CHAN TIT SHAU v. SECRETARY FOR JUSTICE

HCAL206/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.206 OF 2002

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J U D G M E N T

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1. This is an application for judicial review by the applicant, seeking an order of certiorari to quash the decision of a magistrate to commit the applicant for trial in the Court of First Instance.

Background

2. The applicant was charged with conspiracy to defraud on an information laid before a magistrate. The prosecution arises out of what is commonly described as the short-piling of the Hong Kong Housing Authority's development project at Tin Shui Wai area. The applicant elected for a preliminary inquiry as opposed to what is commonly known as a paper committal. The preliminary inquiry was heard on 16 and 17 September 2002. On 18 September 2002, the magistrate committed the applicant for trial before the Court of First Instance ("the Decision").

3. On 18 December 2002, the applicant filed his application for leave to apply for judicial review of the Decision, which contains three grounds.

4. On 11 February 2003, Hartmann J heard the leave application inter partes. Leave was granted to the applicant to apply for judicial review, limited however to Ground 1 only.

5. On 25 February 2003, the applicant filed his Notice of Motion for judicial review.

The ground for application

6. In giving the Decision, the magistrate said :

"I find that there is sufficient evidence before me to put the defendant upon his trial for an indictable offence."

Beyond this, nothing else was said by the magistrate with regard to the decision to commit for trial in the Court of First Instance.

7. Ground 1 of the application is in the following terms :

"The decision on 18/9/02 of the Learned Magistrate... to order the committal of the Applicant to the Court of First Instance for the trial of an offence of Conspiracy to Defraud was illegal in that the Learned Magistrate failed her duty to give reasons for the said decision, thus depriving the Applicant's right to a fair trial."

8. Grounds 2 and 3 in the Notice of Application for Leave relate to complaints that the magistrate failed to consider the evidence and that the Decision was Wednesbury unreasonable.

9. On Ground 1, it is incumbent upon the applicant to establish that there is a legal duty on a magistrate at a preliminary inquiry to give reasons for the decision whether to commit for trial. It will not be sufficient for the applicant to show that it is desirable or that it is the judicial practice for reasons to be given. The issue that arises for determination in this judicial review application is therefore a confined one, namely, whether there is a duty in law for a magistrate hearing a preliminary inquiry to give reasons for the decision whether to commit for trial.

10. Before dealing with the core question in this application, it will be useful to have an overview of the provisions in the Magistrates Ordinance relating to committal proceedings and of the role of an examining magistrate in a preliminary inquiry.

Part III of the Magistrates Ordinance

11. Part III of the Magistrates Ordinance deals with the procedure in the Magistrates Court for cases involving indictable offences. Other than those which are to be tried summarily before a magistrate or to be transferred to the District Court for trial, indictable offences have to be placed before a magistrate for the committal proceedings. Committal proceedings take the form of either a paper committal or what is known as a preliminary inquiry. The choice is that of the accused.

12. Before the accused makes the election, he will be served by the prosecution with the complaint or information, copies of statements of the witnesses whom the prosecution intends to call, copies of documentary exhibits and a list of exhibits : section 80B(1). On the return day appointed under section 80A, the accused will then make his election. If the accused does not elect for a preliminary inquiry, he will be committed without an inquiry : section 80C(3).

13. If he elects for a preliminary inquiry, a date will be set for hearing the inquiry. At the preliminary inquiry, only those witnesses nominated by the accused will be called to testify and be cross-examined. The statements of the other prosecution witnesses will be tendered and received into evidence : sections 80C(2) and 81A. At the close of the prosecution evidence, the accused may make a submission of no case to answer. If the magistrate finds a case to answer, he will proceed to read and explain the charge and inform the accused of his right to give evidence and to call witnesses : section 82(1). He must also ascertain whether the accused wishes to plead guilty. If the accused does not plead guilty, the magistrate will ask the accused whether he wishes to say anything in answer to the charge, warning him that he is not obliged to do so unless he desires, but whatever he says will be taken down in writing and may be given in evidence in his trial : section 82(1).

14. After hearing the prosecution evidence and the defence evidence, if any, the magistrate will make a decision on whether to commit. If the magistrate is of the opinion that there is insufficient evidence to put the accused upon his trial, the magistrate shall order the discharge of the accused from the complaint or information : section 85(1). If, on the other hand, the magistrate considers that the evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence raises a strong or probable presumption of the guilt of the accused, then the magistrate shall commit the accused for trial in the Court of First Instance : section 85(2).

15. For an accused who has elected for a preliminary inquiry, section 16 of the Criminal Procedure Ordinance does not apply. Under section 16, a judge of the Court of First Instance may discharge an accused on the basis that the committal papers do not disclose a prima facie case. Section 16 only applies to an accused who elects for paper committal.

16. In the case of an accused discharged after a preliminary inquiry, the discharge does not operate as a bar to any subsequent complaint or information in respect of the same facts : section 85(1). The prosecution is entitled to proceed either by way of voluntary bill or to proceed again by way of committal.

17. There is, on the other hand, no right of appeal against the decision to commit. The accused may however make a submission of no case to answer at the trial in the Court of First Instance. While an accused will ordinarily stand trial if he is committed, it is not necessarily so. The decision whether to indict an accused who is committed rests with the prosecution.

Preliminary inquiry and the role of the examining magistrate

18. In Grassy v. The Queen 168 CLR 1 at 15, a judgment of the High Court of Australia, Dawson J stated the purposes of a preliminary inquiry to be as follows :

"...It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form. And, notwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued. Indeed, the significance of the magistrate's decision is clearly reflected in the requirement now contained in s.41(6) of the Justices Act that the magistrate should discharge a defendant if he is of the opinion that, having regard to all the evidence, a jury would not be likely to convict."

19. The power of a magistrate in a preliminary hearing is confined to determining whether the accused should be discharged or committed for trial. Even then, the decision is not binding nor conclusive with regard to whether the accused is to stand trial. It is also plain that the magistrate does not determine the question of guilt. Neither does he make any findings of fact or law.

20. In Atkinson v. United States of America Government and Others [1969] 3 All ER 1317, an appeal from the magistrate's refusal to commit the accused in the course of extradition proceedings, Lord Upjoin said (at 1336B) :

"Of course, in a most literal sense, in making an order of committal the magistrates are making a judicial order or determination; it is a judicial proceeding and it is an order or determination in the sense that in the result the accused then stands his trial... But here there is no judicial determination of the rights of the parties in that sense; no 'rights' are decided. All that the committing magistrates have 'decided' or 'determined' is that there is prima facie case which should go before the adjudicating tribunal; they are acting judicially but they are not truly an adjudicating body at this stage, they are merely carrying out a step in the complex of proceedings which by our law precedes the trial of an indictable offence."

21. The Atkinson case and Lord Upjoin's judgment were referred to in R.v. Taj Malook & Anor [1990] 2 HKLR 209, a case dealing with whether the magistrate's decision to commit an accused after a preliminary inquiry can be appealed against. O'Connor J held that there was no right to appeal. He further pointed out that Lord Upjohn in the passage quoted above did not intend to suggest that a trial must or ought to take place if an accused is committed, but only that a trial may take place : at 212. O'Connor J therefore held that the order to commit was not an order that decided any substantial right in that it did not order that a trial take place.

22. In Cheng Chui Ping v. The Chief Executive of the HKSAR (unreported), HCAL1366/2001, a case concerning extradition proceedings, Hartmann J (at para.61) pointed out that in considering whether a prima facie case is made out, it is not for the magistrate to make provisional assessment of the evidence. He went on and referred to the judgment in R.v. Governor of Pontonville Prison, ex parte Osman [1990] 1 WLR 277 at 299, which stated that the duty of the magistrate was to "weigh up" the evidence, but not to "weigh" the evidence. Although Atkinson, Cheng Chui Ping and Governor of Pontonville Prison are all cases on extradition, the observations therein of the role and duty of a magistrate in deciding whether there is a prima facie case apply with equal force to an examining magistrate in a preliminary inquiry.

23. The role of the magistrate in a preliminary inquiry is therefore a limited one. His duty is simply to decide whether the evidence before him is sufficient to amount to a prima facie case against the accused. In so doing, the magistrate does not make any final determination of fact or law. He does not determine any rights between the parties in the sense that he neither decides the question of guilt nor decides whether the accused should stand trial, which is a decision for the prosecution. The limited role of the magistrate and the fact that there is no appeal against the magistrate's decision are important factors to be borne in mind when considering whether a duty arises under the law to give reasons for the decision on a preliminary inquiry.

Duty to give reasons

24. It is common ground that the provisions in the Magistrates Ordinance do not impose a statutory obligation to give reasons in preliminary inquiry. What the applicant argues is that such an obligation can and should be implied in order to meet the requirements of fairness. Reliance is placed on the decision of the Court of Final Appeal in Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279.

25. In my view, the question of whether a duty to give reasons for preliminary inquiry is to be implied has to be approached from two perspectives. The first is whether such a duty can be implied by implications of the Magistrates Ordinance. The second is whether the duty should be implied as a matter of common law. I shall deal with them in turn.

26. So far as the Magistrates Ordinance is concerned, it is to be noted that the statutory regime created by Part III of the Magistrates Ordinance for committal proceedings is a comprehensive and detailed one. Indeed, Rogers JA in Cheng Chong Gin v. Senior Superintendent of Lai Chi Kok Reception Center [1998] 1 HKC 522, 538F had observed that :

"The jurisdiction of magistrates when conducting committal proceedings is carefully spelt out in the Ordinance to the point where every step is laid down."

Despite that, the Magistrates Ordinance contains no provision requiring a magistrate in committal proceedings to give reasons. Further in the context of a paper committal, there is no room for requiring reasons be given since the accused is committed upon his election not to have a preliminary inquiry.

27. Even in the case of a preliminary inquiry, the role of the magistrate is a limited one. He merely decides whether the accused should be discharged or committed to stand trial, but does not determine whether the accused should stand trial. The preliminary inquiry and the magistrates' decision are merely procedural steps in the criminal process. Mr Bruce SC has argued that the magistrates' decision will affect the rights of the accused with regard to whether he is obliged to continue answering his bail and in turn his liberty of movement. I readily accept that the magistrate's decision at a preliminary inquiry may impact upon the kind of rights identified by Mr Bruce SC. Notwithstanding that, it remains that the role of the magistrate is a limited one and that his decision does not determine whether the accused would stand trial. It may be that a magistrate's decision to discharge may practically end the prosecution, but whether or not it does remains the decision on the part of the prosecution.

28. Additionally, it has to be appreciated that a preliminary inquiry does not operate as a full trial. Only witnesses nominated by the accused will testify. It is a focused hearing and the magistrate's decision is similarly a focused one.

29. Therefore, considering the structure of Part III of the Magistrates Ordinance, the nature of committal proceedings and preliminary inquiry in particular, and also the limited effect of the magistrate's decision in a preliminary inquiry, I am of the view that there is no basis for a duty to give reasons after a contested preliminary inquiry to be implied under the Magistrates Ordinance.

30. As for the common law, Lord Mustill said in R.v. Security of State for Home Department ex parte Doody [1994] 1 AC 531, 564E that the law does not presently recognize a general duty to give reasons. The Court of Appeal of New Zealand similarly held in Lewis v. Wilson & Horton Ltd [2000] 3 NZ LR 546 that there is no invariable rule that courts have to give reasons for their decisions. Further in Perkins v. County Court (VIC) and Others (2000) 115 A Crim R528 at 553 para.56, Buchanan JA with whom the other members of the Court of Appeal, Victoria agreed, considered that there is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision.

31. The authorities, however, recognize that in the interest of openness, transparency and fairness, it is desirable for courts to give reasons. In Oriental Daily Publisher Ltd v. Commissioner for Television and Entertainment Licensing Authority (CFA) at 290A, the Chief Justice further confirmed that there is a growing trend towards an insistence on greater openness of decision making and the courts have increasingly found a duty to give reasons in various contexts.

32. The authorities also recognize that there are various benefits attendant upon the duty to give reasons. In Oriental Daily Publisher Ltd at 290E-H, the Chief Justice stated :

"First, it would impose desirable intellectual discipline and concentrate attention on the relevant issues. It would thus assist in ensuring that any decision is made on proper grounds and contribute to the effective disposal by the tribunal of its work. Secondly, reasons would assist in demonstrating to the parties that the tribunal has carried out its task properly and would enable them to decide on the appropriate course of action in the case at hand, including whether to appeal or apply for judicial review. It would also provide guidance in the future to the community and persons concerned in this area. Publishers as well as the law enforcement and prosecuting authorities would have a better understanding of the standards as applied by the tribunal and would be in a better position to make their own decisions accordingly. Thirdly, the reasons given by the tribunal will promote and enhance consistency in its decision making and assist the law enforcement and prosecuting authorities. I would observe that broad consistency in approach is important. Fourthly, the giving of reasons would demonstrate to the community that the tribunal is functioning properly and this would engender public confidence."

33. In Singh v. Department of Labour [1999] NZAR 258 at 262-263, the New Zealand Court of Appeal set out six rationale for requiring courts to give reasons for their decisions. They are :

"(1) The discipline on the decision maker itself: it is commonplace that preliminary views can be changed when the process of thinking through the reasons and writing them down is undertaken.

(2) Assurance to those affected that their evidence and arguments have been assessed in accordance with the law, a matter relating to the next two points.

(3) Assistance to those affected in deciding whether to challenge the decision, for instance by appeal, review or other complaint mechanism - since the statement of reasons may satisfy them that they have no real prospect of a successful challenge.

(4) If a review is mounted, assistance to the parties, counsel and deciders engaged in the review.

(5) The establishment, where appropriate, of a body of precedent of at least of guidance, governing or affecting the exercise of the particular power.

(6) Assurance to the wider public of the legitimacy, openness and accessibility of the exercise of the power - an aspect of accountability."

34. Further in Perkins v. County Count at 552 para.55, Buchanan JA identified five purposes that the provision of reasons serves :

(1) enabling a party to effectively exercise his right of appeal and preventing the exercise of that right from being frustrated;

(2) enhancing candor in the decision-making process;

(3) creating accountability in the decision-making process;

(4) reconciling parties to the results of litigation; and

(5) promoting the drawing of conclusions that are rational and soundly based on legal principles.

35. Mr McWalters has helpfully summarized the benefits derived from the giving of reasons as identified by the authorities into four main categories :

(1)	Benefits to the parties :
	The benefits to the parties have two facets. They are :
	(a)	Helping the parties to understand and reconciling them to the results of the litigation : Zhuo Cui Hao v. Ting Fung Yee [1999] 3 HKC 634, 639; Flannery v. Halifax Estate Agencies [2000] 1 WLR 373, 377J; Singh v. Department of Labour at 262S; R.v. Ministry of Defence ex parte Murray [1998] C.O.D 134, 136.
	(b)	Assisting the parties to exercise their rights to appeal and also affording to the appellate court an understanding of the basis of the decision : Oriental Daily Publisher Ltd (CFA) at 290F; Lewis v. Wilson at 566, para.80; Singh v. Department of Labour at 262, Perkins at 553 and ex parte Murray at 136.
(2)	Benefits to the presiding judge :
	The benefits to the presiding judge rest in imposing intellectual discipline on them and concentrating their minds on the relevant issues, thereby ensuring that the decision is made on proper grounds : Oriental Daily Publisher Ltd (CFA) at 262F, Flannery at 378A, Lewis v. Wilson at 567, para.82, Singh at 262.
(3)	Benefits to the public :
	The giving of reasons promotes transparency in the administration of justice : Lewis v. Wilson at 565, para.76; and Singh at 263. Additionally, it also engenders public confidence in the tribunal : Oriental Daily Publisher Ltd (CFA) at 262H.
(4)	Benefits to those involved in the administration of justice :
	The benefits in this aspect are twofolds :
	(a)	The giving of reasons contributes to the building up of a body of precedents for guidance : Singh at 263; and
	(b)	It also promotes and enhances consistency in decision-making and assists law enforcement and prosecuting authorities in the discharge of their duties : Oriental Daily Publisher Ltd (CFA) at 262G.

36. In my view, the question of whether a duty to give reasons arises under the common law turns primarily on considerations of fairness and justice. As pointed out in R.v. Secretary of State for Home Department ex parte Doody at 561A, in the absence of a statutory requirement to give reasons, the party seeking to argue that reasons should be given must show that it would be unfair if reasons were not given. In R.v. Ministry of Defence ex parte Murray at 136, it is also said that if a decision given without reasons is insufficient to achieve justice, then reasons should be required, as also where the decision appears aberrant. In Immigration Tribunal v. Lau Tak Pui & Others [1992] 1 HKLR 374, 384, Clough JA formulated the test to be whether the statutory procedure ought to be supplemented because it is insufficient to achieve fairness and justice.

37. The question of whether a magistrate presiding over a preliminary inquiry should be required to give reasons for his decision therefore has to be approached by asking whether, having regard to the benefits and purposes of giving reasons as identified above, fairness and justice demand that additional safeguard should be built into the procedure laid down in Part III of the Magistrates Ordinance by requiring the giving of reasons.

38. In the context of benefits to the parties, there can be no doubt that it is desirable for the accused as well as the prosecution to understand the basis of the magistrate's decision. On the other hand, it is not to be forgotten that preliminary inquiry is a focused hearing and the evidential or legal issues canvassed are well identified and within narrow compass. The broad basis on which the outcome is based is unlikely to be missed even without the giving of reasons. This is particularly so where the parties are legally represented. There is additionally no right to appeal against the magistrate's decision. The benefit of enabling the parties to exercise their appeal right is not relevant.

39. It is true that there is a right to judicial review so that the giving of reasons may be said to serve the purpose of facilitating the exercise of the power to bring judicial review proceedings. In this connection, it is apt to note the judgment of Buchanan JA in Perkins v. County Court at 553, paras.57, 58 which points out that if reasons were required to be given in order to facilitate the exercise of the right of judicial review, then reasons would be required to be given for every administrative decision subject to judicial review, yet there is no general rule requiring reasons to be given for administration decisions. Buchanan JA further observed that the rules of natural justice are mainly concerned with the requirements that decisions affecting individual's rights should be reached after a fair hearing, and do not extend to the form in which the decision is pronounced. The requirement that reasons be furnished for decisions, on the other hand, relates more to the fairness of the decisions themselves rather than the fairness of the procedure leading to the decision making.

40. As to the benefits to the magistrate hearing a preliminary inquiry, given the narrow compass within which preliminary inquiry operates and the magistrate is not called upon to make findings of fact and law, the risks of the decision being made on improper ground is not such as to require additional safeguard through imposing a duty to give reasons.

41. On the benefits to the public, the importance of transparency and openness of the process has to be viewed against the restrictions on reporting of committal proceedings imposed by section 87A of the Magistrates Ordinance. A similar restriction is contained in section 16 of the Criminal Procedure Ordinance. Section 87A(7) sets out a detailed list of the matters that may be reported of committal proceedings. Clearly the intention is to enable the public to be informed only of the bare bones of committal proceedings. While the list includes the decision of the magistrate to commit the accused for trial and decision on the disposal of the case where any accused is not committed : section 87A(7)(e), it does not extend to the evidence and issues at the hearing. The restrictions on reporting under section 87A may be undermined if magistrates hearing preliminary inquiry have to give reasoned decision.

42. In R.v. Suttill ex parte Asiaweek Ltd & Others [1984] HKC 474 at 480I-481A, Kempster JA observed that section 87A entails two considerations of public policy, namely, the provision of a jury fee of bias or prejudice and the interest of the public in the manner and quality of the administration of justice. The list of matters permitted to be reported as set out in section 87A(7) no doubt reflects a carefully calculated effort to strike a proper balance between the two competing public interests. In deciding whether to introduce an additional safeguard to the legislative framework under Part III of the Magistrates Ordinance, a paramount concern must be to ensure that the balance is not lightly upset.

43. In committal proceedings, openness in the administration of justice and public confidence in the process are generally achieved by the presence of the public as well as the press at the inquiry : see R.v. Suttill ex parte Asiaweek Ltd at 481C-F. Having regard to the need to maintain a fine balance between the two public policy considerations involved in committal proceedings, I do not consider that the public interest in transparency and openness of the criminal process further requires that examining magistrates at preliminary inquiry should invariably give reasons for their decisions.

44. Finally in terms of benefits to participants in the administration of justice, it is in my view a minor, if not irrelevant, consideration, having regard to the nature and limited purpose of a preliminary inquiry.

45. Thus analysed, it can be seen that the benefits and purposes to be gained from a duty to furnish reasons for decisions made at preliminary inquiry are minimal. It will appear that the main benefit lies in enabling the parties, especially the accused, to have an understanding of the results of the preliminary inquiry. But as Mr McWalters points out, the basis of the decision does not have to be gauged from a reasoned decision, but can be gauged from the transcript of the inquiry. In the present case, as Hartmann J observed in his oral reasons for the leave application, it is apparent from the transcript that the magistrate clearly had her eyes on the ball and was fully aware of the issues she had to resolve. In reality, similar to an examining magistrate in extradition proceedings and a judge presiding over a vior dire, there is very little for a magistrate hearing a preliminary inquiry to say or explain.

46. In my view, the applicant has failed to make out a case that it is insufficient to achieve fairness and justice without the examining magistrate giving reasons for the decision made after a preliminary inquiry. This being the case, there is no basis for the common law to supplement the statutory framework and procedure by implying a general duty to give reasons. The Decision is not illegal. The applicant's only ground for judicial review therefore fails.

Relief

47. Having decided against the applicant on the only ground of his application, it would not be necessary for me to deal with the form of relief to be granted. Suffice it to say that I am in agreement with Mr McWalters that even if the application were successful, the proper course is to remit the matter back to the magistrate for reasons to be given on the Decision. It would not be necessary or appropriate to quash the Decision to commit, particularly considering that leave to judicial review on Grounds 2 and 3 had been refused.

Conclusion

48. For the reasons set out above, the applicant's Notice of Motion is dismissed with an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.