WONG CHI WAI v. SECRETARY FOR JUSTICE

HCAL 348/2025

[2025] HKCFI 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 348 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 7 February 2025, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Magistrate, Tsang Hing-tung Patrick, dated 19 November 2024, refusing a stay of the criminal proceedings brought against him in Case No. WKCC 2388/2024 (“Refusal of Stay Decision”).

2.  Having considered the materials provided with the application, I am satisfied that it is appropriate to deal with this case on the papers. This is my Decision.

B.  Relevant Context

3.  The brief context for the intended challenge is as follows.

4.  Case No. WKCC 2388/2024 relates to an indecent assault alleged to have been committed by the Applicant on a Miss Y. But that case follows the acquittal of the Applicant for an alleged indecent assault on a Miss X in Case No. WKCC 1679/2023, after the Applicant had been arrested for the alleged indecent assault on both Miss X and Miss Y under the same police file reference.

5.  In previous proceedings HCAL 1337/2024, the Applicant had sought leave to apply for judicial review of the continued prosecution against him in Case No. WKCC 2388/2024. By my Decision dated 2 September 2024 [2024] HKCFI 2269, I dismissed the application on various grounds including that: (1) the challenge was to a prosecutorial decision of the DoJ which was not amenable to judicial review; (2) all of the Applicant’s arguments were capable of being raised by the Applicant within the criminal proceedings, so that there was therefore an available alternative remedy open to him; and (3) the Applicant had in fact already made the application for a permanent stay of proceedings, to be heard on 13 September 2024, with the benefit of written submissions filed in advance, so that the Applicant was exercising his rights in pursuing that available alternative remedy.

6.  It seems that the stay application was indeed heard on 13 September 2024. In his Form 86, the Applicant states that the Magistrate heard oral submissions both on that date and on 16 October 2024, before reserving his decision. The Refusal of Stay Decision was subsequently delivered orally on 19 November 2024. But, the Applicant makes various criticisms of that decision.

7.  In any event, because of the Magistrate’s Refusal of Stay Decision, the trial of the Applicant is now due to go ahead on 10 to 13 March 2025.

C.  Application is Misconceived

8.  Even if no right of appeal lies from the impugned decision of the Magistrate, that does not mean that there is no available alternative remedy.

9.  This is clear from the Court of Final Appeal’s decision in HKSAR v Chen Keen (No. 2) (2022) 25 HKCFAR 34. At the section of that decision headed ‘The refusal of the stay is not a final decision’ at §§12-18, Lam PJ held:

(1)  The refusal by a court to grant a stay of criminal proceedings does not dispose of the matter.

(2)  It is an order made before the criminal trial has run its full course.

(3)  Further, the refusal of the stay is not final because the merits of the decision could be reviewed on appeal (in that case on appeal to the Court of Appeal).

(4)  Whilst it is not possible to bring an immediate appeal to the Court of Appeal against the refusal of a stay by a Judge of the Court of First Instance in a criminal trial, the decision can be challenged later in the Court of Appeal if the accused were eventually convicted.

(5)  An appeal against a conviction can be brought on the ground that the trial should have been stayed.

(6)  The prohibition against an immediate appeal is dictated by the policy against fragmentation of the criminal process.

(7)  An interlocutory challenge to a decision made in the course of a criminal trial, if permitted, would result in the fragmentation of the criminal process which would inevitably bring disruption and delay to the final disposition of a criminal matter.

(8)  Instead, erroneous judicial decisions in the course of a trial could and should be corrected by way of appeal against conviction.

10.  Though the Applicant faces trial in the Magistrates Court, and not the Court of First Instance, it seems to me that the same general principles would be applicable.

11.  In any event, there is a right of appeal from a magistrate in any matter under section 113(1) of the Magistrates Ordinance Cap 227. That section provides that:

Any person aggrieved by any conviction, order or determination of the magistrate in respect of or in connection with any offence, who did not plead guilty or admit the truth of the information or complaint, may appeal from the conviction, order or determination, in any manner hereinafter provided to a judge.

12.  Therefore, under that section, the Applicant has an available alternative remedy in the form of an appeal. That is so, whether the appeal can be pursued at once – albeit forcing fragmentation of the criminal trial process – or needs to await the outcome of the trial, and for any appeal against any conviction to be on the basis of, or to include the basis that, the trial ought to have been stayed. (Of course, if the Applicant is acquitted, no appeal would be needed.)

13.  Hence, an application for leave to apply for judicial review is inapt to the circumstances.

D.  Result

14.  In the circumstances, the Applicant’s application for leave to apply for judicial review stands to be dismissed. I so order. I make no order as to costs.