LAM KIN MAN v. THE COMMISSIONER OF CORRECTIONAL SERVICES

HEADNOTE

    Abuse of process - inherent jurisdiction - principle in Yat Tung Investment Co. Ltd. v. Dao Heng Sank Ltd. [1975] A.C. 581 applied to Habeas Corpus proceedings - Reg. v. Governor of Brixton Prison ex parte Tarling [1979] 1 WLR 1417 followed - what constitutes "the same grounds" in section 23(1) Supreme Court Ordinance Cap. 4.

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J U D G M E N T

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Litton, J. A.:

Introduction

1. On 7 April 1992 Mayo J. made an Order in Habeas Corpus proceedings that all further proceedings be stayed and that the appellant Law Kin Man should continue to be detained in the custody of the Commissioner of Prisons. This Order was made by the judge when the Commissioner made his return to a Writ of Habeas Corpus, pursuant to an application by counsel for the Commissioner that those proceedings should be stayed or dismissed as an abuse of process. The judge stayed the proceedings without consideration as to their merits. Against that order the appellant now appeals to this court.

History

2. I now give a brief history of the matter.

3. Law Kin Man was wanted by the US Government to stand trial in New York for alleged violation of Federal narcotics laws. Indictments were filed in October 1989 charging him with one count of conspiracy to import heroin and five counts of possession of heroin with intent to distribute.

4. A request was made by the US Government for his surrender and pursuant to that His Excellency the Governor, in implementation of arrangements for extradition referred to in the Order-in-Council dated 15 December 1976, made an Order to Proceed. It was addressed to "the Chief Magistrate of Hong Kong Central Magistracy Hong Kong" dated 22nd March 1990. This was followed by a supplemental order addressed in the same way^-dated 28th March 1990. On 4th April 1990 the Magistrate Mr. Andre-Wiltens) at the Central Magistracy, on the conclusion of proceedings before him, made an order that the appellant be detained pending extradition to the USA.

5. In August 1991 the appellant applied to the High Court for leave to issue a Writ of Habeas Corpus on the ground that the Order to Proceed was a nullity, having been addressed to "the Chief Magistrate", a post which had ceased to exist since 1862. On 29th August 1991 this application (made ex-parte) came before Sears J. who dismissed it but the judge granted a stay of his order pending the filing of a notice of appeal against his refusal of leave. The appellant then appealed to the Court of Appeal who heard the appeal ex-parte on 9th January this year. The Court of Appeal in an ex tempore judgment held that there was room for argument as to the statutory provisions governing extraditions and as to the powers and nature of the office of the person known as Chief Magistrate. Further, as to the facts, the Court of Appeal thought that more information was needed as to what transpired between the issue of the Orders by the Governor and the hearing before Mr. Andre-Wiltens, the Magistrate. So the Court of Appeal reversed the order of Sears J. and ordered that leave be given to the appellant to issue a Writ of Habeas Corpus. On 16th January 1992 a Writ of Habeas Corpus was issued, directed to the Commissioner of Prisons, Lai Chi Kok Reception Centre, and this was accompanied by a Notice requiring the Commissioner to have the appellant brought before Kaplan J. on 6th April 1992. But as things transpired the registry fixed the hearing before Mayo J. so the return was made before the same judge.

Mayo J's Jurisdiction

6. We have been told today, although the matter is not. apparent from the papers before us, that when counsel for the appellant first appeared before Mayo J. he objected to the judge hearing the matter because the Notice accompanying the writ stated that the return was to be made before Kaplan J. The matter, it was said, went to Mayo J.'s jurisdiction to deal with the return. We are told that Mayo J. then stood the matter down temporarily and counsel then went informally before the Court of Appeal, asking the court to amend the Notice, to substitute Mayo J.'s name for that of Kaplan J. This was, according to counsel, to enable Mayo J. to lawfully deal with the return. The Court of Appeal declined the application, so the matter then continued before Mayo J. with the Notice unamended.

Order 54 r.5

7. Now before us the appellant makes the following points:

(1)    He draws attention to Order 54 r.5 of the Rules of the Supreme Court which is in these terms:

"Where a writ of habeas corpus ad subjiciendum is ordered to issue, the judge by whom the order is made shall give directions as to the judge before whom, and the date on which, the writ is returnable".

(2)    When the Court of Appeal, on 9th January 1992, ordered the writ to issue the Court gave no directions in accordance with Order 54 r.5.

(3)    The Notice issued out of the Registry is not a "direction" in compliance with Order 54 r.5 and

(4)    This Court therefore should now cure the defect and give directions to comply with Order 54 r.5 : with the consequence, so counsel submits, that everything that has gone before should be treated as a nullity.

8. Now, as I view the matter, the failure by the Court of Appeal to give directions on 9th January 1992, when it reversed Sears J. and ordered the Writ to issue, was at most a procedural irregularity. Once the point was perceived the appellant could have invoked Order 2 r.2 and applied to set aside the Notice as an irregularity. The application could have been made on 9th April 1992 before Mayo J.

The fact is that the Notice itself was duly served. It was in the appropriate form : see Order 54 r.6(4). The Commissioner has duly made his return. It is difficult to see how in these circumstances it could be said that Mayo J. lacked jurisdiction. It is equally difficult to see why this court should now, as it were, wind the clock back and make directions under Order 54 r.5 - except to nullify in effect what has gone on before. This I would decline to do. It was for these reasons that this morning we dismissed this part of Mr. Sarony's application before us.

Abuse of Process

9. I turn now to the question of abuse of process. In essence what Mayo J. held was this : Where an applicant invokes the jurisdiction of the court to protect his legal rights, such as the appellant Mr. Law does by asking for his discharge from custody, he must in his initial application put forward the whole of his case. He cannot keep part of it back in order to make successive applications. The court can in the exercise of its inherent jurisdiction,   ⁱn order to protect its own process, stay proceedings which are an abuse of process. Now the broad principle in relation to civil proceedings has been laid down by the Privy Council in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581 and was held by Gibson J. to apply to Habeas Corpus proceedings in R. v. Governor of Brixton Prison Ex parte Tarling [1979] 1 WLR 1417. This has been followed in a number of cases cited to us by Mr. Andrew Li, Q.C.: see Ali v. Secretary of State for the Home Department (1984) 1 WLR 663 at 669H and R. v. Governor of Brixton Prison Ex parte Osman (No. 4) (1992) 1 All E.R. 579 at 583-4.

10. There is in fact a separate statutory ground for staying the proceedings upon which the judge appears also to have relied. It is section 23 of the Supreme Court Ordinance Cap. 4 which reads:

"Notwithstanding anything in any law or rule of court, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made to the High Court or any judge thereof by or in respect of that person on the same grounds, unless fresh evidence is adduced in support of the application."

11. I turn now to consider the grounds for the appellant's application. The ground relied on by the appellant in his present application is that the magistrate Mr. Andre-Wiltens who committed him to the custody of the Commissioner of Prisons was not the Chief Magistrate named in the Governor's Order to Proceed dated 20 March 1990. Moreover that post did not exist. This issue, says Mr. Sarony, Q.C. for the appellant, was considered by the Court of Appeal on 9th January 1992 to be at least arguable, albeit the Court of Appeal expressed its view on an ex parte application, and no contrary arguments were heard. Mr. Sarony asks this : Without consideration of the merits of the point, which goes to the jurisdiction of the magistrate, how can it be said that the application for discharge is an abuse of process?

12. Now whatever the merits of the point, which have not been argued before us, for my part it is difficult to see how it can be said that it goes to the jurisdiction of the magistrate Mr. Andre-Wiltens. His powers to order the detention of the appellant come from para 5(1)(a) of the Schedule to the Extradition Act 1989 and section 3 of the Extradition (Hong Kong) Ordinance Cap. 236. There was unquestionably an Order by the Governor signifying that a request for extradition had been made by a requesting state in respect of Mr. Law. Mr. Andre-Wiltens was unquestionably in receipt of such an Order, whether directly or indirectly.

13. But assume that, arguably, the matter does go to jurisdiction. There were three separate occasions when it might have been raised. (1) On the 26th March 1990 and the three successive days thereafter when the Magistrate heard the evidence pursuant to the Governor's Order to Proceed. (2) In April 1990 in Miscellaneous Proceedings 1113 of 1990 when the appellant made his first Habeas Corpus application and (3) in April 1991 when the second application was made in Miscellaneous Proceedings 1228 of 1991.

14. Now in his second application MP 1228 of 1991 the appellant's ground was that the appointment of Mr. Andre-Wiltens as a magistrate was invalid and therefore he lacked jurisdiction to deal with the extradition proceedings under the Order of the Governor. That second application was eventually heard on 24th June 1991; in the meanwhile, Ryan J. had given judgment in Lau Chau-wah v. The Kingdom of The Netherlands MP 1619 of 1991 in which he held that an Order to Proceed made by the Governor addressed in identical terms as in this case was a perfectly valid Order; it identified the judicial officer known administratively as the Chief Magistrate of the Central Magistracy. So the point now sought to be advanced was not a novel one within the legal profession of Hong Kong. Whilst normally the court would be slow to shut a person out, particularly on a matter of personal liberty, unless the court is satisfied that the case has no merits, the circumstances here are, in my judgment, wholly exceptional. As Mayo J. remarked, no explanation has been given why the point now taken was not taken before August 1991. The inherent jurisdiction of the court to stay proceedings for abuse of process is broad and discretionary. I cannot for my part see how it can be said that Mayo J. has erred in exercising his discretion the way he did.

15. As for the provisions of section 23 of the Supreme Court Ordinance it would seem to me that here they are equally applicable. The ground advanced in the second habeas corpus application was that the magistrate lacked jurisdiction. The same ground is advanced^-in the third application with which we are now concerned. The reasons are not identical : In the second habeas corpus application, it was that the magistrate was not duly appointed. In the third application, it was that he was not duly nominated to consider the particular case. For each of those reasons it is said that he lacked jurisdiction. But it seems to me that in terms of section 23 the case comes within the scope of the statutory provisions : essentially, the same grounds were relied on in the second and third applications : that the magistrate lacked jurisdiction. For these reasons I would dismiss the appeal.

Kempster, J.A.:

16. I agree with my Lord Litton J.A. that this appeal should be dismissed. I also agree with his reasons for so concluding.

Kaplan, J.:

17. I entirely agree with all that has been said by my Loud Litton J.A. I can usefully add nothing to his judgment. I too would dismiss this appeal.