AARON PATRICK NATTRASS v. THE ATTORNEY GENERAL

1996, No. M.P.3601

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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INTRODUCTION

1. The Applicant, Aaron Patrick Nattrass, faces a total of 35 charges. They relate to offences of dishonesty alleged to have been committed by him in the running of an immigration consultancy in Hong Kong. He is being tried in the District Court. Until recently, the trial judge was Judge Caird. The trial proper has not got under way. That was because Mr. Nattrass had applied for a stay of the proceedings. However, on 3rd September, Judge Caird discharged himself from continuing to preside over the application for a stay, and Mr. Nattrass now applies for leave to apply for judicial review of that and other decisions.

2. An unusual feature of this already unusual case was that this was not the first time that Judge Caird had discharged himself from continuing to preside over the application for a stay. He had done so on 30th June 1995. It is unnecessary for me to rehearse the reasons for which he did so on that occasion. They are set out in my judgment in Nattrass v. The Attorney-General [1996] 1 HKC 480. However, Mr. Nattrass applied for judicial review of that decision, and in due course I made orders quashing Judge Caird's decision to discharge himself and requiring Judge Caird to continue hearing the application for a stay.

JUDGE CAIRD'S DECISION TO DISCHARGE HIMSELF

3. Judge Caird discharged himself on 3rd September on the grounds of ill-health. The basis on which it is said that Judge Caird was wrong to discharge himself for a second time is set out in the Notice of Application for leave to apply for judicial review. Broadly speaking, two criticisms of Judge Caird are made :

(i) His decision is said to be an irrational one, in that if his medical condition was such that he could not continue hearing the case for the time being, he should have adjourned the case until the final medical prognosis was known.

(ii) His decision is said to have been procedurally unfair, because before discharging himself he should have given the parties an opportunity to address him as to whether there was any alternative to discharging himself.

Those steps are said to have been necessary because of the serious consequences to Mr. Nattrass of the hearing having to start all over again before a different judge, and because by discharging himself Judge Caird was arguably not complying with the order I had made requiring him to continue to hear the application for a stay.

4. Should, then, Mr. Nattrass be granted leave to apply for judicial review of Judge Caird's decision to discharge himself? Let us assume that following any substantive hearing it is found that Judge Caird's decision to discharge himself was procedurally unfair or irrational. It is extremely unlikely that any practical relief could be granted to Mr. Nattrass. That is because it is almost certain that Judge Caird will not be a serving District Court judge in Hong Kong by the time that an order of mandamus requiring him to continue to hear the application for a stay is likely to take effect. I say that for the following reasons :

(i) Judge Caird has applied for permission to retire early on medical grounds. If that application is successful, he will not be able to continue the hearing of the application for a stay.

(ii) The Governor has appointed a tribunal under Art. XVIA of the Letters Patent to investigate whether Judge Caird should be removed from office for misbehaviour. If Judge Caird's application for permission to retire early on medical grounds is unsuccessful, the tribunal will have to investigate whether he should be removed from office for misbehaviour. If Judge Caird is ultimately removed from office for misbehaviour, he will not, of course, be able to continue the hearing of the application for a stay.

(iii) It follows that the only circumstances in which Judge Caird could continue hearing the application for a stay was if his application for permission to retire early on medical grounds was refused, and if he was not removed from office for misbehaviour. It is only then that the substantive hearing of any application for judicial review could take place. Any earlier hearing of the application for judicial review would be premature. There would be no point in deciding whether Judge Caird should continue to hear the application for a stay if intervening events had made it impossible for him to do so. At least some time would then elapse between the date when Judge Caird could resume his duties and the substantive hearing of the application. If the application for judicial review succeeded, and Judge Caird was ordered to continue hearing the application for a stay, more time would then elapse until the resumed hearing could continue. By then it is virtually inevitable that Judge Caird would have reached the age of 60, which is the compulsory retiring age for judges who were appointed to the District Court Bench when Judge Caird was. The Hong Kong Judiciary Who's Who gives Judge Caird's date of birth as 21st July 1937. I cannot assume that Judge Caird would be granted an extension of his tenure as a judge in order to continue to preside over Mr. Nattrass's trial.

It is therefore so unlikely that any practical relief could be granted to Mr. Nattrass that I decline to grant Mr. Nattrass leave to apply for judicial review of Judge Caird's decision to discharge himself.

JUDGE CAIRD'S REFUSAL TO HEAR A FURTHER APPLICATION FOR A STAY

5. Judge Caird discharged himself without considering whether the case against Mr. Nattrass should be proceeded with. It is claimed that Judge Caird said that that was a matter for the Attorney-General and not for the Court. He therefore declined to hear argument on the topic. His refusal to consider whether the case against Mr. Nattrass should be proceeded with is also challenged. I refuse to give Mr. Nattrass leave to apply for judicial review of that refusal. Again, it is extremely unlikely that any practical relief could be granted to Mr. Nattrass. While Judge Caird's future in the Judiciary is being considered on medical grounds, and thereafter if necessary by the tribunal charged with inquiring into his conduct, it is not possible for Judge Caird to sit in a judicial capacity. If he is ever able to sit again as a District Judge, there is, for the reasons I have given, almost certainly not going to be sufficient time before his retirement takes effect for him to hear argument as to whether the case against Mr. Nattrass should be proceeded with.

THE FORUM FOR DETERMINING THE APPLICATION FOR A STAY

6. It is argued that the High Court should now decide whether, in the light of everything which has occurred, the proceedings against Mr. Nattrass should be stayed. However, it is not as if that question cannot be adjudicated upon otherwise than by the High Court. It can and no doubt will be considered by Judge Kilgour who has now been assigned to try Mr. Nattrass. It is said that Judge Caird's allegations about two other judges in the District Court (although they have since been withdrawn) have caused Mr. Nattrass to have a measure of distrust about the independence of judges in the District Court. That is one of the reasons why he asks the High Court to exercise its supervisory jurisdiction now, and to decide for itself whether the proceedings against Mr. Nattrass should be stayed. However, there is no question mark, of course, over the integrity or probity of Judge Kilgour. It is open to Mr. Nattrass to argue before Judge Kilgour before the substantive application for a stay (i.e. the application based on the grounds relied upon before Judge Caird) gets under way, that the proceedings should in any event be stayed because of the injustice to Mr. Nattrass caused by Judge Caird's recent decision to discharge himself and in the light of Mr. Nattrass's current medical condition. I have no doubt that the appropriate time for the invocation of the supervisory jurisdiction of the High Court is once Judge Kilgour has ruled on that application, and not now. Otherwise, the High Court would be usurping the function of the District Court, and purporting to exercise an original jurisdiction instead of its supervisory one.

7. I have been considering whether the right course I should take on this application is simply to adjourn the application until such time as it is known whether Judge Caird can sit as a judge again. I have decided against that course. It would have the effect of delaying the hearing by Judge Kilgour of Mr. Nattrass's application for a stay of the proceedings. It is now far better for that hearing to get under way before Judge Kilgour, rather than to abort that hearing as well, so as to preserve the remote possibility of Judge Caird being able to resume control over the case before his retirement.

THE DECISIONS OF JUDGE BEESON

8. On 5th September, two days after Judge Caird discharged himself, Mr. Nattrass's case came before Judge Beeson. The case was listed to enable her to set a new provisional trial date. She was asked to discharge herself because she was at that stage being alleged by Judge Caird to have attempted to influence the view which Judge Caird should take of Mr. Nattrass and of the allegations which Mr. Nattrass was making about the New Zealand Immigration Service. Judge Beeson refused to discharge herself, and she proceeded to fix a new provisional trial date. Mr. Nattrass now seeks leave to apply for judicial review of those decisions.

9. I do not grant Mr. Nattrass leave to apply for judicial review of those decisions. Even if Judge Beeson should have discharged herself from making administrative directions relating to the new provisional trial date, there is no practical relief which can be granted to Mr. Nattrass. A new provisional trial date would have to be set by another judge, and there is no reason why that date should be any different from that which Judge Beeson set.

CONCLUSION

10. For these reasons, this application for leave to apply for judicial review must be refused.