MO YUK PING v. SECRETARY FOR JUSTICE

CACV 270/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 270 OF 2005

(ON APPEAL FROM HCAL 111 OF 2005)

______________

______________

_________________________________

REASONS FOR JUDGMENT

_________________________________

Hon Tang JA (giving the reasons for judgment of the Court):

1.  The Applicant is on trial in the District Court together with several other Defendants.  She faces three charges, one of conspiracy to defraud, one of conspiracy to pervert the course of public justice and one of “doing an act tending and intended to pervert the course of justice”.  On 2 August 2005 and before the commencement of the trial before Judge Wright, she applied for a permanent stay of proceedings.  Judge Wright refused a stay.

2.  On 24 August 2005, the Applicant applied ex parte on notice for leave to apply for Judicial Review against the decision of Judge Wright.  Hartmann J refused leave on the same day.  The trial began on 25 August 2005, however, just before the lunch break, the Applicant became sick and the case was adjourned.  The trial would have re-commenced on 1 September 2005 but for the fact that the Applicant decided to change her lawyers and Judge Wright granted an adjournment to Wednesday, 7 September 2005 in order to enable her new lawyers to prepare her defence.  Hartmann J’s extemporary judgment was typed and provided to the applicant on 31 August 2005.  On 2 September 2005, the Appellant filed her Notice of Appeal and sought an early hearing.  We heard and dismissed the appeal in the afternoon of the same day.  The reason given for the urgency was that the trial would resume on Wednesday, 7 September 2005.

Judge Wright’s Ruling

3.  The application arose in this way.  From the disclosure of unused materials to the Applicant, she became aware that she had been the subject of telephone intercepts, that the tapes of those intercepts had been destroyed, and all that remains is a synopsis.  Judge Wright held that although the disclosure:

“may have been belated, I am satisfied that that was not due to any attempt at concealment by the prosecution.” (para. 39)

She applied for a permanent stay relying on the 2 well known grounds which have been considered and explained in HKSAR v Lee Ming Tee and another (2001) 4 HKCFAR 133 (Lee Ming Tee No. 1), namely, notwithstanding the range of remedial measures available at the trial, a fair trial was impossible (first basis).  Secondly, this was one of those rare cases where the circumstances of the prosecution involved an abuse of power which so offended justice and propriety that, to protect the integrity of the justice system, the prosecution should be stopped (second basis).

4.  Judge Wright has ruled that a fair trial was not impossible and that this was not one of those rare cases which required the prosecution to be stopped.

5.  The hearing before Judge Wright took several days.  There were 2 days of evidence, some of which was heard in camera, followed by 5 days of submissions.  Judge Wright found that intercepted telephone calls were made on one or more of the Applicant’s telephones, and that those intercepts were authorized by the Chief Executive under section 33, Telecommunications Ordinance, Cap. 106.  He also found that the ICAC followed, as they were obliged to, an established Government policy laid down by the Security Bureau, which applied to all law enforcement agencies.  It is part of this policy that the intercepts are not used for the purposes of gathering evidence for use in criminal proceedings but solely for the purposes of gathering intelligence in regard to criminal activities.  Furthermore, the material gathered (principally, tapes of the intercepts) are subsequently destroyed.  Judge Wright said in para. 20 of the Ruling:

“This destruction is designed in order to protect the privacy of those whose privacy has been invaded by the interception”.

6.  Essentially the applicant relies on the destruction of the tapes in support of her claim that a fair trial was impossible.  Judge Wright concluded that a fair trial was not impossible.  It is said that he was arguably wrong because he said that it was for the applicant to establish:

“Firstly, she has been prejudiced or potentially prejudiced and, secondly, that that prejudice or potential prejudice will result in it being impossible for her to have a fair trial”  (para. 46)

7.  Mr Dykes SC has referred us to R v Carosella [1997] 1 SCR 80 where it is said a majority of the Canadian Supreme Court (5 to 4) has held otherwise.  But Mr Dykes accepted that the dictum of Lord Lane CJ in Attorney General’s Reference (No. 1of 1990) [1992] QB630 at 644, represents the position in England, namely that:

“… no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held:  in other words, that the continuance of the prosecution amounts to a misuse of the process of the court”

8.  But that is also the position in Hong Kong.  The same dictum was cited with apparent approval in Tan v Cameron, by the Privy Council on appeal from Hong Kong, [1992] 2 AC 205 at 224B, and also by the Court of Final Appeal in Lee Ming Tee (No. 1) at 149E.  Nor is there any reason in principle why this dictum is applicable only to delay.  In R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr. App. R 427, which concerned the power to stay proceedings for abuse of process on the basis of destruction of video tape evidence, reliance was placed on the same dictum by Brooke LJ in the Judgment of the Court at 435, L.28.

9.  Hartmann J has noted the powerful dissenting judgments in Carosella at para. 54 of his judgment, which lends further support for Judge Wright’s view.  We do not believe that Judge Wright was even arguably wrong.

10.  Judge Wright has held that the Applicant has failed to show any prejudice.  That is a decision based on the evidence before him.  He concluded in para. 54 with those words:

“In the circumstances, on the basis of demonstrating the impossibility of a fair trial, the Accused fail.  Of course, if cross-examination of one or more or any of the witnesses were to bear fruit during the course of the trial in the sense that an apprehension of the existence of materials in the monitored telephone conversations which may or might have furthered cross-examination or otherwise assisted an Accused is raised, that is an aspect which may be dealt with at that stage even, and this is an observation rather than an invitation, by way of renewing an application for permanent stay.”

Judge Wright had left open the possibility of a further application before him if circumstances warrant it.  This underlines the fact sensitive nature of the decision.  Judicial review is rarely appropriate for such decisions.

11.  Regarding the second issue, the issues which are said to arise on Judicial Review are:

“	(1)	Whether there was bad faith on the part of the Administration and/or the ICAC (so that the criminal proceedings against the Applicant should be stayed solely on this ground);
	(2)	Whether the telephone interceptions violate Article 30 Basic Law and has infringed the Applicant’s right to privacy; and
	(3)	If yes, whether to allow the continuation of the trial is consistent with the Court’s duty to preserve the integrity of the criminal justice system and to foster public confidence in the administration of justice.”

12.  Section 33 of the Telecommunications Ordinance was enacted in 1963.  The Hong Kong Bill of Rights Ordinance, Cap383 was enacted in June 1991.  Article 14 of that Ordinance provides:

“	(1)	No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
	(2)	Everyone has the right to the protection of the law against such interference or attacks”

The Basic Law, of course, came into force on 1 July 1997.

13.  Whether authorization by the Chief Executive under section 33 and the policy laid down by the Security Bureau or the procedures prescribed by the ICAC constitute “legal procedures” as contemplated by Article 30 may require consideration in an appropriate case.  Judge Wright found it unnecessary to decide whether section 33 was inconsistent with Article 30of the Basic Law (Article 30)or whether the interception had infringed the Applicant’s right to privacy.  However, Judge Wright has made it perfectly clear that he would have decided the question had he found it necessary to do so.  We do not believe Judge Wright could be faulted.

14.  Judge Wright held that there was no bad faith.  More importantly, he also held that even if Article 30 had been contravened this is not a case where he would stay the prosecution.  These were decisions made by him on the basis of all the material available to him.  We do not believe there is any ground for judicial review.  As Lord Steyn said in R v Latif [1996] 1 WLR104 at 112H:

“The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.” 

See also HKSAR v Lee Ming Tee and Securities and Futures Commission, where this dictum was cited by Sir Anthony Mason NPJ at Para. 182.

15.  Lee Ming Tee (No. 1) is clear authority that even if there had been a breach, a stay on the second basis would only be granted in very rare cases.  There, the Court of Final Appeal was concerned with the right to a trial without undue delay which is protected by Article 39 of the Basic Law and the Hong Kong Bill of Rights Ordinance.  Ribeiro PJ said at 151G:

“The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.  For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process.  The instances where such an argument has any prospect of success must necessarily be very rare.”

16.  If it be suggested that a stay of prosecution must be granted if a contravention of Article 30 is shown, we do not believe that to be reasonably arguable.

Appeal from Hartmann J

17.  It is said that Hartmann J erred because although he held that the Applicant has clearly established a prima facie or arguable case, he held that the present case was not an exceptional one which would justify the grant of leave with the inevitable postponement of the proceedings.  Hartmann J was of the view that the criminal proceedings in the District Court should continue and that the Applicant could argue the issues in the Court of Appeal if she was eventually convicted.

18.  Mr Dykes argued that an exceptional case was not required.  Nor was the possibility of appeal a good reason to refuse leave.  He submitted that in an appropriate case the existence of an arguable or prima facie case is sufficient.  Lastly, he submitted this is an exceptional case so leave should be granted.

19.  Hartmann J was of the view that the integrity of the criminal process must prevail.  He said

“When a criminal trial has commenced, it is accepted that only in exceptional cases will the trial be interrupted – perhaps for many months – to enable a matter of law to be resolved.”

20.  That also was the view of Keith J in Secretary for Justice v Lee Wai Man and others [1999] 1 HKLRD 572, where he refused application for leave to apply for Judicial Review brought by the Secretary for Justice who was dissatisfied with a Magistrate’s decision to exclude certain evidence.  He said at 575 at B:

“However, to interrupt a criminal trial to enable a party disappointed by a ruling on the admissibility of evidence to challenge that ruling in the course of the case is extremely rare.  That is because it is thought to be highly undesirable to interrupt the ebb and flow of the trial.  If there exists an alternative route by which the injustice done to the party adversely affected by the ruling can be remedied, that route should be taken.”

21.  In Commissioner for Labour and Arron v Jetex HVAC Equipment Limited [1994] 3 HKC, Litton JA (as he then was) was of the view that Hartmann J could properly have refused leave.  He was of the view that although what was called a jurisdictional point was invoked, the Magistrate should have gone on with the trial and the defendant, if convicted, should appeal.

22.  It is helpful to note what this Court has said about section 81 of the Criminal Procedure Ordinance, Cap. 221, under which a question of law which may arise on the trial of any indictment could be reserved by the Court of First Instance or the District Court for determination by the Court of Appeal.  In R v SinYau Ming [1992] 1 HKCLR127 at 136 L. 34, Silke V-P observed:

“It is by far the better practice, while this unfortunate section remains on our statute books, that, where such a question of law does arise, it is reserved at the conclusion of the trial when all the evidence is in, and is therefore available to this court, and the judge has come to a decision upon the matter.  It can then, and it should be, part of the appellate procedure.”

He added:

“	While it is not for this court to fetter a discretion conferred upon a judge, nevertheless recourse to and reservation under section 81 should be the subject of the most careful scrutiny and orders made only in the rarest of cases.
	It is not helpful to reserve a question of law … and to require this court to consider its decision on the question raised before any evidential background is available.”

23.  These authorities support the view that criminal trials should not be interrupted and that points of law should be decided when all the evidence is in.  These authorities also support Hartmann J’s view that only in exceptional cases should criminal proceedings be permitted to be interrupted by proceedings for judicial review.  Mr Dykes argued that an exceptional case was not required.  He said leave should be granted in an appropriate case.  We doubt if there is any difference between them.  In any event we are of the view that this is neither an exceptional nor an appropriate case for leave.

24.  Mr Dykes submitted that R v Hereford Magistrates Court, ex parte Rowlands [1998] QB 110, shows that the availability of alternative remedies is not a good reason to refuse leave.  There, the complaints were that the applicants did not have a fair trial before a Magistrate who had convicted them.  The question was whether they should be refused Judicial Review because they had the alternative remedy of an appeal.

25.  In R v Peterborough Magistrates’ Court ex parte Dowler [1997] QB 911, relief by way of Judicial Review was refused because there was an equally effective and convenient remedy, namely, an appeal.  But in ex parte Rowlands, Lord Bingham of Cornhill CJ in delivering the judgment of the divisional court said at 123:

“	While we do not doubt that ex parte Dowler [1997] QB 911 was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates’ court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court. So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates’ courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts. The crucial role of the magistrates’ courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained.
	Two notes of caution should however be sounded. First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates’ court. Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates’ courts as of all other courts. This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown. Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one.”(emphasis added)

26.  Ex parte Rowlands was concerned with situations where the complaint was that the trial was unfair.  In effect, the applicants had been denied a trial.  Thus, the unfair trials were quashed so that they should have a fair trial before the Magistrates.  Here, the complaint is not that the trial before Judge Wright was unfair but that it was unfair to try the Applicant.  See: R v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] AC 42 at 74L, where Lord Lowry underlined the distinction.

27.  R v Bradford Justices, ex parte Wilkinson [1990] 1 WLR692, was also a case where the Applicant had not had a fair trial.

28.  Here, as we have said the complaint is not that the applicant has not had a fair hearing before Judge Wright.  We are also of the view that the availability of an alternative remedy is relevant to the exercise of discretion whether to grant leave.

29.  Mr Dykes also relied on Tan v Cameron (above) as a case where leave to apply for Judicial Review to stay criminal proceedings was granted.  There is no doubt that in a suitable case, which will be very rare, the Court will permit its supervisory jurisdiction to be invoked.  But for the reasons given by Hartmann J, we are of the view that this is not a suitable case.

30.  We do not believe Hartmann J has erred in refusing leave.  He did so after making the generous assumption that there are relevant arguable grounds, we see no reason to interfere.  Indeed, if we were to exercise our discretion, we would also refuse leave.  First, because we do not believe there are any relevant arguable grounds.  Secondly, even on the basis that there are arguable grounds, we would also refuse leave for the reasons given by Hartmann J and expanded on by us.

31.  For the above reasons we dismissed the appeal.