In re Tse Sun Miu

H E A D N O T E

1. The criminal jurisdiction of the Court of Appeal includes jurisdiction: to quash convictions which are null and void because they were entered in proceedings which the convicting court had no jurisdiction to hear; and to set aside sentences passed in respect of such convictions.

2. Where the convicting and sentencing court is an inferior court under the High Court's supervisory jurisdiction, the High Court has jurisdiction to restore the "nullity" complainant's liberty by habeas corpus and his character by certiorari.

3. Any detainee who has a viable complaint that his detention is unlawful has a right to a writ of habeas corpus two get himself before the High Court and to require the person detaining him to give a lawful reason for his detention.

4. But that does not mean that discharge is a matter of course. If in any instance it is by no means clear that the detention is unlawful, so that the lawfulness or otherwise of the reason given for the detention constitutes a substantial issue; if such issue would most appropriately be dealt with in a criminal appeal; and if the detainee's bid for freedom would, all things considered and looked at realistically in the round, be best served by leaving him to pursue such appeal: then the High Court has the power to leave him to do so. And leaving him to do so may in some instances be the course which the court should follow, in the best interests of the liberty of the individual, even if the detainee's legal advisers assess those interests differently. That is particularly so where, as here, that assessment was conditioned at least in part by a perhaps understandable but nevertheless erroneous belief that the alternative was not available.

IN THE COURT OF APPEAL

1993, No. 90
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. These are appeals by Mr Tse Sun Mui from two decisions of Mr Justice Mortimer. By one of those decisions, Mr Tse was, in form, refused a writ of habeas corpus ad subjiciendum. And by the other, he was refused judicial review by way of an order of certiorari. Both decisions are contained in a single judgment delivered by the learned judge on May 14 this year.

2. Shortly stated, the background to this case stands thus. On September 17 last year, before His Honour Judge Lugar-Mawson in the District Court, Mr Tse was convicted of - and sentenced to three years' imprisonment for - being a member of the crew of a ship which had entered Hong Kong with unauthorized entrants on board, contrary to section 37C(1)(a) of the Immigration Ordinance, Cap 115.

3. Mr Tse contends that the conviction pursuant to which he was sentenced, and therefore the sentence pursuant to which he is being detained, are null and void, because the convicting and sentencing court had no jurisdiction to hear the proceedings in which he was convicted and sentenced.

4. Proceeding to particulars, the argument runs thus. The appellant was not a British subject; and the ship in question was not a British ship. Accordingly, those proceedings are covered by section 23C of the Crimes Ordinance, Cap 200, which reads:

" (1) Proceedings to which this section applies shall be instituted only with the consent in writing of the Governor who shall give such consent only if, in his opinion, their institution is expedient.

(2) This section applies to any proceedings for an indictable offence, other than piracy, which is alleged to have been committed -

(a) within the waters of Hong Kong;

(b) by a person who is not a British national; and

(c) on board, or by means of, a ship which is not a British ship.

(3) In this section 'British ship' includes a Hong Kong ship."

No consent to the institution of the proceedings had been given by the Governor. The Attorney General's consent under section 37L of the Immigration Ordinance, Cap 115, was not enough. Hence, the proceedings and its result were null and void. That is how it is put. And I should make this clear. Although it is not suggested that the Governor would have been in the least likely to have withheld any consent which may have been needed, so that the point may be characterized as technical, the matter, involving as it does the lawfulness of a detention, is not to be taken any less seriously as a result.

5. The convicting and sentencing court in this case, the District Court, is an inferior court in the sense that it is subject to the supervisory jurisdiction of the High Court. Has that superior court's inherent jurisdiction to restore liberty and character taken away by unlawful orders of courts under its supervisory jurisdiction been removed in circumstances like the present? Unless it has, Mr Tse was entitled to pursue his "nullity" point before that superior court, seeking, first, the restoration of his liberty by way of habeas corpus and, secondly, the restoration of his character by way of certiorari to quash his conviction and, with it, his sentence.

6. In seeking to persuade Mr Justice Mortimer to grant Mr Tse relief, and in attacking before us his refusal to do so, Mr Daniel Fung QC for Mr Tse took first the point which is put like this in his skeleton argument: "There is no right of appeal to the Court of Appeal where the proceedings were a nullity since there has never been a valid trial, conviction or sentence. The appeal mechanism established by Part IV of the Criminal Procedure Ordinance is inapplicable since the same is predicated on the existence of valid convictions (i.e. convictions by a court of competent jurisdiction)."

7. At this stage, the following developments should be mentioned.

8. On February 3, 1993, the appellant took out an application for leave to appeal against his conviction out of time.

9. Over two months later, on April 16, 1993, Mr Tse made his affirmation seeking a writ of habeas corpus. And on the same day, he took out his application for leave to apply for judicial review.

10. The "nullity" point forms the first ground contained in the "Perfected Grounds of Appeal" which he filed on June 1, 1993.

11. That ground arises in another criminal appeal, being Criminal Appeal No. 538 of 1992 brought by a Mr Leung Kwok-sing.

12. Initially, the plan was for Mr Tse and Mr Leung's criminal appeals to be heard together. But on June 7, 1993, the Acting Chief Justice acceded to Mr Tse's request that his criminal appeal be not listed for hearing until after the determination of this civil appeal of his, in which he argues, as I have indicated, that there is no jurisdiction to hear his criminal appeal.

13. Mr Leung's criminal appeal, I should mention, has been listed for hearing on August 10, 1993.

14. In my judgment, the criminal jurisdiction of this Court includes jurisdiction to quash convictions which are null and void because they were entered in proceedings which the convicting court had no jurisdiction to hear. It follows, of course, that it includes jurisdiction to set aside sentences passed in respect of such convictions. Section 83(1)(b) of the Criminal Procedure Ordinance, Cap 221, provides that, subject to the proviso, an appeal against conviction shall be allowed if this Court thinks that the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law. If a court of trial proceeds, it necessarily does so pursuant to a decision to proceed. Since no court is an automaton, that must be so whether or not it has actually paused to consider whether or not it can proceed. So, if it proceeds without jurisdiction, it has proceeded pursuant to a wrong decision on a question of law.

15. Mr Fung argues that, as he puts it, his position in regard to this Court's criminal jurisdiction is sustained by the decision of the House of Lords in R. v. Rose [1982] AC 822 and of this Court in R. v. Currency Brokers (HK) Ltd [1987] 2 HKLR 1136. I do not accept that argument. What the House of Lords was dealing with in R. v. Rose (supra) was the question of when a writ of venire de novo could be issued: holding that it could be issued when irregularity has resulted in no trial validly commencing or when no properly constituted jury ever returned a valid verdict, but not when irregularity occurred between the valid commencement of the trial and the discharge of the jury after reaching a verdict. What was said in that case was said in that context.

16. And what this Court said in R. v. Currency Brokers (HK) Ltd (supra) was said in this context. As one sees from p. 1140 C-H of the report, the Crown submitted that "the convictions, in the sense of final disposal, were bad for want of jurisdiction on the face of the record". The Court considered that the submission "would seem to have considerable force" although it made "no concluded finding to that effect". Nevertheless, the Court rejected "the related submission that applications or appeals in relation to the convictions cannot lie". The applicants were given a choice between pressing on with their applications for leave to appeal against conviction or taking advantage of an adjournment, which the Court was prepared to grant them, to "seek leave, out of time, to apply for the judicial review of the convictions". The applicants chose to press on with their applications for leave to appeal against conviction. And the Court then proceeded to deal with those applications on their merits.

17. What this Court did in R. v. Chan Ching-cheung [1977] HKLR 83 and why it did that appears from this statement at p. 88 in the judgment of the Court delivered by Huggins JA: "However, where a statute makes the Attorney General's consent a condition precedent to the existence of jurisdiction to determine a case, the absence of consent goes to the root of the proceedings: it is not enough to say the Appellant was found guilty: R. v. Bates [1911] 1 KB 964. Accordingly we have no alternative to declaring the conviction to be a nullity and setting aside the sentence of imprisonment."

18. A suggestion made by Mr Fung in support of his submission is that this Court's powers in relation to null and void convictions is less than that of its English counterpart since we, unlike them, have no power to order a venire de novo. To begin with, I do not see why the absence of a power of that nature would have the effect contended for by Mr Fung. But in any event, this Court has, by virtue of section 83E of the Criminal Procedure Ordinance, Cap 221, power to order a retrial if "the interests of justice so require". This general power of ours to order a retrial is to be contrasted with the strictly limited one of the Court of Appeal (Criminal Division) in England to which Lord Diplock adverted in R. v. Rose (supra) at p. 833 G-H, identifying it as one to order a retrial "only when the appeal against conviction is allowed by reason of fresh evidence received by the court on appeal".

19. In a case where a conviction is quashed as a nullity because it was entered in proceedings the institution of which needed, but had not received, certain consent, this Court could grant the Crown time to seek such consent. And, if such consent were obtained, the Court could entertain an application for an order for retrial, and grant it if the interests of justice so required. This Court has all the powers to do justice possessed by the Court of Appeal (Criminal Division) in England and its predecessors, the Court for Crown Cases Reserved and the Court of Criminal Appeal.

20. One of the implications of Mr Fung's submission - and it reinforces my view that the submission is wrong - is this. If in a High Court criminal trial it was held, after argument, that the Court had jurisdiction, it would be very strange if another High Court Judge could be asked, upon a habeas corpus application, to rule otherwise. Judicial review certainly would not be possible, since the High Court can hardly be under its own supervisory jurisdiction. Where then should the defendant go to complain of a conviction which he submits is null and void, if he cannot come to this Court in its criminal jurisdiction for the restoration of his liberty and character?

21. Mr Justice Mortimer was right to accept the Crown's submission, made to him and repeated before us, that there was jurisdiction to hear Mr Tse's criminal appeal. Even if they were to achieve nothing else, Mr Tse's legal advisers would have done him a service by getting a determination to that effect, clearing the way for his criminal appeal to proceed without their having to look over their shoulders to see if it really lies.

22. Nevertheless, Mr Tse was entitled to seek a writ of habeas corpus. We are here dealing with someone who was convicted in the District Court and sentenced to imprisonment as a result. He complains that the court had no jurisdiction and that his conviction and sentence are null and void. Just because he can come to this Court in its criminal jurisdiction to seek the restoration of his liberty and character by the quashing of his conviction and the consequential setting aside of his sentence passed pursuant to that conviction, it does not necessarily follow that he may not also go to the High Court for the restoration of his liberty by discharge in habeas corpus proceedings and of his character by the quashing of his conviction and sentence by certiorari in judicial review proceedings. That would not follow even though the range of remedies available in a criminal appeal before this Court to persons, including those who can make out a "nullity" complaint, is generally more convenient than those available in habeas corpus and judicial review proceedings combined. As Lord Widgery CJ reiterated in R. v. Home Secretary, Ex parte Mughal [1973] 1 WLR 1133 at p. 1136 B-C, "in a true habeas corpus case it is not really open to the court to refuse the writ merely because some other procedure for disposing of the issue might be more convenient". Unless the provision of an avenue of appeal (a more recent form of redress than habeas corpus or the prerogative writs now within the ambit of the orders available by way of judicial review) render those older forms of redress incapable of continuing to provide any useful service to "nullity" complainants, the provision of the newer form of redress cannot carry any clear implication that they have suspended the relevant operation of those ancient bulwarks of liberty, which I so describe without apology. As Lord Denning MR said in R. v. Governor of Pentonville Prison, Ex parte Azam [1974] AC 18 at p. 31 F-H, dealing with whether the right to appeal against a direction for removal takes away an alleged illegal entrant's right to seek a writ of habeas corpus: "If Parliament is to suspend habeas corpus, it must do so expressly or by clear implication".

23. Generally speaking, a criminal appeal to this Court has many advantages over habeas corpus and judicial review proceedings. It starts one stage higher up the judicial hierarchy, which is conducive to reaching finality sooner. In addition to nullity, it admits of other grounds of appeal against conviction, being ones which cannot be entertained in habeas corpus and judicial review proceedings. It admits also of an appeal against sentence purely as such. And there is of course such a thing as bail pending appeal.

24. But, for all that, habeas corpus and judicial review as an adjunct thereto can provide a speedier restoration of liberty and character. As Lord Donaldson MR said in R. v. Home Secretary, Ex parte Cheblak [1991] 1 WLR 890 at p. 894 A-C: "Habeas corpus is probably the oldest of the prerogative writs. Authorising its issue in appropriate cases is regarded by all judges as their first duty, because we have all been brought up to believe, and do believe, that the liberty of the citizen under the law is the most fundamental of all freedoms. Consistently with this, an application for a writ of habeas corpus has virtually absolute priority over all other court business".

25. Mr Adrian Huggins QC for the respondent does not need to suggest that Mr Tse was not entitled to bring habeas corpus and allied judicial review proceedings. Nor does he need to suggest that his avenue of appeal disentitled Mr Tse from having, as of right, what amounted to a writ of habeas corpus and a return thereto. That, as Mr Huggins says, he got. The reason for Mr Tse's detention was given. It was said that he was detained under a conviction and sentence which the respondent said were, for the reasons he urged, valid. That is why, at the beginning of this judgment, I spoke of Mr Justice Mortimer's refusal "in form" of the writ.

26. What Mr Tse was not entitled to as a matter of course, Mr Huggins argues, is a determination of the merits of the nullity issue which, if determined in Mr Tse's favour, would result in his discharge. On that issue, Mr Justice Mortimer had, Mr Huggins argues, the power to leave Mr Tse to pursue his criminal appeal. And as far as the proper approach to exercise of that power is concerned, Mr Huggins submits that a person should be left to pursue his appeal unless good reason otherwise appears. That last submission seems to derive some support from the decision of a divisional court of the Supreme Court of New Zealand in Re Kestle [1980] 2 NZLR 337. But, even if such a power exists, I would not be prepared to take so hard a line as appears possibly to have been taken in that case.

27. Anyone who is being detained and on whose behalf a viable complaint that such detention is unlawful has a right to a writ of habeas corpus to get himself before the High Court and to require the person detaining him to give a lawful reason for the detention. But that does not mean that discharge is a matter of course. If in any instance it is by no means clear that the detention is unlawful, so that the lawfulness or otherwise of the reason given for the detention constitutes a substantial issue; if such issue would most appropriately be dealt with in a criminal appeal; and if the detainee's bid for freedom would, all things considered and looked at realistically in the round, be best served by leaving him to pursue such appeal: then the High Court has the power to leave him to do so. And leaving him to do so may in some instances be the course which the court should follow, in the best interests of the liberty of the individual, even if the detainee's legal advisers assess those interests differently. That is particularly so where, as here, that assessment was conditioned at least in part by a perhaps understandable but nevertheless erroneous belief that the alternative was not available.

28. That being the test, what are the relevant circumstance here? They appear to be these. If Mr Tse were to succeed in his criminal appeal, even if only on the "nullity" ground, he could not be retried unless this Court so ordered. That is because section 83E of the Criminal Procedure Ordinance, Cap 221, calls for an acquittal once a conviction is quashed unless a retrial is ordered. But if he were to obtain his discharge on the "nullity" ground in habeas corpus proceedings, he could be - and it seems would be - re-arrested and retried without any order of any court. What would happen at a retrial cannot be predicted. But it would be rash to assume that a penalty heavier than three years' imprisonment could not conceivably be imposed. That would leave Mr Tse worse off even after giving him credit for time already spent in custody. Also, in a criminal appeal he could advance grounds other than the "nullity" one: and his "Perfected Grounds of Appeal" do contain other grounds, including one under the Bill of Rights. I have already mentioned that there is such a thing as bail pending appeal. And, looking at the matter in general terms, a strong probability of being right on any of a number of grounds might well secure bail, while only actually being right on the "nullity" ground would secure discharge.

29. Even in the face of all that, leaving Mr Tse to pursue his appeal would not be right if that involved undue delay. But it would appear that he could get his appeal on together with Mr Leung's on the 10th of next month, unless he could get it on even earlier.

30. Is there a substantial issue as to nullity? The issue seems to involve two questions. First, was the Governor's consent needed? If so, did its absence leave the proceedings in the District Court devoid of jurisdiction?

31. We have heard the arguments on these questions and on the nullity issue as a whole, with Mr Huggins arguing the matter briefly and "under protest", so to speak, since his primary contention is that the proper venue for those arguments is this Court in its criminal jurisdiction. The issue is, in my judgment, a substantial one which may well, but also may not, be resolved in Mr Tse's favour if we proceeded to a decision thereon.

32. It seems to me that the result at which Mr Justice Mortimer arrived is correct even if the reasoning by which he arrived at it is open to question. Once he held - as I do - that Mr Tse's criminal appeal did lie, he was right, in Mr Tse's own interests in all the circumstances, to leave him to pursue that appeal.

33. Having come to that view by reference to the interests of Mr Tse alone, I consider it possibly worthwhile to test the position by considering his interests together with those of other people in custody awaiting trial or the hearing of their appeals whether against conviction, sentence or both.

34. Certainly, the reason for any detention of which a coherent complaint in law is made can be insisted upon as a matter of right and at once. And a habeas corpus applicant making such a complaint can get priority over other people in custody awaiting their day in court: so that he may have himself and those detaining him before the High Court to see if they have any reason for his detention which they dare to give in a court of law.

35. But once a reason has been given, and its correctness or otherwise in law requires adjudication which will take a considerable amount of time, then it would not be easy to explain to others in custody awaiting their day in court - and to explain to them in terms which they can follow and on a basis which they would consider fair - why they should still be pushed back in the queue. You can say what you like. Iron bars are always real. And those behind them would know that best.

36. The bulwarks of liberty ancient and modern are, as I understand our constitution, there to promote freedom and justice for all. The worthiest of human endeavours are made within the constraints of resources. What we must do is our best. And we should do that in as even-handed a manner as we can.

37. With an expression of my indebtedness to counsel on both sides, who have taken us to cases and statutes going back hundreds of years and spanning three continents, and with an expression of my regret that time does not permit me to deal more fully in words with their able arguments, all of which I have of course fully considered in thought, I would dismiss these appeals.

Power, V.-P.:

38. I concur with what has fallen from my brother Bokhary. I am satisfied that the decision of the judge which will result in the applicant pursuing his criminal appeal, if he sees fit so to do, before the Court of Appeal was a proper one.

Ryan, J.:

39. I too agree with what has fallen from my Lord, Bokhary JA. There is nothing I can usefully add; and I, too, would dismiss these appeals.