CHIU TAT CHEONG, DAVID AND OTHERS v. ATTORNEY GENERAL

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JUDGMENT

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[Applications for leave to appeal to the Privy Council]

Fuad, V.-P.:

1. On 14th May this year this court as presently constituted delivered judgments reversing a decision of Kaplan, J. reached in his reserved judgment dated 22nd April in favour of Mr. Deacon Chiu and his son Mr. David Chiu ("the applicants") who were challenging the validity of the appointment as a magistrate of Mr. Peter Line who was due to conduct committal proceedings involving father and son in respect of four charges of conspiracy in relation to false accounting. Separate proceedings had been instituted by each of the Chius but we heard the Attorney General's appeals against all Kaplan, J.'s orders in one hearing which lasted some 9 days.

2. Kaplan, J. ordered that certiorari be granted to bring into the High Court for the purpose of quashing it the ruling Mr. Line had given on 17th October when he refused to stay the proceedings in respect of each of the applicants who were on bail granted by Mr. Line at the material time. Kaplan, J. also granted them writs of habeas corpus ordering their unconditional release. At the same time, the judge declared that the appointment of Mr. Line as a magistrate which had appeared in a Gazette Notice in 1988 was invalid.

3. The applicants now seek leave to appeal to Her Majesty in Council. As the arguments before us developed it finally became clear that counsel for the applicants and counsel for the Attorney General were contending, that apart from the intended appeal relating to the habeas corpus proceedings, the intended appeals as they related to the other matters were civil in nature so that the Order in Council which regulates appeals from this court to Her Majesty in Council, originally dated 10th August 1909, was applicable.

4. This point is, of course, important because, as the cases show, it is clear that this court has no jurisdiction to entertain any application for leave to appeal where criminal matters are concerned. A summary of the applicable principles is to be found in Chung Chuck v. The King [1930] AC 244 where Lord Sankey, L.C., at p.257, was discussing an Order in Council the relevant terms of which were identical to the Order in Council we are considering. The matter has also been mentioned more recently in Oteri and Another v. The Queen [1976] 1 WLR 1272. Lord Diplock, giving the judgment of their Lordships in the Privy Council, emphasised at p.1275 that criminal matters fell outside rule 2(b) of an Order in Council drawn in the way the Order in Council before us is drawn.

5. It is necessary to observe that after we had given our decision (and I do not say for one moment that it was because of our decision) on 20th May new Letters Patent were passed entitled the Hong Kong Letters Patent 1991 (No.1). By virtue of paragraph 1(3) of those Letters Patent, the amendments they brought about to the Hong Kong Letters Patent 1917 to 1990 took effect from 22nd May 1991 which was the day after the new Letters Patent were published in the Hong Kong Gazette. All three judgments delivered by members of this court on 14th May need to be read to understand the issues the applicants are seeking to ventilate before their Lordships in the Privy Council. I do not intend to summarise what we said. The applications for leave were filed on 27th May.

6. The new Letters Patent renumbered the existing Article XIV as paragraph (1) and added a new paragraph, paragraph (2), to that Article which reads as follows:

And then the new Letters Patent, in paragraph 2(2), say this:

7. In my view, in considering the exercise of our discretion under rule 2(b) of the relevant Order in Council, it is essential for us to consider what effect the new Letters Patent had on the position. I am prepared to accept that the matters which arose before us in the appeals and which were sought to be raised in the Privy Council were questions of great general or public importance but it seems to me that it would be wrong to continue to so describe those matters in the light of paragraph 2(2) of the new Letters Patent.

8. In my judgment it is absolutely plain that the amendment to Article XIV is intended to have retrospective effect. The sub-paragraph in question cannot be read any other way. The only question that really arises in the application of that sub-paragraph is whether it can affect existing proceedings, that is to say proceedings which had already been instituted and were still current (in the sense that it was possible to apply for leave to appeal to a higher court) before the new Letters Patent were passed.

9. In my opinion, the proper interpretation of paragraph 2(2) is that the appointment which had been challenged by the applicants can no longer be called into question whether the point is raised for the first time after the new Letters Patent came into operation, or whether it had already been raised before. It seems to me that the sub-paragraph should not be restricted in its application to questions raised for the first time after the coming into force of the new Letters Patent.

10. I therefore conclude that the matter is now largely academic and that it would be wrong to exercise the discretion given to this court to grant leave by rule 2(b) Of the Order in Council either on the ground I have mentioned or on the basis that "otherwise" the matter ought to be submitted to Her Majesty in Council for decision. I would therefore refuse leave to both the applicants to take the matter any further.

Kempster, J.A.:

11. The appeals before this court were argued on the basis that, the habeas corpus matter apart, the proceedings falling for consideration were civil in nature. Nothing that I have heard today satisfied me that we should deal with the instant applications on any other basis; particularly as no party now suggests that we should. I therefore accept that we have jurisdiction to entertain these applications for leave to appeal to Her Majesty in Council.

12. The matters canvassed before us were and are, in my opinion, of great general and public importance within the meaning of rule 2(b) of the Order in Council regulating appeals from this court. However, on 20th May last the Hong Kong Letters Patent 1991 (No.1) were passed. The manifest intention was formally and finally to confirm the validity of appointments which had been made to the magistracy within this jurisdiction and to close a particular chapter of controversy in Hong Kong legal circles. In the circumstances I, too, would exercise our undoubted discretion to refuse leave.

Clough, J.A.:

13. I agree that these applications should be refused. The habeas corpus applications clearly arise from a criminal matter which can only be the subject of an application for special leave to appeal to the Privy Council. They fall outside the ambit of the Order in Council. As to the other applications, whilst the appeal before this court raised questions of great general and public importance I agree with the other members of this court that the recent amendments to Article XIV of the Letters Patent were intended to prevent any further challenge to the past appointments of magistrates by the Chief Justice under his delegated power. In my judgment the amendments are clearly intended to affect pending proceedings and succeed in doing so. The amendments do not cover all the issues raised by the applicants in the appeal but in all the circumstances I do not consider that this court should exercise its discretion to grant leave to the applicants to appeal to the Privy Council under rule 2(b) of the Order in Council.