HKSAR v. CHOW SHUN CHIU

HCAL763/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 763 OF 2001

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J U D G M E N T

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Introduction

1. On 16 January of this year, the applicant appeared before a magistrate at Fanling Magistracy charged with an offence under the Copyright Ordinance, Cap.528. The offence was one of possessing infringing copies of copyright works for the purpose of trade or business. The charge alleged that as far back as September 1998, at a shop in the New Territories, the applicant had been found in possession of a large number of what are commonly called 'fake' or 'pirated' compact discs.

2. At the commencement of the hearing, it was contended by counsel for the applicant, Mr Chandler, that the magistrates court had no jurisdiction to hear the matter. The magistrate ruled that the court did possess jurisdiction and that the trial should proceed. Thereafter, on amended grounds, the magistrate was asked to review his decision. Expressed broadly, the central contention of the amended grounds was that the applicant had earlier, in the District Court, been convicted of the same offence with which he was now charged and that he had successfully appealed that conviction, the Court of Appeal quashing the conviction and setting aside the sentence but not ordering a retrial. That being the case, in the absence of an order for retrial, there was no jurisdiction for a new retrial to take place.

3. It appears to me that the applicant's amended grounds amounted in effect to a plea of autrefois acquit and not a plea to the jurisdiction of the court. The magistrate, however, understood the applicant to be objecting to jurisdiction and, having heard submissions, ruled that he saw no reason to change his earlier ruling 'on jurisdiction'.

4. It is in respect of these two decisions of the magistrate (dated 16 January and 20 February 2001) that these proceedings for judicial review have been brought. The applicant seeks an order of certiorari removing both decisions to this court and quashing them; the result, in practical terms, being either a declaration that the magistrates court does not have jurisdiction to hear the charge laid against the applicant or that the plea of autrefois acquit was validly raised and acted as a bar to further proceedings.

The background

5. On 30 August 1999, the applicant was charged with the offence to which reference has already been made. It was an offence contrary to sections 118(1)(d) and 119(1) of the Copyright Ordinance. The matter came before a magistrate who directed that it should be transferred to the District Court for hearing.

6. A trial was conducted in the District Court, and in December 1999 the applicant was convicted and sentenced to 20 months' imprisonment. The applicant appealed. He did so initially on the basis that the judge had been in error in his approach to certain of the evidence and that the conviction was unsafe and unsatisfactory. However, in the perfected grounds of appeal only one ground was argued; namely, that the offence of which the applicant had been convicted was a summary offence triable only in the magistracy and that no jurisdiction was vested in the District Court to hear the matter.

7. It appears that the issue of jurisdiction had arisen earlier in a number of other cases where charges had been laid under sections 118(1)(d) and 119(1) of the Copyright Ordinance and the matters transferred to the District Court for trial.

8. The issue first came before the Court of Appeal in March 2000 in the case of HKSAR v. Tang Siu Kwong and another [2000] 2 HKC 313 when two applications for leave to appeal were consolidated on the basis that in respect of each the sole issue was that of jurisdiction. In giving the judgment of the court, Stuart-Moore V-P found that offences under section 118(1) of the Copyright Ordinance could only be tried summarily as the words 'upon indictment' or 'on indictment' did not appear in section 119(1) which provided penalties for these offences. There was therefore no jurisdiction within the provisions of section 88(1) of the Magistrates Ordinance for a magistrate to transfer such matters to the District Court unless a defendant was also accused of an indictable offence. That being so, the transfer of the cases to the District Court had been in error and was a nullity. In this regard, the Vice President said the following (at page 317 F-H) :

" It is readily apparent, as Mr Saw has conceded, having brought this court's attention to the problems which have been encountered in these cases, as well as having initiated these applications, that the transfer of these summary offences on their own, unaccompanied by an indictable offence, was null and void. The magistrate had no jurisdiction to make an order transferring them to the District Court. Indeed, the jurisdiction over these cases remains vested now with the magistrate. We should perhaps add that where a magistrate has acted in excess of his jurisdiction, he is nevertheless competent to exercise his jurisdiction properly as Mayo J (as he then was) said, relying on what was stated in R v West (1964) 46 Cr App R 296 at 312, in Attorney General v Nunns (Permanent Magistrate) & Anor [1987] 2 HKC 294 at 296D."

9. The court did not order a retrial in respect of either of the consolidated applications for leave to apply.

10. The power to order a retrial is defined in section 83 of the Criminal Procedure Ordinance, Cap.221. In this regard, section 83(3) reads :

" An order of the Court of Appeal quashing a conviction shall, except when under section 83E the appellant is ordered to be retried, operate as a direction to the court of trial to enter, instead of the record of conviction, a judgment and verdict of acquittal."

Section 83E deals specifically with orders for retrial and reads (in part) :

" (1) Where the Court of Appeal allows an appeal against conviction and it appears to the Court of Appeal that the interests of justice so require, it may order the appellant to be retried."

11. On 17 May 2000, the appeal of the applicant was heard by another division of the Court of Appeal. It was one of a number of appeals on the same point which were coming before the Court of Appeal at about that time. It is for that reason no doubt that the Court of Appeal, in allowing the applicant's appeal, saw no purpose in giving reasons. To do so would only have entailed a repetition of what Stuart-Moore V-P had said some two months earlier. In the applicant's appeal, the judgment was therefore to the following effect :

"Application for leave to appeal against conviction is granted. Hearing of the application be treated as hearing of the appeal. Appeal against conviction is allowed. Conviction is quashed and sentence is set aside."

12. As in Tang Siu Kwong (supra), the Court of Appeal did not order a retrial.

13. On the understanding that the magistrates court remained competent to exercise its jurisdiction in the matter, in June 2000 the prosecuting authorities requested the magistracy in Fanling to fix a date for trial in that court. No new information was laid or fresh charges brought. The request was complied with, and on 16 January of this year the matter came before Mr William Lam for trial.

Issues for determination

14. On behalf of the applicant, Mr Chandler has contended that this judicial review concerns two issues. They may be expressed as follows :

(a) whether, in the absence of an order made by the Court of Appeal for a retrial, although the magistrates court remains competent to exercise its jurisdiction, it is lawfully able to do so in the absence of such an order; and

(b) whether, before a magistrate could hear the matter, a fresh information had to be laid and fresh charges brought (in which event they would be out of time), or whether it was sufficient to proceed on the existing information and charges.

15. However, Mr Saw, for the respondent, raised a preliminary issue of importance; namely, whether in the circumstances of the matter, which concerns criminal proceedings at first instance, judicial review is an appropriate procedure.

Is judicial review appropriate?

16. Mr Saw argued that if this application for judicial review had not been brought and the matter had proceeded to trial, it may be that the magistrate would have dismissed the information and acquitted the applicant. If that had occurred then plainly the applicant would have had no further interest in the matter. The need for these additional proceedings would then have been obviated. If the applicant had been convicted, he would have been able to appeal to a single judge of the High Court, that judge being empowered to deal with what has loosely been called the jurisdiction point and any other grounds of appeal that were raised. Additionally, in terms of section 118(1)(d) of the Magistrates Ordinance, Cap.227, if the single judge deemed it appropriate, any matter of law may have been reserved to the Court of Appeal for determination. To employ Mr Saw's words, that would be "all the more apposite in the instant application given that it is inferentially the applicant's case that the decision of the Court of Appeal in Tang Siu Kwong (supra) is, in part, in error".

17. It is Mr Saw's general contention that the applicant has open to him a structured series of remedies, all contained within the criminal process, and that, before coming to this court to seek a remedy by way of judicial review, he is obliged to exhaust those remedies. Interposing a judicial review hearing into proceedings which of themselves offer entirely appropriate avenues of possible redress only brings about unnecessary delay and expense. Judicial review, contended Mr Saw, was intended in matters of this kind as an avenue of last resort, reserved only for exceptional cases, and for that reason this court should refuse the application.

18. Mr Saw is supported in his contention by considerable authority. In R. v. Inland Revenue Commissioners ex parte Preston [1985] AC 835, a decision of the House of Lords, Lord Scarman said (at page 852) :

" My fourth proposition is that a remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures .... it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. ...."

19. In the same case, Lord Templeman said, as a statement of general principle, that "judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers". However, he went on to qualify that statement by saying that the judicial review process should not be allowed to supplant the normal statutory appeal procedure except in exceptional cases. Such exceptional cases did not include cases where 'errors of law' which might otherwise be the subject of judicial review could be corrected in the appeal process. Judicial review, he said, echoing the words of Lord Scarman, should not be granted 'where an alternative remedy is available'.

20. Although the subject is, academically at least, a controversial one (see, for example, Administrative Law by Sir William Wade and Christopher Forsyth, 8th Edition, at pages 693-696), it is clear that in recent years the Hong Kong courts have increasingly adhered to the principle that the collateral procedure of judicial review is not to be employed when alternative and entirely appropriate remedies exist by way of appeal. In Jetex HVAC Equipments Ltd v. Commissioner for Labour and Another [1995] 2 HKLR 24 (at page 29), Litton JA said :

".... Soon after the magistrate's ruling Jetex applied for and was given leave to issue proceedings by way of judicial review. In my judgment the judge entertaining that application could properly have refused leave.

The magistrate was dealing with a criminal prosecution and judicial review of decisions made in the course of a criminal trial ought to be closely scrutinised. Here the magistrate had made an order which, in his judgment, dealt with the so-called preliminary point raised by the defence. Right or wrong, it was simply one step in the criminal process, even though it went to what counsel called a jurisdictional point. ...."

He continued :

" If the magistrate, upon the determination of the whole case, had convicted Jetex, it was open to them to appeal under Part VII of the Magistrates Ordinance: and the point they wished to raise in the judicial review proceedings could then have been raised on appeal. And if the magistrate had dismissed the information and acquitted Jetex, they plainly had no further interest in the matter and could not have pursued an academic point by way of judicial review ...."

21. In the same case, Penlington JA said :

".... There is authority to which Mr. Remedios has referred us, R. v. Wimbledon Justices, ex parte Derwent [1953] 1 All ER 390, that the High Court may make an order of prohibition to stop a Magistrate from conducting proceedings in excess of jurisdiction. It is however in my view a course which is full of the danger which has emerged here: that there will, as a consequence, be very long delay and leave should be given to apply for judicial review, and such an order made, only in exceptional circumstances. Judicial review is a remedy to be granted where there is no other alternative remedy. Here there was no evidence that the hearing of the information will have taken a great deal of time and if at the conclusion of that hearing the defendants had been convicted they had the normal right of appeal to the High Court ...."

22. More recently, in The Secretary for Justice v. Lee Wai Man and others, HCAL No.13 of 1999, Keith J (as he then was) said :

".... 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. ...."

23. In the matter of Ng Pak Min v. HKSAR, HCAL No.70 of 1999, in refusing an application for leave to apply for judicial review, Stock J (as he then was) said :

" Judicial review is supposed to be an avenue of last resort, and it will only be in the most exceptional circumstances that a court would stop criminal proceedings in limine. ...."

24. The remedies provided by administrative law; that is, declaration, injunction, certiorari, prohibition and mandamus, are discretionary. In the present instance, therefore, it lies within the discretion of this court, taking into account all relevant factors, whether to entertain or refuse the application. If it is to be entertained, then clearly when alternative remedies exist within the structure of the criminal process, the grounds must be exceptional. Are they, however, sufficiently pressing (for example, do they go to the root of the magistrate's jurisdiction?) so that this court is constrained to employ its long-established supervisory jurisdiction rather than leaving the applicant to seek his remedies, if convicted, by way of appeal?

25. The finding of the Court of Appeal in Tang Siu Kwong (supra) is unambiguous. It bears repeating :

".... The magistrate had no jurisdiction to make an order transferring them [the cases] to the District Court. Indeed, the jurisdiction over these cases remains vested now with the magistrate. We should perhaps add that where a magistrate has acted in excess of his jurisdiction, he is nevertheless competent to exercise his jurisdiction properly ...."

As I read it, the Court of Appeal has said that, while the cases had quite properly come before the magistrate, he had no jurisdiction to transfer them to the District Court. It had been that act of transfer which was in excess of jurisdiction, rendering it a nullity, and which rendered all proceedings consequent upon it a nullity too. When the acts made without jurisdiction were declared null and void, what remained was what had been extant immediately before the purported transfer; namely, a set of criminal proceedings validly brought before the magistrate which at all times he was competent in law to try and determine. In the result, there was no need for any specific direction to the magistrate to empower him to try the matter; he was already vested with that power.

26. In coming to its findings, the Court of Appeal relied on the authority of R. v. West (1964) 46 Cr. App. R. 296. The headnote, a decision of the Court of Criminal Appeal, reads :

" Section 7 of the Accessories and Abettors Act, 1861, deals only with the venue of trials of accessories before and after the fact. It does not give magistrates power to deal summarily with a charge of being accessory after the fact to felony and that offence remains triable on indictment only.

Justices purported to deal summarily with a charge of being accessory after the fact to felony and to acquit the prisoner. Subsequently, a charge that was substantially the same was preferred before justices who sat as examining justices and committed the defendant for trial at quarter sessions. Quarter sessions held that the committal and indictment were valid and that they had jurisdiction to try the prisoner.

Held, that quarter sessions were entitled to examine the evidence and see whether the purported acquittal was an effective acquittal by a court of competent jurisdiction; that, as the justices who purported to deal with the charge summarily had acted without jurisdiction, no question of autrefois acquit or res judicata could arise; and that quarter sessions had rightly held the committal and indictment to be valid, and were right in proceeding with the trial."

27. As I understand it, Mr Chandler has argued substantially the same case as the unsuccessful appellant in West (supra); namely, that as the applicant has had his conviction quashed and no order has been made for a retrial, he stands fully and finally acquitted of the offence and the plea of autrefois acquit is open to him. Mr Chandler accepts, of course, that, as a general rule, the plea of autrefois acquit is not open to an accused person when the former proceedings have been a nullity. See, for example, R. v. Kent Justices, ex parte Machin [1952] 2 QB 355. He contends, however, that the order which is decisive in this case is the order of the Court of Appeal quashing the applicant's conviction. It is his contention that the lack of any order for a retrial in that order places the applicant in the position of a person lawfully acquitted of the offence and unable to be tried again for that same offence.

28. Therefore, as I comprehend the substance of Mr Chandler's argument, it follows that the applicant seeks judicial review of the proceedings in the magistracy on the basis that he has a valid plea of autrefois acquit which has not been accepted by the magistrate. The plea of autrefois acquit is a plea in bar; if accepted, it is a plea which acts as a bar to the continuance of the proceedings. If validly raised, it does not render all subsequent proceedings a nullity. It is not a plea to jurisdiction. Nor, if validly raised, does it render the subsequent proceedings unlawful as constituting an abuse of power by the magistrate.

29. Nor, it seems to me, can res judicata be raised as the previous hearing in the District Court has been declared a nullity. There has been, therefore, no previous adjudication of the issue.

30. I have already said that the remedies provided by administrative law are discretionary. In the exercise of that discretion, I believe that it is necessary to bear in mind the fundamental difference between the procedure of appeal and that of judicial review. An appeal relates essentially to the merits of a matter. Judicial review is concerned with the legality of a whole process.

31. Certainly, it has been argued that the magistrate has made rulings which are wrong in law and which may therefore be regarded as being ultra vires. But that, of itself, does not bring the matter within the ambit of judicial review.

32. In my judgment, the remedies sought, by the applicant in this case lie fully within the criminal process. The validity of a plea of autrefois acquit has historically rested with the courts of criminal appeal. In this instance, the magistrate has clearly felt himself bound by the directions of a criminal division of our Court of Appeal in Tang Siu Kwong (supra) while the applicant has argued that two other decisions of the court should apply; namely, R. v. Tse Sun-miu [1994] 2 HKLR 78 and R. v. So Mun-sung [1994] 1 HKCLR 132.

33. I accept that the magistrate's ruling, if given in favour of the applicant, would have been determinative of the whole case, but, while that is clearly a relevant matter in deciding how best to meet the real justice of the case, it cannot be decisive. Many rulings in criminal trials may effectively determine the outcome but nevertheless they remain, as Litton JA expressed it, simply steps within the criminal process.

34. The long-established supervisory jurisdiction of this court will, of course, be used when the need arises to ensure the integrity of proceedings in the magistrates courts; that is, when matters go to the fundamental legality of the process, where, for example, it is alleged that the courts are acting without jurisdiction, that an abuse of power is being perpetrated or that the proceedings constitute a breach of natural justice. But in the present case, I am satisfied that no such claim is in substance being made. It would be wrong, I believe, for this court, in practice, to allow itself to become a collateral court of appeal to which recourse may be had by obtaining in each instance a stay of proceedings. That would add to delay, add to costs, result in a proliferation of proceedings and rather than ensuring the integrity of the criminal process would go towards undermining it.

35. I am therefore satisfied, for the reasons given, that the application for judicial review should be refused.

36. I do not intend to comment on the merits of the application. The matter is returned to the magistrate for trial and, if the applicant is convicted, other courts may in due course be called upon to pronounce on the matter.

37. The application for judicial review is therefore dismissed and the stay of proceedings in the magistracy uplifted. There will be an order nisi that costs are to follow the event and are awarded to the respondent.