KEUNG SIU WAH v. ATTORNEY GENGRAL

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JUDGMENT

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Fuad, V.-P.:

1. On 22nd February this year, we dismissed an appeal by Mr. Keung Siu Wah from a decision of Mayo, J. whereby he set aside an ex parte order granting Mr. Keung leave to apply for judicial review of the decision made by the Attorney General to prosecute him for conspiracy to defraud. Our decision was unanimous, and we handed down the reasons for our decision on 2nd Match.

2. Mr. Bernacchi appeared for Mr. Keung on the appeal before us and now applies on his behalf for leave to appeal to Her Majesty in Council under rule 2(b) of the Order in Council which regulates appeals from this Court to Her Majesty in Council. That sub-rule gives this Court a discretion to grant leave to appeal from any judgment, final or interlocutory, if the Court is of the opinion that:

3. I will not attempt to summarize what we said in the judgments handed down on 2nd March; they are there for anyone to read.

4. The point which the intending appellant wishes to take before Her Majesty in Council is stated in the affirmation filed in support of this application in this way:

5. I must confess to a measure of surprise that when we called upon Mr. Marshall (who is now appearing for the Attorney General) to respond to Mr. Bernacchi's submissions, he indicated that the Crown was not opposing the application for leave to appeal on the grounds that while it would seek to uphold the decision of this Court against which it is sought to obtain leave to appeal, the law regarding the extent to which the Courts can interfere with the discretion of the Attorney General in the prosecution process is, to use Mr. Marshall's language, "in a state of disarray" so that it would be in the interests of Hong Kong for the law to be settled at the highest level.

6. Of course, we are bound to give great weight to a submission made on behalf of the Attorney General in those terms and it will be unusual for this Court to decline to grant leave where the Attorney General has conceded that leave should be given. Nevertheless, the rule is quite clear and the discretion is ours; we cannot escape the duty imposed upon us by the Order in Council.

7. As I understand our decision, it was limited to holding that the decision of the Attorney General whether or not to prosecute is not subject to judicial review, however it might otherwise be possible to investigate the discretion exercised by the Attorney General in the decision making process.

8. I entertain no doubt that despite what has been said on behalf of the Attorney General it would be quite wrong for us to allow this appeal to go before Her majesty in Council. We have followed dicta from speeches given in the highest Court in the United Kingdom (by whose decisions we are effectively bound) and it seems to me that it should be left to their Lordships of the Judicial Committee, if the matter is pursued further, to decide whether or not the matters raised should be reviewed further.

9. I would therefore refuse the application.

Hunter, J. A.:

10. I agree and only add some words of my own having regard to the attitude of the Crown. With respect, the Attorney seems to have overlooked the simple premise that this case is concerned with one question and one question only: whether a decision by the Attorney General to prosecute or not to prosecute is judicially reviewable.

11. In our judgments, as my Lord has pointed out, we followed the highest authority in England and very persuasive high authority from Australia. The law on this subject matter is, in my opinion, not in doubt, not in disarray nor, I hope, have we put it in disarray in Hong Kong. If our decision is wrong, then I entirely agree again with my Lord, that it is appropriate in a case like this for the Privy Council itself to give leave and not for this Court to do so.

Penlington, J. A.

12. I also agree that this application for leave should be refused. I do not intend to add anything of great substance to what has just been said except to emphasise that a trial Court undoubtedly has power to prevent an abuse of its process. These are wide powers and if appropriately used by a trial judge he would undoubtedly be supported in this Court. So far as the process of judicial review being used in connection with the Attorney General's decision to prosecute, however, I am quite satisfied that that is an inappropriate means of exercising the judicial discretion.