal by way of case stated can only be launched once the trial has concluded, and if the magistrate's ruling is overturned, time and expense will have been wasted in proceeding with the trial. In addition, the difficulties of agreeing the form of the case to be stated for the opinion of the High Court renders an appeal by the case stated procedure inadequate.

8. I see the force of some of those arguments, but I am not persuaded by them. The acquittal of at least one of the Defendants is likely in view of the prosecution's concession that the only evidence against him would have been that of the witness whose evidence has been excluded. The argument about time and expense being wasted applies whenever a conviction is set aside because of something which went wrong at the trial and a retrial is ordered. And I am not persuaded that the need for the case stated to be agreed presents difficulties of the kind envisaged by Mr. Schapel. The case stated can identify, in neutral language, the submissions of the prosecution and the defence, and the reasons given by the magistrate for his ruling. It will then be open to the court to decide whether, as a matter of law, the grounds on which it was said that the evidence should be excluded were capable of triggering any discretion which the court had, and if so, whether the grounds relied on by the magistrate were sufficient in law to justify the exercise of the discretion in the way which the magistrate purported to exercise it.

Conclusion

9. For these reasons, therefore, this application for leave to apply for judicial review must be refused, not because of a lack of intrinsic merit in the grounds for attacking the decision complained of, but because an alternative route by which the decision complained of can be challenged exists, and because that route, though not perfect, avoids interrupting the trial for the time being.